Ainsworth v. State

• Decision Date: 18 April 1973
• Docket Number: No. 45729,45729
• Parties: Lyndall Lenear AINSWORTH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 517

493 S.W.2d 517

Lyndall Lenear AINSWORTH, Appellant, v. The STATE of Texas, Appellee.

No. 45729.

Court of Criminal Appeals of Texas.

April 18, 1973.

Rehearing Denied May 9, 1973.

Elaine Hocker and Allan J. Showers, Houston, for appellant.

Carol Vance, Dist. Atty., James C. Brough, Jim Skelton, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for the offense of robbery by assault; the punishment was assessed by the court at 12 years.

We are faced at the outset with a challenge to the sufficiency of the evidence to connect appellant with the offense.

The record reflects that appellant was indicted, together with Michael Freeze, Bob Murphy, Joel Taylor and Tom Moody, for the robbery of Jerry Ziegler, the manager of an A & P grocery store in South Houston. Joel Taylor, Tom Moody and the appellant were tried together in this cause.

The state's evidence was adduced primarily from four witnesses: Michael Freeze, an accomplice witness; Jerry Ziegler, the person robbed; Jose Rousseau, a stock checker for the A & P store; and Lieutenant Brookover, the arresting officer.

Michael Freeze, the accomplice witness, related that on the day of the robbery he, the appellant co-defendants Taylor and Moody, and the co-indictee Bob Murphy gathered at Moody's apartment and planned the robbery.

Pursuant to plan, they left Moody's apartment in two cars, a white Buick and an El Camino. The El Camino was parked within a mile of the A & P store. Taylor was left there to pretend he was having car trouble. The appellant, Moody, Murphy and Freeze drove the Buick to the A & P store and parked it around the corner from its entrance. Appellant entered the store first and took a lookout position near the store's window. Then Murphy and Freeze entered the store and asked the manager whether he would cash a payroll check. After the manager, Jerry Ziegler, refused to cash the check, Freeze pointed his pistol at the manager and told him to give them the money from the store's safe. Freeze and Murphy followed the manager into the office at which time Murphy handed him a sack in which to put the money. After all of the money in the safe had been emptied into the sack and after Freeze and Murphy left the manager's office, appellant ran out of the store. Murphy and Freeze ran out behind him. All three ran to where the Buick was parked and where Moody was waiting. As they approached the car Moody asked, 'Did you get it?' and Freeze answered, 'Yes, let's go!' The four men, with Moody driving, left in the Buick and drove to where the El Camino had been left. Once there, the guns and money were transferred to the El Camino. Then Taylor and Moody departed in the Buick. Freeze, Murphy and the appellant changed to the El Camino and went back to the apartment to await the arrival of their companions. They waited there until 5:30 P.M. and finally decided to call the South Houston Police Department to see if their companions had been arrested. When they found that they had been, appellant called his lawyer. Freeze left Moody's apartment shortly thereafter and before the police arrived. A month later, he gave himself up to the police.

Jerry Ziegler testified that around 4:00 P.M. two men (referred to as 'A' and 'B') approached him and asked him whether he could cash a payroll check. After he refused to cash the check, 'A' pointed a pistol at him and said, 'I've got a gun. I will kill you. Get me the money out of the office; don't make a funny move.' 'B' handed him a sack, which he described as a paper sack similar to a grocery sack. He and the two robbers went back to the office where Ziegler took all of the money out of the safe and put it in the sack. He testified that approximately $400 to $500 was taken from the safe. ¹ The manager stated that 'A' told him to lie on the floor and not make a move; there was another man in the store that had a gun on him. 'A' was described by the manager as being athletic looking and wore a banlon shirt. He described 'B' as having a beard, long hair, and 'wore a blue, golf cap with a band around it.'

Jose Rousseau, a stock checker in the store, testified that he was standing in an aisle directly in front of the manager's office when he first became aware that a robbery was taking place. He saw two men enter the office with the manager and could see the manager taking money from the safe and putting it in a sack. He testified that he looked around the store and noticed a third man, (referred to as 'C') whom he identified as the appellant, standing near the store's window, looking in and out of the store. There were only eight or nine other people in the store at the time. He stated that the appellant hurriedly left the store and that he was followed by 'A' and 'B'. The three men ran down a sidewalk to an adjacent mall where a white, 1960 Buick was parked. Rousseau followed the men from a distance of 12--14 feet. The three men met a fourth man, 'D', who was standing near the parked Buick. Rousseau stated that he overheard 'D' yell, 'Did you get it?' and one of the other man answered, 'Yes, we got it, let's go!' Although he did not see appellant get into the car, he did notice that there were four men in the car as it drove away. He identified 'D', the driver of the get-away car, as Tom Moody, one of appellant's co-defendants. He also identified 'A' as the accomplice witness Michael Freeze. A description of the get-away car was given to the police by Rousseau. ²

Officer Brookover testified that shortly after the robbery he arrested two men who were in an automobile which met the description of the reported get-away car. The two men were identified by the officer as co-defendants Moody and Taylor. No fruits of the crime were discovered in the car. Moody gave Officer Brookover the address of his apartment but cautioned that 'it's possible that there could be someone hurt if you went there.' With consent of Moody, Brookover and several other officers of the Houston Police Department proceeded to Moody's apartment where they found and arrested appellant and a woman by the name of Joann Sims.

A search of the apartment produced a .32 caliber pistol, a .22 caliber pistol, a blue golf hat, and a sack of money in which were found coins which were rolled in Texas National Bank of Commerce wrappers.

Freeze identified one of the two pistols as the one he used in the robbery, and although he could not make identification of the other pistol recovered in the search, he did testify that Murphy also had a pistol during the robbery. When shown the money recovered from Moody's apartment, Ziegler testified that some of the coins taken in the robbery were rolled in Texas National Bank of Commerce wrappers. Both Ziegler and Rousseau testified that State's Exhibit No. 3, a blue golf hat, looked like the one worn by one of the robbers.

The jury was charged on the law of principals and that Michael Freeze was an accomplice witness as a matter of law. The testimony of witness Rousseau sufficiently corroborates the accomplice's testimony. Article 38.14, Vernon's Ann.C.C.P.; Runkle v. State, Tex.Cr.App., 484 S.W.2d 912. Further, the testimony of Rousseau is sufficient to sustain appellant's conviction as a principal in the robbery notwithstanding the testimony of the accomplice witness. The evidence is clearly sufficient to support the verdict. Hill v. State, Tex.Cr.App., 466 S.W.2d 791; Jones v. State, Tex.Cr.App., 436 S.W.2d 151.

Appellant next contends that he was denied a jury determination on the issue of present insanity or competency to stand trial. His complaint arises out of the following circumstances.

After the state had rested its case in chief, and after appellant's co-defendants had rested, counsel for appellant approached the bench and announced:

'It's been brought to my attention within the last fifteen minutes or so, during the last recess of the court, that my client, Lyndall Lenear Ainsworth, is an escapee or has been committed to the Rusk Mental Institution at a prior time and has never had his sanity restored by a jury to my knowledge. I don't know, and there is an attorney in town that supposedly can verify this. This is all I know.'

Appellant then testified, out of the presence of the jury, that he was committed to Rusk State Hospital by the Trinity County Judge on July 16, 1966; that he received several shock treatments; and that he escaped from Rusk 'a couple of months' after his admittance. He further testified that he had been arrested 'forty something times for assault and kidnapping' and that on one occasion he had chopped off the hand of a person who had thrown a brick through his car window.

Asked whether appellant's present sanity was being questioned, counsel for appellant responded:

'Well, this has been a surprise to me, Your Honor, I think it is my duty to bring it up to the court. What legal ramifications there are, I don't know right now, other than the fact if he was declared insane back then, whether he's ever been declared sane again by a jury or whatever the procedures are, whether he automatically is declared sane by escaping, I don't know.'

The court then announced:

'I think this matter might demand that some further investigation be made into it and if you wish to do so, we will resume tomorrow morning at 9:30.'

And the prosecutor suggested:

'. . . If he's going to testify, I would prefer to have a doctor look at him. I'm not sure if he's capable of testifying.'

J. C. Thomason, an investigator for the District Attorney's office, testified that he talked to the custodian of the library and files at Rusk and was informed that appellant had been admitted to Rusk for a ninety-day, temporary commitment.

On December 2, 1970, the court reconvened at which time Dr. Benjamin Sher, a psychiatrist, testified that at the court's request he examined appe...