Langham v. State
| Decision Date | 07 December 1971 |
| Docket Number | No. 44323,44323 |
| Citation | 473 S.W.2d 515 |
| Parties | Jesse Leon LANGHAM, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Stuart M. Nelkin, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Dan McCairns, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal arises out of a conviction for robbery by assault with the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., being assessed at life.
The Stae's evidence reflects that on March 9, 1969, the 18 year old complaining witness Sherman Mills who was hitch hiking accepted a ride in an automobile containing five men, one of whom was the appellant. After stopping at a service station and after the driver had been stopped and given a traffic citation (defective tail light) by a Houston city police officer the car was driven to a dark place off Moody Street in the city of Houston. Mills then testified all of the occupants got out of the car and the five men beat him and took from him a ring, a jacket, his wallet and money. He related that the appellant struck him on the jaw and was the assailant who took his jacket. When his attackers departed Mills went to a nearby service station and reported the incident to the police.
In his first two grounds of error appellant contends the trial court erred in failing to suppress Mills' in-court identification of him as well as evidence that Mills had made some pretrial photographic identifications of him.
Prior to trial the court conducted a hearing in the jury's absence to determine the admissibility's of the identification evidence as recommended in Martinez v. State, Tex.Cr.App., 437 S.W.2d 843. At the conclusion of the hearing the court found the in-court identification to be of independent origin and not tainted by any pretrial identification and further, 'There is no showing of undue, unwarranted or overly suggestiveness by photographs or otherwise concerning identification of this defendant.' The motion to suppress was denied.
At the trial on the merits the State offered the in-court identification and also offered Mills' testimony that he had identified the appellant from photographs shown him. The circumstances under which pretrial identification was made, the inconsistencies in some of Mills' earlier testimony and the details of the offense were fully explored by both sides in the jury's presence.
We conclude that the error, if any, was harmless. Walter Glenn Johnson testified for the State that he was the driver of the car on the night in question and that he was now serving time for the same robbery after having entered a plea of guilty. He testified that the appellant was one of his companions and he corroborated Mills' statement that the appellant had struck Mills in the jaw and had taken Mills' jacket.
Testifying in his own behalf appellant admitted being in the car on the occasion in question. He acknowledged that he had suggested they pick up Mills and that he was the one who suggested to Mills to leave the car at the scene of the robbery, but he denied any complicity in the offense or knowledge of the intentions of his companions. He claimed he remained in the car during the assault upon Mills and had remarked 'Ain't that pitiful?'
The appellant having been placed at the robbery scene by his own testimony and that of the witness Johnson, the error, if any, of admitting Mills' identification testimony was harmless. See Smith v. Texas (Tex.Cr.App.1970), 450 S.W.2d 618, 621; Garcia v. State (Tex.Cr.App.1971), 472 S.W.2d 784; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.
Next appellant complains of the court's action in denying his motion for a mistrial 'following the repeated violations by the State of the Court's order to refrain from questioning' him 'with respect to his parole status.'
Appellant's direct examination commenced with the fact that he was being detained at the Harris County Rehabilitation Center, and although there had been three robbery charges he was now being held only on the instant offense. Subsequently, on direct examination, he acknowledged he had been to prison three times, for 'car theft,' 'burglary,' etc. and 'did jail time twice.'
On cross-examination, without objection, it was elicited from the appellant that he had been released on parole in May, 1968, as a result of the 'car theft' conviction and that the instant offense occurred in March, 1969. Thereafter he was asked the name of his parole officer and could only recall 'Wright' but not the full name. The court then sustained whatever objection was made to the court out of the hearing of the court reporter. The State continued its interrogation by asking if the appellant had ever gone to see the parole officer and what was his first job after his release on parole. Neither question was answered, the objections to the questions were sustained, and the jury was instructed to disregard 'the last question' for any purpose whatsoever. The motion for mistrial was overruled.
While some of the questions complained of seem irrelevant, in light of the evidence properly before the jury and the prompt action of the court, we do not perceive error of a reversible nature. It has been held that a defendant testifying in his own behalf may be impeached by a showing he was on parole at the time of the alleged offense. Mitchell v. State (Tex.Cr.App.1969), 436 S.W.2d 539. It should also be borne in mind that it is a matter of common knowledge that persons given prison terms are frequently released on parole.
Next appellant complains of the trial court's refusal to grant a mistrial because of the cumulative prejudice created by improper remarks of the prosecuting attorney. He calls our attention to three instances. The first concerns a remark about the relevancy of certain evidence which was made to the court in the jury's absence. The other two relate to the prosecutor's statements, after the court had sustained a defense objection, to the effect that the prosecutor 'was just trying to get to the truth.' The court's ruling in each instant was correct, and while the remarks should not have been made, we find no...
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