Ellison v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: WOODLEY
• Citation: Ellison v. State, 419 S.W.2d 849 (Tex. Crim. App. 1967)
• Decision Date: 04 October 1967
• Docket Number: No. 40072,40072
• Parties: Jesse ELLISON, Appellant, v. The STATE of Texas, Appellee.

Page 849

419 S.W.2d 849

Jesse ELLISON, Appellant, v. The STATE of Texas, Appellee.

No. 40072.

Court of Criminal Appeals of Texas.

Oct. 4, 1967.

Rehearing Denied Nov. 15, 1967.

Charles E. Reagan, court appointed, Jack Welch, court appointed on appeal, Marlin, for appellant.

Thomas Bartlett, County Atty., Marlin, Stanley Kacir, Dist. Atty., Belton, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is robbery with a deadly weapon; the punishment, death.

The assault was alleged to have been made upon Thula Hill and the indictment alleged the using and exhibiting of a deadly weapon, to-wit a knife, in robbing her of $340.00 in money.

Thula Hill, a 59 year old divorcee, testified: She was a clerk at a Liquor Store in a rural area of Falls County on February 18, 1966. Appellant came to the store and purchased a fifth of wine and left. He returned about 8 P.M. at which time she was in charge of the Liquor Store and was alone. As she was standing at the water fountain, appellant walked up behind her and grabbed her. He told her not to say a word--not to call anybody--not to scream or he would kill her. He had a knife at her back and said: 'Just one stab is all it will take to kill you.'

Appellant ordered her to go to the cash register, open it and give him the money or he would kill her. She complied and he put the money in a paper bag. Still with the knife at her back, and under threat to kill her, appellant required her to go with him in an old station wagon into Bell County. He then tied her hands and blindfolded her and drove to a dump ground about 5 miles from Temple where he took the blindfold off, untied her hands and under threat to kill her had two acts of sexual intercourse with her before highway patrolmen arrived and rescued her.

Six grounds of error are set forth in appellant's brief filed in the trial court.

The first two points relate to the admission of the evidence pertaining to the abduction or kidnapping following the robbery, and to the rape of Thula Hill at the dump ground in Bell County. The first point is that this evidence pertained to extraneous offenses and was improperly admitted. The second point is that the court erred in overruling appellant's motion to suppress such evidence.

The three offenses were committed by a continous assault and were so interwoven as to be part of the same transaction. The evidence sought to be excluded was admissible under the so called res gestae rule. Kerrigan v. State, 321 S.W.2d 884, and cases cited.

Appellant's point No. 3 is that the punishment is excessive and amounts to cruel and unusual punishment for the offense charged. Gonzales v. State, Tex.Cr.App., 386 S.W.2d 139; Mason v. State, Tex.Cr.App., 375 S.W.2d 916, and Blassingale v. State, Tex.Cr.App., 408 S.W.2d 115, are contrary to appellant's contention.

We do not agree with appellant's contention that these authorities should be overruled. We have no doubt as to the authority of this Court to reverse and set aside a conviction where contrary to the Constitution of the United States cruel and unusual punishment has been assessed. This Court does not, however, have authority to fix a different punishment than that which it finds 'cruel and unusual.'

The legislature has authorized death as the maximum punishment for the offense of which appellant was found guilty. In arriving at the proper punishment to be assessed the jury was authorized to consider all of the evidence relating to the transaction that was admitted at the trial.

We are aware of no authority for a holding that death is excessive punishment for robbery with a deadly weapon. The nearest appellant approaches the question is the dissenting opinion in Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119, which expresed the view that certiorari should be...