Dillard v. State, s. 52587

• Decision Date: 09 March 1977
• Docket Number: Nos. 52587,52588,s. 52587
• Citation: 550 S.W.2d 45
• Parties: Willie D. DILLARD, Appellant, v. The STATE of Texas, Appellee. Harold Eugene NUNLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 45

550 S.W.2d 45

Willie D. DILLARD, Appellant, v. The STATE of Texas, Appellee.

Harold Eugene NUNLEY, Appellant, v. The STATE of Texas, Appellee.

Nos. 52587, 52588.

Court of Criminal Appeals of Texas.

March 9, 1977 Opinion on Appellants' Motion for Rehearing April 20, 1977 Second Rehearing Denied May 18, 1977.

S. Price Smith, Jr., Wichita Falls, for Willie Dillard.

Bob Balch, Wichita Falls, for Harold Nunley.

James B. Ammons, Asst. Dist. Atty., Timothy Eyssen, Dist. Atty., Wichita Falls, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

These are appeals from convictions for the offense of aggravated robbery. The jury, having found that each appellant had a prior felony conviction, assessed punishment in each case at forty years. Both appellants present substantially the same contentions.

The sufficiency of the evidence to support the convictions is challenged. The indictment alleges that Dillard, Nunley and James Earl Shaw on March 4, 1975, "while in the course of committing theft of property, namely, United States currency, from Jack Hairston, with intent to obtain and maintain control of said property, James Earl Shaw, using and exhibiting a deadly weapon, to wit, a shotgun, knowingly and intentionally placed Jack Hairston in fear of imminent bodily injury and death."

Jack Hairston testifed that on March 4, 1975, he was employed as the night auditor at the Holiday Inn East in Wichita Falls. At approximately 3:40 a. m., a black male entered Hairston's office and exhibited a long barreled gun. Hairston described the man as being approximately six feet tall, clean shaven, slender, with a medium length "Afro" hairstyle and dressed in a blue jacket. He said he responded to the robber's demands for money by giving him the contents of the cash register. This totaled exactly $190.00 in currency. The robber asked him for the location of the safe. Hairston told him that a filing cabinet contained money. The robber threatened to shoot Hairston, took his wallet and made him lie on the floor. The robber then went to the filing cabinet and removed a small grey metal box which contained $75.00 in currency and coins and left. Immediately thereafter Hairston called the police, reported the robbery and gave a description of the robber.

Robert Arnold, Jr., a radio communications dispatcher for the Wichita Falls Police Department, testified that at approximately 3:43 a. m. he received Hairston's call concerning the robbery and immediately dispatched a bulletin to the officers on duty in that area. He gave a description of the robber and stated a long barreled weapon was used in the robbery.

Officer Alan Bragg testified that he was on patrol when he received Arnold's dispatch. At approximately 3:50 a. m., in the area of the motel, he saw a black over yellow Plymouth traveling at an excessive rate of speed, above the 35 m.p.h. limit. He pursued the vehicle and stopped it. He had intended to issue a traffic citation but decided not to because he was unable to obtain an accurate clocking of the vehicle's speed.

Bragg further testified that he decided to check the driver's identification. As he exited the patrol car the driver of the Plymouth emerged from his automobile. Bragg said he asked the driver to produce his operator's license. At this point the officer observed two other men in the automobile. He approached it and saw a shotgun on the rear floorboard. He stated that Officers Bartosh and Horton had arrived in the meantime. The two men remaining in the Plymouth complied with the other officers' request to get out.

Bragg identified Dillard as the driver of the automobile and Nunley as one of the passengers. The other passenger, Shaw, fit the description of the robber.

The officer stated that a search of the automobile yielded the weapon, ammunition and a large amount of currency which was "stuffed under the front seat." This money totaled exactly $190.00. Bragg said another officer searched Dillard and found approximately $75.00 in his pockets. The money found on Dillard included currency and coins.

Officers Charles Bartosh and Horton assisted Bragg in stopping the vehicle. When Bartosh saw the three men exit the vehicle, he saw a shotgun on the rear floorboard. He saw that Shaw fit the description of the robber and he decided to arrest and handcuff the three men.

Officer Glen Smith testified that after talking to Shaw he went to a highway intersection located about a mile east of the motel and found a metal grey cash box in a ditch.

James Earl Shaw, who was an accomplice witness, testified that Dillard and Nunley came by Linda Burnett's house at 2:00 a. m. on the morning of the robbery. Linda Burnett, Monica Brewster and Sherry Milam were with Shaw at the time. After a brief discussion about robbing the Holiday Inn, Dillard, Nunley and Shaw went to Nunley's house and got his yellow Plymouth automobile. Dillard told Shaw that he had previously been employed by the Holiday Inn East and that the money was contained in a filing cabinet and a safe. Shaw said he was told that he should go in and take the money while Nunley and Dillard remained in the car.

Shaw further testified that the shotgun found in Nunley's Plymouth was the same gun he exhibited during the robbery. He also identified the clip and a shell which were discovered in the automobile.

Shaw testified that he went into the motel office and robbed Hairston. As the trio of robbers left, Dillard placed the money from the cash register under the front seat. Then he put the money from the cash box in his pockets. Shaw said that the box was subsequently thrown out of the car at a Waurika highway intersection near the motel. Shortly thereafter the police stopped the Plymouth as the robbers were traveling toward town and placed them under arrest. He further testified that he told some officers he had robbed the motel's auditor and helped them recover the cash box.

Sherry Milam testified that she shared a house with Linda Burnett and Monica Brewster. She stated that Dillard and Nunley came by the house between 2:00 a. m. and 2:30 a. m. on the morning of the crime, picked up Shaw and left.

Officer Dan Best testified that he and Officer Smith arrived at the scene of the arrest and had a conversation with Shaw concerning the robbery. Then Shaw directed the officers to the 77 Ranch Road and Waurika Highway intersection where the empty cash box was discovered. Best also recovered Hairston's wallet from Shaw. It contained Hairston's driver's license and several credit cards.

The records of the Holiday Inn reflected that Dillard had previously been employed at the motel. No witnesses testified for the defense.

Article 38.14, V.A.C.C.P., requires corroborating evidence which tends to connect a defendant with the offense in order to support a conviction based upon accomplice testimony. Appellants argue the evidence corroborating the testimony of Shaw is insufficient.

The test of sufficiency of the corroborating testimony requires eliminating from consideration the evidence of the accomplice witness and then examination of the testimony of other witnesses to ascertain if there is inculpatory evidence which tends to connect the accused with the commission of the offense. The evidence is sufficient if there is other evidence of an incriminating nature. Otherwise, it is not sufficient. James v. State, 538 S.W.2d 414 (Tex.Cr.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975), and cases cited therein.

The corroboration need not directly link the accused to the crime nor be sufficient in itself to establish guilt. Eliminating from consideration the testimony of the accomplice James Earl Shaw, we are left with (1) the testimony of Sherry Milam that Dillard and Nunley came by her house between 2:00 a. m. and 2:30 a. m. on the morning of the offense and picked up the accomplice; (2) the testimony of Officers Bragg, Smith and Best that appellants were arrested with the accomplice less than fifteen minutes after the robbery at a short distance from the scene; (3) the testimony of Bragg and Smith that a long barreled shotgun fitting the description given by the motel auditor was found in Nunley's vehicle; (4) the testimony of Bragg that exactly $190.00 was found hidden underneath the front seat of the Plymouth, together with Hairston's testimony that exactly $190.00 was taken from the cash register; and (5) Bragg's testimony that approximately $75.00 was discovered in Dillard's pockets, together with Hairston's testimony that $75.00 was contained in the stolen cash box. We hold the evidence is sufficient to corroborate the accomplice's testimony.

Nunley, without an objection or ground of error, contends that there is a fatal variance between the enhancement paragraph of the indictment and the proof.

The indictment alleged robbery. The judgment and sentence were for robbery. He asserts that the time sheet in the prison packet shows that he was serving time for larceny. The judgment and sentence control, not the statement of a board of corrections employee. No variance is shown.

Next, appellants contend that their arrests were made without probable cause and the evidence obtained as the result of the arrests should have been suppressed.

As set out above, the robbery occurred at approximately 3:40 a. m. The police dispatcher received a report from Hairston about the crime at approximately 3:43 a. m. This report was immediately relayed to all officers on duty in the area. They received a description of Shaw and information that a long barreled weapon had been used and that an undetermined amount of money had been taken.

At approximately 3:50 a. m., Bragg observed a black over yellow Plymouth traveling in a westerly direction from the scene of the crime. Since the vehicle was traveling at an excessive rate of speed, for that area, the officer pursued the vehicle. As Bragg pursued...