Dickson v. State

• Decision Date: 07 February 1973
• Docket Number: No. 45364,45364
• Parties: Jesse DICKSON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 267

492 S.W.2d 267

Jesse DICKSON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 45364.

Court of Criminal Appeals of Texas.

Feb. 7, 1973.

Rehearing Denied April 11, 1973.

Stephen M. Orr, Austin (On appeal only), Laird Palmer, Austin (On appeal only), for appellant.

Robert O. Smith, Dist. Atty., Michael J. McCormick, Asst. Dist. Atty., Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for robbery by assault. Punishment was assessed by the jury at four-hundred years.

At the outset, appellant contends that the evidence is insufficient to support the conviction. Charles Henderson, attendant on duty at the 'Stop'N'Go' drivein grocery on East 19th Street, Austin, testified that he was at the cash register counting money on January 23, 1971, when he saw appellant and four other men 'come from around the building,' walk in front of the store and enter single file to the counter where he was standing. One of the men asked for a package of 'Kools' and as Henderson turned around to get the cigarettes, he was shot in the left shoulder. Upon attempting to turn back to the counter, Henderson was shot three more times after which he fell to the floor and 'played dead.' Henderson was unable to tell which of the men shot him, but stated from the way the men were positioned at the counter, it would have only been possible for three of the men (one of whom was appellant) to have fired the shots. While Henderson was on the floor, he could hear money being taken from the cash register. Nolan Cobb, a representative of 'Stop'N'Go stores testified that One Hundred and Thirty-One Dollars was taken.

Officer Hickey, of the Austin Police Department, having received a call regarding the robbery, observed three men walking on a nearby street, and upon making a U-turn in his vehicle, the three began to run and evaded him. Hickey later identified the men as L. C. Williams, Arthur McElwee (also known as Cosea Lee Battle) and L. C. Duhon.

Later in the morning, Hickey went to a residence on the same street (where he observed the three men) where another officer was talking with L. C. Williams. After receiving permission from the owner of the residence, the officers entered and found two pieces of paper clipped together lying on a dresser. The clipped together papers, introduced into evidence, contained initials L. C., J. D., C. L., H. C., and L. B. Names were written on said papers as follows: 'Jesse Dickson Jr III,' 'Larry C Duhon,' 'L. C. Williams Jr.,' 'L. C. Clark' and 'Cosea Lee Battle.' Also appearing on the clipped together papers was the following:

'RULE'S

'1 No unnecessary money spend

'2 Two stone's kill five duck

'3 All B...S... must be terma

'4 Friday/Saturday/Tuesday

'5 No flakeing out for no'

A pistol was found at the residence later determined to have been the pistol which fired one of the bullets removed from Henderson. One other bullet was removed from Henderson, but according to Fred Rymer, of the Firearms Section of the Department of Public Safety, it was too badly mutilated to be subject to analysis. After the search of the house, L. C. Williams, Jr., and Arthur McElwee were arrested. On January 27, 1971, appellant and Larry Charles Duhon were arrested at an apartment on Rosewood Avenue in Austin. At the trial, Henderson identified appellant, L. C. Williams, Jr., L. C. Clark, Jr., Arthur McElwee, Jr., and Larry Charles Duhon as the five persons in the store at the time in question and as the only people who could have committed the robbery. ¹

Appellant urges that since no witness observed him fire the gun or take any money, and no proof of his intent to commit the robbery was adduced, the evidence is insufficient to support the conviction.

While presence alone at the commission of the offense will not constitute one a principal, presence is a circumstance tending to prove that a person is a principal, and taken with other facts, may be sufficient to show that he was a participant. Harper v. State, Tex.Cr.App., 477 S.W.2d 31; Childress v. State, Tex.Cr.App., 465 S.W.2d 947; Johenne v. State, Tex.Cr.App., 417 S.W.2d 64.

Henderson saw appellant approach the store with the other four men, saw them enter together, and as soon as Henderson heard the robbers leave, he observed that appellant, along with the other four men, had left the store. Appellant was arrested at an apartment with Larry Charles Duhon, identified by Henderson as one of the men who entered the store with appellant. In addition to the gun which fired one of the bullets, Henderson's gun which was taken from the store in the robbery and a bag containing One Hundred and Ten Dollars and Seventy Cents were found at the house where L. C. Williams and McElwee were arrested. Also found at this address were the papers containing appellant's name, initials and the names and initials of other persons identified as having taken part in the robbery. We find the evidence sufficient to support the conviction.

Appellant's next contention is that the trial court erred in refusing to instruct the jury on circumstantial evidence. That appellant was at the scene of the crime is not disputed. Appellant urges that, where no assault is made by the defendant nor is any money taken by him, it must be shown by sufficient testimony that he was aware of the intent of the actual robbery. The jury was charged on the law of principals, specifically that 'mere presence alone will not constitute one a principal,' and that one is a principal when he is 'present and, knowing the unlawful intent aid(s) by acts, or encourage(s) by words or gestures . . . advise(s) or agree(s) to the commission of an offense . . ..' In light of this charge, the jury necessarily reached the issue of appellant's intent and decided it against him.

In urging that error lay in the court's refusal to give a charge on circumstantial evidence, appellant cites Ellsworth v. State, 92 Tex.Cr.R. 334, 244 S.W. 147, in which this Court held the issue of whether the accused was a principal in a robbery necessitated a charge on circumstantial evidence. The accused had testified that he was not involved in the robbery, although he admitted he was present when the offense occurred. In Ellsworth, the jury only had direct evidence of the accused's presence at the crime. The court, in Ellsworth, refused to charge either on circumstantial evidence, principals, or even that the mere presence of the accused at the scene of the crime was not enough to find him guilty. In the instant case, there was direct evidence of appellant's association with the robbers and that his presence at the scene of the crime coincided exactly with that of the robbers. The jury was instructed on principals, and by its verdict, the jury necessarily determined the only issue remaining, that of appellant's intent to participate in the crime. See Russell v. State, Tex.Cr.App., 396 S.W.2d 117.

In Hill v. State, Tex.Cr.App., 466 S.W.2d 791, a robbery case where a codefendant testified that accused was present but knew nothing of the crime, complaint was made of the trial court's failure to charge on the law of circumstantial evidence. This Court said, 'A charge on circumstantial evidence need not be given when the state's evidence is direct, nor if the facts proven are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony.'

We reject appellant's contention that the court erred in failing to instruct the jury on the law of circumstantial evidence.

Appellant's third contention is that he was harmed by the jury's assessment of punishment in the penalty stage of this trial. He urges that Article 37.07, Sec. 2(b), Vernon's Ann.C.C.P., is mandatory in providing that after a finding of guilty, the judge must assess punishment unless one of three situations exist: 1. The case is a capital case, and the State has made it known prior to trial that it will seek the death penalty. 2. The defendant has sought probation by filing a sworn motion prior to trial. 3. The defendant has elected jury assessment in writing at the time his plea is entered. In addition, Article 37.07, Sec. 2(b), V.A.C.C.P., further provides, 'The defendant may, with the consent of the attorney for the state, change his election.' In the instant case, while none of the exceptions existed to the judge assessing punishment under Article 37.07, Sec. 2(b), V.A.C.C.P., appellant voiced no objection in the trial court to the jury assessing punishment.

Is there anything inherently detrimental in the jury assessing punishment which appellant could not waive by his failure to object to such procedure? We think not.

This Court has said that a defendant can waive statutory rights with regard to assessment of punishment. After the effective date of the 1965 version of Article 37.07, Sec. 2, V.A.C.C.P., and prior to the 1967 amendment (eff. Aug. 28, 1967) of said Article, this Court, at a time when separate trials were not authorized on issues of guilt and punishment in capital cases, said: 'Though such procedure is not authorized by Art. 37.07, C.C.P., a defendant pleading not guilty in a capital case where the state is seeking the death penalty is denied no constitutional or statutory right when, without objection or at his request, separate trials are had before the same jury on the issues of guilt or innocence and the punishment to be assessed.' Williams v. State, Tex.Cr.App., 415 S.W.2d 917. See also Jones v. State, Tex.Cr.App., 416 S.W.2d 412. In Breeden v. State, Tex.Cr.App., 438 S.W.2d 105, contrary to the requirements of Article 37.07, the trial court conducted a one stage trial at the defendant's request. In Breeden, this Court cited Williams v. State, supra, and said: 'Although the submission in this case is opposite to that in Williams, it appears that it is applicable here in that there was no objection but a request...