Ashford v. State, 46961

• Decision Date: 05 December 1973
• Docket Number: No. 46961,46961
• Citation: 502 S.W.2d 27
• Parties: Clyde Weldon ASHFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 27

502 S.W.2d 27

Clyde Weldon ASHFORD, Appellant, v. The STATE of Texas, Appellee.

No. 46961.

Court of Criminal Appeals of Texas.

Dec. 5, 1973.

Michael L. Morrow, Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for robbery by assault; the punishment, thirty years' imprisonment.

The appellant insists that the proof fails to show robbery by assault but rather shows theft from the person. We do not agree. Gladys Bowman was walking along a city street near noon when she was struck from behind and knocked to the pavement by a person she identified at the trial as the appellant. After knocking her down the appellant jerked her purse which she was carrying over her arm until the handle broke. He then fled with the purse. A book of personalized checks belonging to Mrs. Bowman, which had been in her purse when it was taken, was found under the automobile seat where the appellant was sitting when he was arrested approximately one hour after the robbery.

We find the assault upon Mrs. Bowman and the force used to obtain the purse which she said caused her to be in fear for her life were sufficient to sustain a conviction for robbery by assault. See Article 1438, § 2, Vernon's Ann.P.C.; Byrd v. State, 490 S.W.2d 575 (Tex.Cr.App.1973); and Jemmerson v. State, 482 S.W.2d 201 (Tex.Cr.App.1972).

In Byrd v. State, supra, a conviction for theft from the person was reversed where a lady's purse was taken from her under circumstances such as those in this case and it was there indicated robbery by assault would have been the proper charge under such facts.

The indictment is challenged for the first time on appeal. The appellant cites and quotes Articles 21.04 and 21.09, Vernon's Ann.C.C.P., asserting that the description in the indictment of the property taken as 'one purse' is not sufficient because it is not certain enough to enable him to plead the judgment in bar of any other prosecution for the same offense.

It is well established that such a description of the property taken alleged in an indictment for robbery is sufficient. Smith v. State, 131 Tex.Cr.R. 322, 98 S.W.2d 806 (Tex.Cr.App.1936) ('pistol' held sufficient); Rodgers v. State, 448 S.W.2d 465 (Tex.Cr.App.1969); Ellingsworth v. State, 487 S.W.2d 108 (Tex.Cr.App.1972) and Byrd v. State, 456 S.W.2d 931 (Tex.Cr.App.1970) (all held allegation of 'money' to be sufficient).

Two grounds of error presented are:

'The trial court committed reversible error by admitting into evidence testimony of appellant's identification that was tainted by a photographic pretrial process that was impermissibly suggestive and a denial of due process.'

and

'The trial court committed reversible error by admitting into evidence testimony of appellant's identification that had been tainted by a pretrial process where appellant was denied right to counsel at a critical stage after indictment.'

The appellant states in his brief that Detective Lipe exhibited to Mrs. Bowman on the morning of the trial a single colored polaroid photograph of the appellant. This is the procedure of which he complains. Even if we assume that the record shows only one photograph was exhibited to Mrs. Bowman there is a failure to show error because objections to the identification testimony on the grounds now urged on appeal were not made at the time of trial. ¹

Since appellant failed to make timely objections to the identification testimony, no error is presented. See Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969); Montoya v. State, 464 S.W.2d 853 (Tex.Cr.App.1971); Taylor v. State, 474 S.W.2d 207 (Tex.Cr.App.1971); and Phillips v. State, 488 S.W.2d 97 (Tex.Cr.App.1972).

The appellant's contention that a photograph of the appellant was erroneously admitted in evidence because it was 'harmful' and was a 'means of bolstering the witnesses' testimony concerning the tainted pretrial identification process' is without merit because no such objection was made at the time of trial. Appellant objected at that time that a proper predicate had not been laid, and to a written matter on the back of the photo which was obliterated before it was admitted.

The appellant complains that he was not permitted to examine Detective Lipe during the identification hearing held out of the presence of the jury. It appears the Court should have permitted him to examine...