Bowden v. State

• Decision Date: 03 March 1982
• Docket Number: No. 60551,60551
• Citation: 628 S.W.2d 782
• Parties: Bob Lee BOWDEN aka Joe Lee Bowden, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 782

628 S.W.2d 782

Bob Lee BOWDEN aka Joe Lee Bowden, Appellant, v. The STATE of Texas, Appellee.

No. 60551.

Court of Criminal Appeals of Texas, En Banc.

March 3, 1982.

John M. O'Connell, San Antonio, for appellant.

Bill M. White, Dist. Atty. and Donald A. Clowe, Wayne Hampton and Anton Paul Hajek, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S MOTION FOR REHEARING

ONION, Presiding Judge.

Our opinion on original submission is withdrawn. The following is substituted in lieu thereof.

This is an appeal from a conviction for aggravated robbery, where the punishment was assessed by the jury at twenty (20) years' confinement in the Department of Corrections.

On appeal appellant contends the court erred in proceeding to trial without amending the indictment to reflect his correct name despite the timely suggestion of his correct name. He further urges the evidence is insufficient to sustain the conviction, that the court erred in failing to grant a mistrial when the State sought to improperly impeach him, and that the court also erred in failing to grant a mistrial when the prosecutor persisted in misquoting the record during jury argument.

A brief recitation of the facts is necessary to the proper disposition of the grounds of error.

On January 24, 1978, James Agnst was the sole employee at a Stop and Go convenience store at 1011 Austin Highway in Bexar County. About 11:45 p. m. appellant and his companion entered the store. Appellant purchased a package of gum while his companion flanked Agnst at the cash register. Following the purchase, the companion pulled a handgun and told Agnst, "Put the money in a bag." The gun was pointed at Agnst's head. The store was well lighted and Agnst had a good opportunity to see the faces of both robbers at a close distance. Agnst filled a brown paper bag with United States currency. Appellant then took all the change from the register. Agnst was ordered to open a locked display case and three watches were taken. Appellant and his companion left telling Agnst to be "cool." Agnst locked the door and called the police. He described the men to the police. He stated there was an older man and a younger man. At trial he positively identified the appellant as the older of the two robbers.

Appellant testified and denied the robbery and stated that on the night in question he was at Shirley's house where he lived.

Appellant's challenge to the sufficiency of the evidence is based on argument that Agnst is the only one who identified him as one of the robbers, and that there were some inconsistencies between Agnst's trial testimony and the description he gave the police of the robbers. San Antonio police officer Tom A. Bearden, who helped investigate the robbery, testified his report showed Agnst had described the older man as about 35 years of age, about 5' 9 tall with a medium build. Agnst testified at trial the older man's height was 5' 8 , 5' 7 or 5' 6 . Agnst identified a photograph of the appellant as the one he selected from a photographic display spread which was shown to him by the police. He related nothing was written on the back of the photograph at the time of the display, but acknowledged that "5' 2 " had been written thereon by somebody since that time. Appellant also calls attention to the pen packet of a prior conviction introduced by the State at the guilt stage of the trial which shows the Department of Corrections recorded appellant's height at 5' 1 . Bearden's report also shows Agnst stated the older man had on a light overcoat. At trial he testified the older man had on a "longer jacket or light overcoat or something, you know." He was unable to identify the jacket appellant was wearing in the courtroom as the jacket worn by the older man. Bearden's report reflects Agnst related both men wore blue jeans. At trial Agnst testified that he only told police that the younger man had on blue jeans; that he recalled the older man had a jacket or coat on and was well dressed.

The appellant argues that these inconsistencies as to height and clothing render the evidence insufficient to support the conviction. We do not agree. The inconsistencies or conflicts between Bearden's report and Agnst's trial testimony were all before the jury, who were the judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Articles 36.13 and 38.04, V.A.C.C.P. The jury may believe some witnesses and refuse to believe others, and it may accept portions of the testimony of a witness and reject other portions. Lafoon v. State, 543 S.W.2d 617 (Tex.Cr.App.1976); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). See also Johnson v. State, 571 S.W.2d 170 (Tex.Cr.App.1978); Nixon v. State, 572 S.W.2d 699 (Tex.Cr.App.1978).

Reconciliation of conflicts and contradictions in the evidence is within the province of the jury, and such conflicts will not call for reversal if there is enough credible testimony to support the conviction. Article 38.04, supra.

In Franks v. State, 462 S.W.2d 287 (Tex.Cr.App.1971), it was held not to be error to refuse to instruct a verdict of not guilty notwithstanding that principal witnesses for the State contradicted each other in the description of the men who robbed them. And in Flores v. State, 372 S.W.2d 687 (Tex.Cr.App.1963), it was held that resolution of conflicts between testimony of a State's witness and her prior testimony was for the jury.

Viewing the evidence in the light most favorable to the jury's verdict, as we are required to do, we conclude the evidence is sufficient to show the guilt of the appellant and to support the verdict.

Appellant's challenge to the sufficiency of the evidence is overruled.

In three grounds of error, appellant contends the trial court erred in proceeding to trial without amending the indictment to reflect his correct name despite his timely suggestion of his correct and true name.

The indictment returned on March 15, 1978 charged "Bob Lee Bowden" with the offense of aggravated robbery. The appellant claims his true name is "Joe Lee Bowden." On March 22, 1978, appellant filed two pro se motions to suppress identification testimony. One he signed "Joe Lee Bowden" and the other he signed both "Joe Lee Bowden" and "Bob Lee Bowden." On March 24, 1978, the record reflects an arraignment. On the same day he signed a waiver of the reading of indictment, apparently in connection with the arraignment, with the name "Bob Lee Bowden." The record does not reflect that at arraignment he suggested to the court his correct name. On April 17, 1978, he filed two additional pro se motions to suppress identification testimony and a pro se exception to the indictment for failure to set forth his correct name. He signed both names to these instruments. On May 30, 1978, the day of the trial, he filed a motion for a speedy trial signing both names to said motion.

Prior to trial appellant called the court's attention to the fact that his true name was "Joe Lee Bowden"; that he had never been known as "Bob Lee Bowden." The record reflects:

"THE COURT: Your name is what?

"THE DEFENDANT: My name is Joe Lee Bowden.

"THE COURT: Okay. Get me a jury of 36."

It appears that the court struck the name "Bob" in the style of the case on the docket sheet and inserted in handwriting the name "Joe." The indictment, however, was not amended. Without objection, the indictment was subsequently read to the jury as it was originally returned, and the appellant pleaded "not guilty."

During the trial Detective Ross, one of the investigating officers, testified he knew the appellant as "Bob Lee Bowden." Wayne Hampton, assistant district attorney, called by the appellant, testified on direct examination "Bob Lee Bowden" and "Joe Lee Bowden" were aliases of the appellant and that if you punched either name on the computer terminal you would get the appellant's criminal history.

The appellant testified that his legal name was "Joe Lee Bowden," and he had never used the name "Bob." His counsel elicited from him that he had suggested his correct name to the court.

Charges at both phases of the bifurcated trial used the name "Bob Lee Bowden aka Joe Lee Bowden." There were no objections to the court's charges. The verdicts at both phases of trial used the same name as in the charge, and the court in pronouncing judgment and sentence used the name of the appellant as set forth in the charge. The formal judgment and sentence reflect "The State of Texas v. Bob Lee Bowden AKA Joe Lee Bowden-True Name."

Article 21.02, V.A.C.C.P., provides in part:

"An indictment shall be deemed sufficient if it has the following requisites:

"(1) * * *

"(4) It must contain the name of the accused or state that his name is unknown and give a reasonably accurate description of him."

Article 21.07, V.A.C.C.P., provides:

"In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names, it shall be sufficient to state either name. When the name of the person is unknown to the grand jury, that fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment." (Emphasis supplied.)

The following statutes are found in Chapter 26 of the Code of Criminal Procedure entitled "Arraignment."

Article 26.01, V.A.C.C.P., 1965 (491) (555) (544) provides:

"In all felony cases, after indictment, and all misdemeanor cases punishable by imprisonment, there shall be an arraignment."

Article 26.02, V.A.C.C.P., 1965, provides:

"An arraignment takes place for the purpose of fixing his identity and hearing his plea. (Emphasis supplied.)

Article 26.07, V.A.C.C.P., 1965 (495) (559) (548) provides:...