Byrd v. State, 43045

• Decision Date: 22 July 1970
• Docket Number: No. 43045,43045
• Citation: 456 S.W.2d 931
• Parties: Eddie BYRD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 931

456 S.W.2d 931

Eddie BYRD, Appellant, v. The STATE of Texas, Appellee.

No. 43045.

Court of Criminal Appeals of Texas.

July 22, 1970.

Grady O. Trimble, Jr., Kountze, for appellant.

R. S. (Stanley) Coe, Dist. Atty., and Dwayne V. Overstreet, County Atty., Kountze, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is robbery by firearms; ¹ the punishment, assessed by the jury, 101 years.

The sufficiency of the evidence to sustain the conviction is not challenged. Suffice it to say that the record reflects the complaining witness Garrett stopped on the highway on December 24, 1966, to assist the appellant who apparently was having mechanical difficulties with his automobile. He was shot four times by the appellant, $200 was taken from his person and he was left for dead on the side of the road.

First, appellant claims the court erred in overruling his motion to quash the indictment because the same did not sufficiently describe the property alleged to have been taken. The indictment alleged that appellant took 'money, the same being the property of the said James Henry Garrett * * *.' Reliance is had upon Wilson v. State, 171 Tex.Cr.R. 391, 356 S.W.2d 928. There, as in Mankin v. State, Tex.Cr.App., 451 S.W.2d 236, the property alleged to have been taken was merely described as 'corporeal personal property' and in each cash the description was held insufficient.

In the case at bar the property is described as 'money' which is an allegation that will be taken to mean money of the United States of America unless the contrary appears. 5 Branch's Ann.P.C., 2d ed., Sec. 2576, p. 17. While a robbery indictment must describe the property taken, it may normally be described in general terms if the description is sufficient to inform the defendant of the property in question 'and to render available in the event of a second prosecution, a plea of once in jeopardy.' 50 Tex.Jur.2d, Robbery, Sec. 26, pp. 181, 182.

In a case such as the one at bar, it is immaterial how much money was taken. In Howell v. State, 154 Tex.Cr.R. 8, 224 S.W.2d 228, this Court said 'the taking of any sum of money by robbery is an offense.' The penalty affixed by the Legislature is the same for a penny, a nickel or $200 or more. See Article 1408, V.A.P.C. There is no variance if the proof shows more or less than the specific amount of money alleged, if such amount has been alleged. 'It is sufficient if the proof shows that any amount of money was taken where the allegation is general, and there is not a variance where the proof shows more or less than the specific amount of money alleged. Robinson v. State, 62 Crim. 645, 138 S.W. 704; Fannin v. State, 51 Crim. 41, 100 S.W. 916, 123 Am.St.Rep. 874, 10 L.R.A.,N.S., 744; Jones v. State, 64 Crim. 510, 143 S.W. 621; Bracher v. State, 72 Crim. 198, 161 S.W. 124; Bybee v. State, 122 Crim. 202, 54 S.W.2d 142; Howell v. State, 154 Crim. 8, 224 S.W.2d 228.' 5 Branch's Ann.P.C., 2d ed., Sec. 2594, pp. 27, 28.

And in Roberts v. State, 172 Tex.Cr.R. 500, 360 S.W.2d 883, cert. den. 371 U.S. 846, 83 S.Ct. 83, 9 L.Ed.2d 83, a robbery indictment alleging the property to be 'U.S. Currency' was held sufficient and not fatally defective for failure to further describe the property.

Still further, Rodgers v. State, Tex.Cr.App., 448 S.W.2d 465, appears to have been decided directly contrary to appellant's contention. See also 33 Texas Digest, Robbery, k17(3).

We believe the indictment sufficiently described the property taken so as to apprise the appellant of the offense with which he was charged so as to enable him to prepare a defense and to render available, in event of a second prosecution, a plea of former conviction.

Next, appellant claims the court erred in admitting into evidence, over objection, the discovery of a pistol in appellant's automobile as a result of a warrantless search, which was not incident to his arrest, the search having occurred approximately three days after such arrest.

The record reflects that on December 27, 1966, a Baumont city police officer advised the appellant of his constitutional rights, informed him he did not have to...