Levell v. State, 42780
| Decision Date | 22 April 1970 |
| Docket Number | No. 42780,42780 |
| Citation | 453 S.W.2d 831 |
| Parties | James Dale LEVELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Grover L. Stephens, El Paso, for appellant.
Jamie C. Boyd, Dist. Atty., and Wanda E. Creamer, Asst. Dist. Atty., El Paso, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is robbery with firearms; the punishment, 50 years.
Appellant and one Sue Allen were jointly indicted for robbery with firearms of Feliciano Chavez. Severance was granted. Appellant pleaded not guilty before a jury. He was found guilty and the same jury assessed his punishment.
The following narrative of the evidence which the state agrees clearly sets forth the principal testimony and evidence in the trial is quoted from appellant's brief.
'Feliciano Chavez testified that appellant came to his service station in El Paso County, Texas on the afternoon of November 27, 1968. At such time, Chavez was engaged in testing an automobile battery in one of the bays of the service station when his employee, Jesus Lara, called to him. Chavez looked around and saw appellant pointing a pistol at Lara. Appellant motioned Chavez into the service station office and upon reaching the office, appellant asked Chavez for 'the money'. Chavez gave appellant the money ($33.00) as well as Chavez's wallet. Appellant then tripped the safety off of the pistol and shot Chavez.
The sole ground of error is:
'In allowing the prosecuting witness, Feliciano Chavez on direct examination, and over the objection of appellant's counsel, to testify about the nature and extent of his injuries, treatment, and his then existing condition, when such testimony served no purpose and solved no issue and was prejudicial and inflammatory of the rights of appellant before the jury, the trial court erred in overruling appellant's objection, and this case should be reversed.'
Appellant relies upon Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838, and Reynolds v. State, Tex.Cr.App., 372 S.W.2d 540, both of which were cases in which a conviction for aggravated assault with a motor vehicle was reversed (the writer dissenting).
Fields v. State, 160 Tex.Cr.R. 498, 272 S.W.2d 120, and Roberts v. State, 172 Tex.Cr.R. 500, 360 S.W.2d 883, in both of which a conviction for robbery with firearms was affirmed by unanimous opinion, are deemed authority for overruling appellant's ground of error.
In Roberts v. State, supra, we quoted from Fields v. State, supra:
'In Fields v. State, 160 Tex.Cr.R. 498, 272 S.W.2d 120, 121, we said:
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