Johnson v. State

• Decision Date: 03 February 1971
• Docket Number: No. 43429,43429
• Citation: 463 S.W.2d 736
• Parties: Henry Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 736

463 S.W.2d 736

Henry Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 43429.

Court of Criminal Appeals of Texas.

Feb. 3, 1971.

Rehearing Denied March 17, 1971.

Herbert Green, Jr., Dallas, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and Edgar A. Mason, Asst. Dist. Attys., Dalls, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for robbery by assault. The punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., was assessed at life.

At the outset we observe that the appellant challenges the sufficiency of the evidence to sustain the conviction.

Edward Lee Dubrul, assistant manager of a Cabell Drive In store in the city of Dallas, testified that on January 9, 1968, at about 8:30 p.m. he was counting the money in the cash registers. At the time Roma Henson was using the store's pay telephone and her brother-in-law, Jerry Henson, was waiting for her. Dubrul related that at this time he saw three colored males outside the store, one of whom entered the store and talked to Jerry Henson. After motioning to Roma, Jerry left the store with her. Dubrul then related he was robbed of approximately $170.00 by the three colored men who had entered the store, one of whom grabbed him around the neck while another held a knife to his stomach. During the course of the robbery he was shot in the back. Dubrul, who testified he was in fear of his life and did not consent to the taking of the money from his care, custody and control, could not identify any of his assailants.

Roma Henson testified she left the store with her brother-in-law and watched the robbery through the glass doors. She identified the appellant as the man who grabbed Dubrul around the neck and who later shot him in the back.

On cross-examination Jerry Henson, a defense witness, testified to substantially the same facts as Roma Henson and identified the appellant as the man who shot Dubrul in the back.

The appellant did not testify but offered several alibi witnesses. Such defensive issue was submitted to the jury and was rejected by their verdict.

We find the evidence sufficient to support the jury's verdict.

Nevertheless, appellant still urges the evidence was insufficient since the conviction depended in part upon the testimony of Jerry Henson who had a prior criminal record. After Henson had on cross-examination identified the appellant as noted above, the appellant elicited from him on re-direct examination that he had been convicted of a felony. The court then sustained the State's objection that the appellant was attempting to impeach his own witness. Later out of the jury's presence it was shown that the witness did not know the meaning of 'a felony,' that he had never been convicted of a felony, and had only been jailed for burglary and released when the police discovered they had the wrong man.

Certainly no error is presented by these circumstances.

Appellant also complains that the prior conviction for unlawfully breaking and entering a motor vehicle with the intent to commit the crime of theft alleged for enhancement could not be used to enhance punishment for robbery by assault under the provisions of Article 62, V.A.P.C., since it was not the same offense or one of the same nature.

By the term 'same offense' as used in Article 62, supra, as to repetition of offenses is meant a similar offense, one of the same nature or character. See 1 Branch's Ann.P.C., 2d ed., Sec. 698.

The offense of robbery is but an aggravated form of theft. Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165; Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462, cert. den., 364 U.S. 935, 81 S.Ct. 386, 5 L.Ed.2d 369.

In Dickey v. State, supra, it was held that the felony offense of theft by false pretext by means...