Hightower v. State

• Decision Date: 18 November 1981
• Docket Number: No. 3,No. 61119,61119,3
• Citation: 629 S.W.2d 920
• Parties: James Steven HIGHTOWER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 920

629 S.W.2d 920

James Steven HIGHTOWER, Appellant, v. The STATE of Texas, Appellee.

No. 61119.

Court of Criminal Appeals of Texas, Panel No. 3.

Nov. 18, 1981.

Rehearing Denied En Banc April 7, 1982.

Nancy J. Canonico, Waco, for appellant.

A. Rick Hightower, on motion for rehearing, Waco, for appellant.

Felipe Reyna, Dist. Atty. and Karen C. Matkin, Asst. Dist. Atty., Waco, Robert Huttash, State's Atty., Austin, for the State.

Before TOM G. DAVIS, ODOM and DALLY, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. After finding appellant guilty, the jury assessed punishment, enhanced by a prior conviction, at 50 years.

In his first ground of error, appellant maintains the court erred in overruling his motion to quash the indictment. He contends the indictment was insufficient to provide him notice of the offense with which he was charged because the property description in the indictment is insufficient and the indictment fails to state who owned the property. The indictment under which appellant was prosecuted alleges in pertinent part that on May 8, 1978, appellant:

"did then and there intentionally and knowingly while in the course of committing the offense of theft, and with the intent to obtain and maintain control of property, namely current monies of the United States, threaten and place RONALD KING in fear of imminent serious bodily injury and death by using and exhibiting a deadly weapon, namely a handgun."

The offense of aggravated robbery, under V.T.C.A. Penal Code, Sec. 29.03, is no longer an aggravated form of theft, but is rather a form of assault. Ex Parte Lucas, 574 S.W.2d 162 (Tex.Cr.App.). It has thus been held that it is unnecessary to allege the elements of theft in an aggravated robbery indictment. Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.). In Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.), it was held that even if a motion to quash is filed, an indictment for aggravated robbery which alleges the name of the person whom it is alleged the defendant robbed, gives sufficient notice without particularly describing the property he allegedly took or intended to take in the course of committing theft.

In the instant case, appellant's motion to quash the indictment complained of both the property description contained within the indictment and the failure to allege the name of the owner of the property. We find that the indictment, as set out above, gives appellant sufficient notice of the offense with which he was charged. Hill v. State, supra. No error is shown in the court overruling appellant's motion to quash.

In his seventh and eighth grounds of error, appellant challenges the sufficiency of the evidence to support his conviction. He maintains that there is insufficient evidence as to the elements of consent and ownership. He further urges that the State "failed to put on any evidence justifying a conviction beyond a reasonable doubt."

Ronald King testified that on May 8, 1978, he was employed as the assistant manager for a Pizza Hut restaurant in Waco. King related that on the date in question, he was working both in the kitchen and at the cash register. Three individuals entered the restaurant and ordered a pizza. King stated that appellant approached the cash register in order to pay the bill. Appellant then handed King a small pizza box and directed him to put the money from the cash register inside the box. King testified that appellant's companion was standing near a front door with a handgun. King complied with appellant's request and the two men fled from the restaurant.

Appellant urges the evidence is insufficient as to the element of consent. The record reflects that on direct examination, the prosecutor asked King:

"Q. Okay. Did you give your consent to have this money taken?

"A. No, ma'am."

We find the evidence sufficient to prove that the money was taken without the consent of the complainant. Appellant next contends the evidence is insufficient to prove ownership.

In Cross v. State, 550 S.W.2d 61 (Tex.Cr.App.), the defendant was convicted of aggravated robbery. On appeal, he maintained the evidence was insufficient to prove ownership of the property taken from the complaining witness. The record showed that the defendant robbed the cashier at a grocery store in Mineral Wells. This Court found that under the present Penal Code, the evidence is sufficient to show that the property was taken from the care, custody and control of the complaining witness. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.).

In the instant case, King was employed as the assistant manager for the restaurant. As such, he performed the duties of both cook and cashier. The money was taken from him while he was performing his duties as cashier. We conclude that the evidence is sufficient to show that the property was taken from his care, custody and control. We find the evidence sufficient to prove the element of ownership and likewise sufficient to support appellant's conviction for aggravated robbery. Appellant's seventh and eighth grounds of error are overruled.

In his second ground of error, appellant maintains the court erred in allowing his common-law wife to testify against him. He contends that her testimony was erroneously admitted in violation of Art. 38.11, V.A.C.C.P.

Appellant testified that his common-law wife is Clara Turnbough. He related that he had told numerous individuals that he and Turnbough were married. He further stated that they had lived together for several days. Appellant's mother, Dorothy Hightower, testified that Turnbough had told her that she and appellant were married. Hightower further related that her son had told her that Turnbough was his wife.

Turnbough related that she and appellant never had an agreement to have a common-law marriage. She further stated that she never had any intention to marry appellant. Turnbough related that she had never represented to anyone that appellant was her husband. Finally, she stated that she had never lived with appellant.

The elements of a common-law marriage are an agreement presently to become man and wife, a living together pursuant to the agreement and cohabitation as husband and wife, and a holding out of each other to the public as husband and wife. Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.). A claim of common-law marriage is closely scrutinized by the courts and the agreement of marriage should be specific on both sides. Chatman v. State, 513 S.W.2d 854 (Tex.Cr.App.).

In Krzesinski v. State, 169 Tex.Cr.R. 178, 333 S.W.2d 149, the defendant maintained the court erred in allowing his common-law wife to testify against him at trial. The evidence revealed that the defendant offered evidence seeking to establish that the witness was in fact his common-law wife. However, there was also evidence which tended to show that their relationship had been only an illicit one. The Court concluded that the evidence did not show as a matter of law that the witness was the common-law wife of the defendant. The Court therefore found that the failure to complain that the issue was not submitted to the jury, or to request that it be submitted, waived the error which the defendant sought to present. Id. 333 S.W.2d at 151.

In the instant cause, there was conflicting evidence as to whether Turnbough was in fact appellant's common-law wife. Appellant and his mother presented evidence which tended to establish that Turnbough was in fact his common-law wife. On the other hand, Turnbough denied that she and appellant had a common-law marriage. The existence of a common-law marriage is an issue of fact to be determined by the trier of the fact. Warren v. Kyle, 565 S.W.2d 313 (Tex.Civ.App.-Austin 1978, no writ). We find that appellant's failure to complain that the issue of a common-law marriage was not submitted to the jury, or to request that it be submitted, waived the error he now seeks to present. Krzesinski v. State, supra. Appellant's second ground of error is without merit.

In his third ground of error, appellant further contends the court erred in permitting Turnbough to testify as a witness for the State. He maintains that she should not have been allowed to testify because her name did not appear on a witness list which was provided to appellant pursuant to a motion for discovery.

The record reflects that on August 3, 1978, the court granted appellant's motion for discovery and ordered the State to furnish a list of the names of the witnesses the State, in good faith, intended to use upon its case in chief. Such list was to be furnished to appellant prior to the voir dire examination of the jury panel. The jury was selected and sworn on August 7, 1978. When Turnbough was called as a witness by the State, appellant objected to her testimony on the basis that her name had not been included upon the witness list furnished by the State. In this regard, the prosecutor stated as follows:

"MR. MALONE (Prosecutor): I did on that Thursday or Friday, or whenever it was that Mr. Tandy called, I told him to assume that we were going to use her. That although I was not positive of it, that for his-for the sake of his Defense, he ought to assume she was going to be called.

"MR. TANDY (Defense Attorney): Your Honor, the Court entered an order that he would furnish me names of all witnesses prior to voir dire. He furnished me a list and when I was talking to the jury yesterday I asked if these were all. And he said, 'These right here are the ones.' He never furnished Clara Turnbough's name.

"MR. MALONE: Well, I told him to assume that she would be used, Your Honor."

In Young v. State, 547 S.W.2d 23 (Tex.Cr.App.), it was held that the witnesses should be disclosed if they will be used by the State at any stage in the trial. If a witness who was not included within a witness list is permitted to testify, the standard of review is whether the trial court abused its discretion in...