Berry v. State, 44468
| Decision Date | 08 March 1972 |
| Docket Number | No. 44468,44468 |
| Citation | 477 S.W.2d 284 |
| Parties | Dan BERRY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
A. J. Pope, Corpus Christi, for appellant.
Wm. B. Mobley, Dist. Atty., Thomas D. McDowell, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is taken from a conviction for the offense of assault with intent to rob; the punishment, enhanced under Article 62, Vernon's Ann.P.C., was assessed by a jury at ten years.
The sufficiency of the evidence to support the conviction is not challenged. Appellant's contentions are that the trial court erred in admitting evidence of extraneous offenses committed by him and that the court abused its discretion by allowing a witness to testify in violation of Article 36.03, Vernon's Ann.C.C.P. 1
The record reflects that at approximately ten minutes until one on the afternoon of April 17, 1970, appellant drove one Frank Hawkins to a liquor store located on Naval Air Station Drive in Corpus Christi. Hawkins, who was a juvenile, went into the store and pointed a pistol at Martha May, an employee there. When she began screaming, he ran from the store and entered appellant's car.
John Cox, a deputy sheriff in Nueces County, testified that he observed the two driving away from the liquor store at a high rate of speed. At that time, Deputy Cox was unaware of the attempted robbery.
The testimony concerning extraneous offenses, which appellant now contends was erroneously admitted, came into the record at two different points in the trial.
The first instance occurred when Deputy Sheriff Cox was asked by the prosecutor why he recognized appellant as the driver of the car. He replied:
'A. That is correct sir, this young fellow, we had been observing him, we were under the impression he had been involved in several things.
We first note that no specific offense was mentioned, only that the witness suspected that appellant 'had been involved in several other things.' Second, the record reflects that the witness was allowed, without objection, to testify to substantially the same facts when appellant cross-examined him concerning his ability to recognize the appellant as the driver of the vehicle. Third, appellant, while testifying in his own behalf, admitted the prior conviction alleged for enhancement and admitted that he had previously been convicted of felony theft, burglary of a private residence at night, and burglary.
Under such circumstances, we find no error. The trial court correctly permitted the witness to testify concerning collateral matters which explained his ability to identify appellant. See this writer's concurring opinion in Williams v. State, Tex.Cr.App., (No. 44,437, Feb. 23, 1972). See also Valdez v. State, Tex.Cr.App., 472 S.W.2d 754; Chambers v. State, Tex.Cr.App., 462 S.W.2d 313; 61 Tex.Jur.2d, Witnesses, Sec. 133.
Appellant also complains that '(t)he Trial Court erred in admitting the confession-statement and testimony of an accomplice witness over the objection of defense counsel, concerning an alleged prior extraneous offense of the accused for the purported purpose of showing system, design, scheme, and intention, without first showing that a final conviction had been obtained in the alleged prior extraneous offense; second, legal evidence to corroborate the accomplice's testimony, which was in and of itself supposed to show or demonstrate a system, design, or scheme; third, legal evidence to corroborate the accomplice's testimony of intent without the further legal corroboration of the accused's identity in the prior extraneous offense . . .' 2
The accomplice, Hawkins, appeared as a witness for the state and was extensively cross-examined as to whether appellant had knowledge of the intent of the accomplice to commit a robbery at the liquor store. 3 On the third re-direct examination of Hawkins, he was questioned about an extraneous offense allegedly committed by him and appellant. Hawkins admitted that he and appellant had committed a robbery at a service station four days prior to their attempt to commit robbery at the liquor store. Their method of operation in the service station robbery was the same as the one they had used at the liquor store. After having testified concerning the extraneous offense, Hawkins identified the confession he had made with regard to that offense and stated that the confession was true and correct. The confession contained the same information stated by Hawkins in his testimony. The confession and the testimony were admitted into evidence over appellant's objection. 4
In 23 Tex.Jur.2d, Evidence, Sec. 194, it is written:
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