Dixon v. State, 48239

• Citation: 506 S.W.2d 585
• Decision Date: 13 March 1974
• Docket Number: No. 48239,48239
• Parties: Nathaniel DIXON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 585

506 S.W.2d 585

Nathaniel DIXON, Appellant, v. The STATE of Texas, Appellee.

No. 48239.

Court of Criminal Appeals of Texas.

March 13, 1974.

John P. Mustachio, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Larry Urquart, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

QUENTIN KEITH, Commissioner.

The jury found appellant guilty of robbery by assault and fixed his punishment at six years.

Having studied the record carefully and finding it to be a true resume thereof, we now adopt the statement of the underlying facts as contained in the State's brief prepared by Hon. Phyllis Bell, omitting the record references and quotation marks.

The complainant, Carry Pickering, operated a 7--Eleven Store located in Houston, Harris County, Texas, and identified appellant as one of two men who entered her store on the evening of January 15, 1973, at which time she was robbed, at gunpoint, of cash, cartons of cigarettes and several six packs of beer. She testified that appellant had come into her store two or three times in the week prior to the robbery and asked if he could wait there for a ride to his job. He stood directly in front of the cash register. On the evening of the robbery, a man she subsequently identified as Henry DeWatt came into the store and ordered five cartons of cigarettes and got some beer from the cooler. Mrs. Pickering told him the cigarettes were $5.50 a carton and DeWatt, responded, '(T)hat's all right, I have got right here what will pay for it.' At that point, DeWatt pulled a gun and ordered her to put the money in a sack. She did so because she was placed in fear of her life or serious bodily injury.

DeWatt then took the sack of merchandise containing the cigarettes, beer and money and indicated an intention to take a girl in the store as hostage but left the store without further action when Mrs. Pickering said that there was a detective in the back of the store with a gun on him. After DeWatt left the store with the merchandise and the money, the complainant ran outside and saw the robber get in a black Cadillac and drive off.

Mrs. Pickering further testified that while DeWatt was in the store and before he pulled the gun appellant came in and bought some cigarettes and, at that point, the complainant asked him what he was doing in the store at that time of the night and appellant replied that he had two jobs, one in the daytime and one at nighttime and he then left the store.

Freddie Quintera, a 13-year old boy, testified that he was in a phone booth outside the 7--Eleven Store at the time of the robbery. He testified that he had seen a black Cadillac parked at the side of the 7--Eleven Store with three people in it. He testified that Henry DeWatt got out of the car first and went into the 7--Eleven Store and that appellant entered the store later. Freddie then entered the store himself and was present when DeWatt pulled a gun and heard him say, '(T)his is going to pay for it.' Freddie followed the gunman out of the store and saw the appellant and Henry DeWatt get into the black Cadillac waiting outside. He said the two doors on the passenger side of the Cadillac had been left open, and the motor was running. Freddie testified that when he first observed the black Cadillac he made note of the license number. Because he was in the phone booth at the time he did not have anything to write on and was able to remember only part of the license number and it was RRK. He gave the partial license number to Mrs. Pickering who wrote it on a piece of paper and in turn gave it to the police.

Cindy Lopez, an employee of the 7--Eleven store, was also present at the time of the robbery and identified appellant and Henry DeWatt as being in the store at the time of the robbery. She was the employee that DeWatt attempted to take as a hostage. She identified a gun marked as State's Exhibit No. 4 as similar to the one used in the robbery by DeWatt.

Officer F. G. Black, with the radio patrol division of the Houston Police Department, received a call from the police dispatcher with respect to the robbery and arrived at the 7--Eleven Grocery Store between 7:30 and 8:00 p.m. There he received a description of the suspects and their car and the partial license number 'RRK' from the complainant. He immediately cruised the area and spotted the described car with three occupants. Appellant was identified as the person sitting in the rear seat on the passenger side of the black Cadillac stopped by the police, and DeWatt was the one sitting in the front seat on the passenger side. Cash in the amount of $317 was found on DeWatt.

Officer H. B. Davis and his partner, in accordance with a police dispatch, went to the assistance of Officer Black and arrived at the scene of arrest as the officer was bringing appellant out of the back seat of the passenger car, having the other two suspects in custody. Davis searched the vehicle and found a pistol and a sack containing several cartons of cigarettes. The...