Banks v. State

• Decision Date: 16 September 1971
• Docket Number: No. 44034,44034
• Citation: 471 S.W.2d 811
• Parties: Curtis Arthur BANKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 811

471 S.W.2d 811

Curtis Arthur BANKS, Appellant, v. The STATE of Texas, Appellee.

No. 44034.

Court of Criminal Appeals of Texas.

Sept. 16, 1971.

Rehearing Denied Nov. 2, 1971.

James P. Finstrom, Dallas, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., Edgar A. Mason, Robert T. Baskett and James S. Moss, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for robbery by assault with the punishment, enhanced under the provisions of Article 63, Vernons Ann.P.C., being assessed at life.

At the outset the appellant challenges the sufficiency of the evidence to sustain the conviction, particularly as to intent and to 'the required element of a taking of property.'

On February 17, 1970, Patricia Wadsworth left Rutherford College in the city of Dallas about 9 p.m. and proceeded to a nearby parking lot where she discovered her automobile was blocked by another motor vehicle. She called the police. By the time of their arrival the vehicle had been moved and they departed. As Mrs. Wadsworth started to get into her car, she was grabbed by her hair and pushed into the car. When she began to scream her assailant told her to 'shut up' or he would shoot her. When she did not immediately comply the assailant struck her on the back of the head with his hand. The man then took the keys from her hand and holding her hair forced her to tell him where the ignition was located. He started the car and as he was backing out Mrs. Wadsworth unlocked the car door and jumped out. As she ran she glanced back and observed the car still running and that the backup lights were on. She then saw her assailant run around the front of the car and down an alley. She fled to the office of a business college and the police were called. Based on the description given by the complaining witness, the police arrested the appellant approximately a half an hour later a few blocks away from the scene of the alleged offense.

Mrs. Wadsworth made a positive incourt identification of the appellant as her assailant based on her observations of him at the time of the offense. She related that at the time her automobile was taken she was in fear of her life or serious bodily harm.

Appellant acknowledges that for the purpose of proving the element of taking, robbery is but an aggravated form of theft and that it would follow that the rules which govern in theft cases would also have application in a robbery prosecution. He also concedes the automobile was in his possession when he assumed control over it and started the ignition. He argues that his possession was not a 'taking' since the complaining witness abandoned the property, rendering it impossible for him to take it from her possession.

Article 1412, V.A.C.P., provides:

'To constitute 'taking' it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession...