Hughes v. State

• Decision Date: 25 April 1973
• Docket Number: No. 46098,46098
• Citation: 493 S.W.2d 166
• Parties: Alvin HUGHES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 166

493 S.W.2d 166

Alvin HUGHES, Appellant, v. The STATE of Texas, Appellee.

No. 46098.

Court of Criminal Appeals of Texas.

April 25, 1973.

Rehearing Denied May 9, 1973.

James P. Finstrom, Dallas, for appellant.

Henry Wade, Dist. Atty., and Mike McCollum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery. Punishment was assessed by the jury at life.

At the outset, appellant contends that the evidence is insufficient to sustain the conviction, in that it shows the commission of two separate robberies and fails to connect appellant in any manner with the offense charged in the indictment.

The indictment, upon which prosecution is based, charges appellant with the robbery of William B. Scott.

About noon, on August 27, 1970, Scott, Donald Starkes and Will Turner, employees of a beer distributorship, were in the course of making a delivery to the Speedy Market Drive-In Grocery on Pennsylvania Street in Dallas. After determining the amount of beer needed by the Speedy Market, Scott went to the truck to unload the beer, while Turner and Starkes took care of other duties inside the store. When Scott raised the door on the truck, he felt an arm around his neck and an object pressed against his head. Scott was told not to turn around and was asked, 'Where is your money?' Starkes decided to go outside to ask Scott how much beer was to be left at the store. When Starkes was within three or four feet of Scott, he noticed that a man was holding a gun at Scott's head. As Starkes turned around to go into the store to call the police, he saw appellant come from around the other side of the truck. Appellant placed a gun against Starkes' forehead and directed Starkes to get over by the side of Scott. Appellant took Starkes' billfold containing $350. The other man took $2,000 belonging to the distributorship from Scott. In addition, Scott lost $150 of his own in the robbery. Scott testified that before the men left, 'they said, 'Stand here for five or ten minutes before you leave." The two robbers then disappeared behind the beer truck and were heard driving away.

Starkes stated that he had lived in the same neighborhood with appellant for six or seven years and knew him by the name 'Butter Dog.' Just prior to the stop at the Speedy Market, a delivery had been made at Tom's Grocery Store where Starkes testified he saw appellant and two others seated on the hood of appellant's car, a blue Chevrolet Malibu, with 'Butter Dog' stenciled on the side.

Officer Anderson, of the Dallas Police Department, testified that at a time shortly after the robbery, he saw appellant traveling east on Bethurum Street in a blue Malibu Chevrolet with two male companions. Anderson was travelling west and turned to follow appellant.

The short chase which ensued was terminated by appellant bringing his vehicle to a stop. Appellant and his two companions 'jumped out of the car running' and eluded Anderson. A billfold found in the abandoned car was identified by Starkes as the one which was taken from him in the robbery.

Appellant argues that the evidence is insufficient to show that he acted as a principal in the robbery of Scott. Appellant correctly asserts that mere presence at the place of the commission of the offense will not constitute one a principal. However, presence is a circumstance tending to prove that a person is a principal, and taken with other facts, may be sufficient to show that he was a participant. Harper v. State, Tex.Cr.App., 477 S.W.2d 31; Childress v. State, Tex.Cr.App., 465 S.W.2d 947; Johnnene v. State, Tex.Cr.App., 417 S.W.2d 64.

The court charged on the law of principals and we find the evidence sufficient to sustain the jury's verdict. Hill v. State, Tex.Cr.App., 466 S.W.2d 791; Gerzin v. State, Tex.Cr.App., 447 S.W.2d 925; McLaughlin v. State, Tex.Cr.App., 426 S.W.2d 244.

Appellant's second contention that a variance exists between the allegation of the indictment alleging that Scott was robbed and the proof which showed that Starkes was robbed is decided adversely to appellant in our disposition of his first contention.

Appellant contends that the trial court erred when it failed to grant appellant's motion for mistrial after argument by the prosecutor that the jury should consider the fact that appellant might be paroled from the penitentiary when setting his punishment.

The record reflects that appellant argued to the jury:

'Should you, as a juror, give this Defendant twenty years in the penitentiary, give him that in 1971, twenty years from today, thirty years--today is a year 1001 (sic). Think where you might be--.'

'When I say be realistic, I think what twenty years means, what thirty years means when you are deliberating about these various functions that punishment is designed to serve. If you punish a man, give him a twenty-year sentence, think how long twenty years is. It's a long time. I don't think any of us would quarrel with that.'

Appellant urges that the court erred in not granting his motion for mistrial when the following occurred during the State's argument:

'Now, they have talked to you about sentencing. Now, Mr. Finstrom says thirty years is this long and twenty years is this long. Here again, I am not going to deal at great length with you people, because I believe in your common sense, your common knowledge, and your intelligence. You know or should know that twenty-year senence in this day and age doesn't mean twenty years, necessarily.

'MR. FINSTROM: Object to that line of argument.

'THE COURT: Sustained.

'MR. FINSTROM: Ask the Jury be instructed to disregard it.

'THE COURT: Jury disregard the last remark of Mr. Whaley. Do not consider it for any purpose.

'MR. FINSTROM: Move for a mistrial.

'THE COURT: Mistrial will be overruled.'

'I still have confidence in the intelligence of this Jury. I think it's a matter of common knowledge that there is in Texas a Board of Pardons and Paroles.

'MR. FINSTROM: Here again, object to argument along the line of the Board of Pardons and Paroles or anything suggestive of this to the Jury.

'THE COURT: Sustained.

'MR. FINSTROM: Jury be instructed to disregard it.

'THE COURT: Jury disregard as to what the State of Texas has and not consider it for any purpose whatsoever.

'MR. FINSTROM: Reurge our Motion for Mistrial.

'THE COURT: Motion of Mistrial is overruled.'

It is a matter of common knowledge that inmates are released on parole from the Texas Department of Corrections, but the jury, in a felony case, in determining the punishment to be assessed, is not authorized to resort to or apply the parole law. Argument urging them to do so is improper. Graham v. State, Tex.Cr.App., 422 S.W.2d 922.

During the argument of appellant concerning length of punishment, the court instructed the jury, 'Ladies and gentlemen, I have instructed you along that point and, of course, you will be bound by the instruction in that case.' ¹

Appellant first injected the subject of how long twenty or thirty years is in his argument to the jury.

When the prosecutor argued that twenty years doesn't necessarily...