Bush v. State
Decision Date | 13 March 1974 |
Docket Number | No. 48245,48245 |
Citation | 506 S.W.2d 603 |
Parties | Willie Lee BUSH, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Richard F. Ferrary, Austin, for appellant.
Robert O. Smith, Dist. Atty., Charles Craig, Asst. Dist. Atty., Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
This is an appeal from an order revoking probation.
On August 10, 1972, appellant entered a plea of guilty before the court to the offense of burglary of a private residence at night. His punishment was assessed at five (5) years, but imposition of sentence was suspended and he was placed on probation subject to certain probationary conditions, among which is found: '(2) Commit no offense against the laws of this or any State or of the United States.'
On December 6, 1972, a motion to revoke probation was filed, but does not appear to have been acted upon. On March 9, 1973, another motion to revoke was filed alleging that the appellant had committed the offense of robbery by assault.
On May 31, 1973, the court conducted a hearing on such motion at the conclusion of which the court revoked probation.
Appellant contends the court abused its discretion in doing so because the evidence is insufficient to show that he was guilty as a principal to the offense of robbery by assault.
Boyd Armstrong testified that on February 26, 1973, he was robbed at a Stop and Go Store in Travis County by Calvin Wilson and Ben Earl Mitchell. He related they 'took money and other things' and tied him up in the back room of the store where he was employed.
Roger Napier, Austin city police officer, testified he took an extrajudicial confession from the appellant which reads in part as follows:
'My name is Willie Lee Bush, I am 22 years old and I live at 1608 East 10th St. Sgt. Napier has explained my rights to me and I know I dont have to make any statement but I have decided to make the following statement which is the truth to the best of my ability.
'Sometime around 2:00 Am Monday, morning 2--26--73, Ben Earl Mitchell, Calvin Lee Wilson and Earnest Lee Moss came by my house in a blue Buick Riveria belonging to Earnest Lee Moss.
When A actually commits the offense, but B is present, knowing the unlawful intent, and aids by acts or encourages by words, then B is a principal. Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046 (1920). B is also a principal when he advises or agrees to the commission of the offense, and is present when the same is committed whether he aids in the commission of the offense or not. Middleton v. State, supra.
In determining whether a party was acting as a principal, the trial court may look to events before, during and...
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