Gill v. State, 44888

• Citation: 479 S.W.2d 289
• Decision Date: 19 April 1972
• Docket Number: No. 44888,44888
• Parties: Richard Donald GILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 289

479 S.W.2d 289

Richard Donald GILL, Appellant, v. The STATE of Texas, Appellee.

No. 44888.

Court of Criminal Appeals of Texas.

April 19, 1972.

Walter L. Knapp, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Kerry Knorpp, F. G. Shackelford, Asst. Dist. Attys., Amarillo, and Jim D. Vollers, 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 twenty-five years.

The record reflects that Mrs. Billie Mae Daniel identified appellant as the person who, on April 16, 1970, entered the Toot 'n Totum Store No. 21, in Amarillo, where she was employed, exhibited a pistol and said, 'This is a stick-up.' Witness Daniel further testified, as a result of appellant's actions, she was placed in fear of life and bodily injury and gave appellant $82.70 out of the store's cash drawer.

At the outset, appellant contends that the court erred in 'permitting a line of questioning regarding the injured party's trip to the Amarillo Police Station to look for the picture of the person who robbed her.'

There is no complaint that the in-court identification of appellant, by Mrs. Daniel, was prompted or suggested by any picture seen at the station. On the contrary, appellant urges the only reason this line of questioning was pursued by the State was to impress upon the jurors that appellant had a police record. Appellant relies on Priest v. State, 162 Tex.Cr.R. 66, 282 S.W.2d 390. In Priest, the injured party, upon being asked if police showed him anything when he made the report, answered, 'Mr. Lord (policeman) showed me a file of known pickpockets;' and further, 'Officer Lord showed me the police files on Margaret Priest (appellant) and I identified a picture of her.' In addition, the witness was asked if he examined a number of photographs in the presence of Officer Lord. The State argued to the jury, 'After talking there to T. T. Lord (policeman) he learned the true identity of Margaret Priest.' This Court said the argument and inquiries by the State implied that the appellant was a known pick-pocket and notwithstanding the court's rulings and instructions, the jury could not wholly disregard same. This Court further noted that the effect of these matters on the jury was evidenced by the maximum penalty being assessed.

In the instant case, Mrs. Daniel testified she went to the police station the day following the robbery to look at some pictures, and upon being asked 'Did you pick a photo of the person that you said did it?', an objection to the question was made and sustained. The witness further testified she saw seventy-five pictures and an objection to this testimony was sustained. The affirmative answer of the witness to a question about Exhibit One being the picture she picked out at the police station was not objected to. An objection to the introduction of the picture was sustained. Unlike the Priest case, there is an absence of any showing that the picture came from pictures of known violators of any law and there was no argument that implied that the witness learned of appellant's criminal activity at the police station.

We perceive no error.

Appellant contends the trial court was in error in admitting hearsay statements made at the police station. The only objection made by appellant was to the testimony of Officer Bartlett, 'When she found this picture she says, 'Here he is; here is the man who robbed me." An objection to this testimony that it was hearsay was sustained and appellant's request that the jury not consider same was granted. Appellant contends that the court should have granted a mistrial. Since no motion for mistrial was made, the appellant is in no position to complain. Mahaffey v. State, Tex.Cr.App., 471 S.W.2d 801; Hoover v. State, Tex.Cr.App., 449 S.W.2d 60. Appellant cites the court to the testimony of Officer Bartlett generally as being in violation of the hearsay rule. If there were other hearsay statements in the testimony of Officer Bartlett, appellant's failure to object to the same precludes review by this Court. Grant v. State, Tex.Cr.App., 472 S.W.2d 531; Verret v. State, Tex.Cr.App., 470 S.W.2d 883.

Appellant contends that the court should have granted a mistrial when the State offered a picture into evidence as the one picked out by Mrs. Daniel at the police station.

An objection to the introduction of the picture was sustained. No further relief was requested and nothing is presented for review. Grant v. State, supra; Verret v. State, supra.

The appellant contends that the court erred in overruling his objection to the testimony regarding description of the robber given at the police station out of the presence and hearing of appellant.

Officer Bartlett testified that Mrs. Daniel gave him a description of the robber and that it was basically the same description she had given the night before other than the addition that the robber's skin was rough and she couldn't determine whether or not it was pimples, scars, or what the roughness was.

In Ramos v. State, 141 Tex.Cr.R. 126, 147 S.W.2d 809, it was said: 'The State could not bolster up the testimony of the prosecutrix . . . by what she said to the officers, unless the defendant had first shown that she made statements after the alleged occurrence at variance with her testimony relative to the identification of appellant.' On direct examination, Mrs. Daniel had testified that she told Officer Bartlett the next day (following the robbery) that the robber had a rough face. On cross-examination of Mrs. Daniel, the following occurred:

'Q Right now I am asking you, did you tell the police anything else about the description of this man other than what you just told us?'

The witness (Mrs. Daniel): 'Well, that was at the time. No, sir, had medium complexion, I said, too.

'Q What?

'A Medium complexion.

'Q Medium complexion.

'A Yes sir.'

The appellant, having shown that Mrs. Daniel had given a description at the time in question at variance with the one given the officer the next day, brings this testimony within the exception set forth in Ramos v. State, supra....