Byrd v. State
| Decision Date | 21 February 1973 |
| Docket Number | No. 45738,45738 |
| Parties | Hollis George BYRD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Monroe K. Walter, Houston, for appellant.
Carol Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, for the State.
This is an appeal from a conviction for the offense of theft from the person. The jury assessed punishment at seven years.
The record shows that on the evening of November 4, 1970, Mrs. R. H. Yarborough and her husband were returning to their car which was parked on Fannin Street in downtown Houston when appellant attempted to snatch Mrs. Yarborough's purse. Mrs. Yarborough testified that the appellant ran by and grabbed the purse as she started to step into the car. Her purse was on her arm and she held on as he pulled on it. In the brief struggle that ensued, appellant pulled her halfway up the fender of the car before one of the straps of the pursue broke. As he pulled her away from the car she caught hold of her purse with the other hand. Appellant was eventually successful in getting the purse.
Appellant contends that the evidence does not support the offense as charged in the indictment. He argues that the alleged theft occurred with the full knowledge of the complaining witness and that she was not only allowed time to do so, but did make a determined effort to resist. We agree.
The pertinent part of the theft from the person statute, Article 1438, Vernon's Ann.P.C., Section 2, provides:
The testimony of the complaining witness shows that her purse was taken only after a struggle had occurred. As this Court wrote in Mayzone v. State, 88 Tex.Cr.R. 98, 225 S.W. 55, in discussing this very same contention, 'If there was resistance on the part of McReynolds (the complaining witness) when the money was taken in the struggler or scuffle, then appellant would be entitled to an acquittal, because the allegation in the indictment that the money was taken so suddenly as not to allow time for resistance was not sustained.'
The evidence in this case shows that resistance was offered. Therefore, we hold that the evidence does not support the offense as charged in the indictment. A different question would be presented had the indictment charged robbery by...
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Ex parte Evans
...State, 145 Tex.Cr.R. 134, 166 S.W.2d 706 (1942); Alaniz v. State, 147 Tex.Cr.R. 1, 177 S.W.2d 965 (1944). Compare also Byrd v. State, 490 S.W.2d 575 (Tex.Cr.App.1973). In the case at bar, the evidence clearly shows that there was antecedent violence committed on the person of the victim, th......
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Ashford v. State, 46961
...for her life were sufficient to sustain a conviction for robbery by assault. See Article 1438, § 2, Vernon's Ann.P.C.; Byrd v. State, 490 S.W.2d 575 (Tex.Cr.App.1973); and Jemmerson v. State, 482 S.W.2d 201 In Byrd v. State, supra, a conviction for theft from the person was reversed where a......
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Johnson v. State, 46174
...of robbery from that of theft from the person. Jemmerson v. State, supra; Hicks v. State, Tex.Cr.App., 482 S.W.2d 186. Cf. Byrd v. State, Tex.Cr.App., 490 S.W.2d 575. The judgment is ...