Jenkins v. State, 43768
| Decision Date | 09 June 1971 |
| Docket Number | No. 43768,43768 |
| Citation | 468 S.W.2d 432 |
| Parties | Robert Lee JENKINS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Tim C. Curry, Fort Worth (court appointed), for appellant.
Frank Coffey, Dist. Atty., Jerry J. Loftin, George McManus, Roger Crampton and John Garrett Hill, Asst. Dist. Attys., Fort Worth, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for robbery by assault, enhanced under the provisions of Art. 62 of the Vernon's Ann. Penal Code; trial was before a jury and the court assessed the mandatory punishment of life.
The evidence viewed most favorably to the jury's verdict shows that while Artie R. Ewing, Jr., was stopped at a red light on Lancaster Road in Fort Worth on November 8, 1969, at about 10 p.m., the appellant, reaching through the open window, stuck a gun in Ewing's left temple and demanded his money, so Ewing gave the appellant his billfold. The appellant then drove the car to a different place where the appellant shot Ewing in the back and in the right arm and locked him in the trunk and drove off. Appellant later stopped the car, asked Ewing if he was still alive, and told Ewing to get out of the trunk. Ewing ran off and while he was running the appellant shot him again in the arm, but he still managed to escape.
The appellant's first ground of error challenges the testimony of two police officers pertaining to fingerprints taken from an automobile, alleging that the State failed to prove that the automobile in question belonged to the injured party.
Officer J. W. Burkhart of the Fort Worth Police Department testified that on the night in question he took some fingerprints off a 1967 red Chevrolet that was located near the Glass Key night club, but that he did not know who was the owner of the vehicle. 1
Officer F. M. Alexander, identification officer for the Fort Worth Police Department, took some fingerprints of the appellant, 2 and based on a comparison between the two sets of prints, testified that they were taken from the same man.
Ewing had testified that he was driving a 1967 Chevelle Malibu, a Chevrolet, and that he had last seen it near the Glass Key night club when he ran from appellant.
Counsel for the appellant objected to the admission of State's Exhibit One into evidence, at the time of its introduction, solely on the ground that writing on the side of the exhibit constituted hearsay. Counsel objected to Alexander's testimony solely on the ground that he had not been qualified as an expert to compare the two sets of fingerprints. It was only after the State had rested that counsel for the appellant moved that,
When this evidence was admitted, 'No objection on the ground now urged was made and called to the trial court's attention and thus no error is presented for appellate review.' Hulin v. State, Tex.Cr.App., 438 S.W.2d 551; Guajardo v. State, 168 Tex.Cr.R. 503, 329 S.W.2d 878; Cork v. State, Tex.Cr.App., 362 S.W.2d 314; Cork v. State, Tex.Cr.App., 362 S.W.2d 316.
And the motion to withdraw State's Exhibit One from the jury came too late to preserve any alleged error since it was made after the exhibit had been admitted and after the State had rested its case. Klein v. State, Tex.Cr.App., 384 S.W.2d 872; Fernandez v. State, 158 Tex.Cr.R. 266, 254 S.W.2d 1004.
The appellant's first ground of error is overruled.
The appellant's second ground of error complains that there was written material on State's Exhibit One which constituted hearsay. The notation was as follows:
'Shooting
900 Luella
11--8--69 11:55 p
Victim: Artie R.
Ewing Jr.
J. W. Burkhart 599
Red 67 Chev 2 Dr.
#1 & #2 from outside, Rt door glass #3 from inside rt. vent glass'
It appears that the writing complained of consists of a notation as to the place, date, time, victim, the officer's name, and a description of the automobile and the location of the automobile from which the fingerprints were taken. There was no notation on the card which connected or would tend to connect the appellant with the offense charged. 'The notations were means of identification of the exhibits and nothing of an evidentiary nature was presented to the jury which was not otherwise...
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Ex parte Sims, 55139
...and not mandatory. Likewise, we have consistently held that Article 20.20, V.A.C.C.P., is directory and not mandatory. Jenkins v. State, 468 S.W.2d 432 (Tex.Cr.App.1971); Cotton v. State, 500 S.W.2d 482 (Tex.Cr.App.1973). That article provides that the names of witnesses on whose testimony ......
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Nichols v. State
...of a State's witness whose name was not placed on the indictment. Linzy v. State, 478 S.W.2d 950 (Tex.Cr.App.1972); Jenkins v. State, 468 S.W.2d 432 (Tex.Cr.App.1971); Mullins v. State, 425 S.W.2d 354 (Tex.Cr.App.1968) and Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W.2d 41 (1929). The appellan......
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Teague v. State
...to endorse on an indictment "the names of the witnesses upon whose testimony the [indictment] was found." See Jenkins v. State, 468 S.W.2d 432, 435 (Tex.Cr.App.1971) (this provision is directory rather than mandatory). Appellant argues that denial of this motion unduly restricted the abilit......