Beasley v. State, 41250

• Decision Date: 08 May 1968
• Docket Number: No. 41250,41250
• Citation: 428 S.W.2d 317
• Parties: Robert Earl BEASLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 317

428 S.W.2d 317

Robert Earl BEASLEY, Appellant, v. The STATE of Texas, Appellee.

No. 41250.

Court of Criminal Appeals of Texas.

May 8, 1968.

Donald D. Koons, Dallas, for appellant.

Henry Wade, Dist. Atty., Alvin Walvoord, Jr., John H. Stauffer, Malcolm Dade and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

The offense is robbery; the punishment, twenty-one years.

It was shown by the state's testimony that, on the date alleged, the injured party, who was a cab driver, took three women to an apartment in the city of Dallas. As he was leaving the apartment, he was assaulted and robbed of approximately $82 by a man. The robbery was committed around 5:30 p.m. At approximately 9 p.m. on the same day, appellant was arrested a block away from the scene of the robbery while engaged in a fight with one of the women who had been taken to the apartment. Following his arrest appellant was taken to jail, where he was positively identified by the injured party in a police lineup as the person who had robbed him.

In his first ground of error, appellant insists that the court erred in limiting his examination of the arresting officer in an effort to show the nature and extent of his injuries received in the fight with the woman.

The record reflects that the trial judge failed to see any relevancy to the proffered testimony and, upon sustaining the state's objection, stated to appellant's counsel:

'* * * I will let you lay a predicate and let you go into it, but I think you should show the relevancy between that (the injuries) and the allegations contained in the Indictment.'

The jury was excused and appellant offered no showing of relevancy. We perceive no error.

Appellant was permitted to show that he was injured in the fight with the woman. She did not testify as a witness in the case. The nature and extent of his injuries were not relevant to any issue in the case. The ground of error in overruled.

In his second ground of error, appellant insists that the trial court erred in permitting a witness to bolster the testimony of a state's witness with reference to appellant's indentification at the lineup.

The record reflects that the injured party, Milton Bryson, testified on direct examination that at the lineup he identified appellant as the robber, who he thought 'was second from the front.' Appellant was also identified at the lineup by the state's witness Jo Barton.

Appellant called as a witness Lt. Archer, who conducted the lineup, and elicited testimony from him to the effect that appellant was in position number four in the lineup and not position number two. On cross-examination of the officer by state's counsel, the following transpired:

'Q Uh-huh, the Defendant here, is he the one that was selected from the showup? A Yes, sir, he was.

'MR. KOONS: We'll object to that.

'THE COURT: Sustain it.

'MR. KOONS: Bolstering, Your Honor, and move for a mistrial.

'THE COURT: Sustain it; disregard it, Lady and Gentlemen. Consider it for no purpose. Overrule your Motion for a mistrial.'

If there was any error in the officer's testimony, such was cured by the court's action in sustaining the objection and instructing the jury not to consider it for any purpose. However, we agree with the state that the testimony was admissible in view of appellant's attempted impeachment of the injured party's testimony relative to his identification of appellant at the lineup. Such fact distinguishes the case from Lyons v. State, Tex.Cr.App., 388 S.W.2d 950, where testimony was admitted which...