Maden v. State, 52976
| Decision Date | 20 October 1976 |
| Docket Number | No. 52976,52976 |
| Parties | Nathaniel MADEN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Brown & Brown, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., Mary Anne Wiley, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.
This is an appeal from an order revoking probation.
On August 21, 1973, appellant pled guilty to passing a forged instrument and punishment was assessed by the court at three years. Imposition of sentence was suspended and appellant was placed on probation.
The State filed a motion to revoke probation on September 4, 1975, alleging appellant had committed the offense of robbery on August 20, 1975, in violation of probationary condition 'a'. 1 After a hearing on the motion to revoke, the court found appellant had so violated the conditions of his probation, revoked probation, and sentenced appellant to not less than two nor more than three years confinement.
Appellant contends the evidence is insufficient to show the committed the alleged robbery. Witness Henderson, an employee of a hat store in Lubbock, testified on August 20, 1975, two black men entered the store and inquired about the repair and cleaning of a straw hat worn by the taller of the two men. One of the men then grabbed her around the neck, chocked her and took her to the back of the store. He told her to be quiet or he would blow her head off. During this time the other man took $45.85 from the cash register. Witness Henderson was asked if she saw either of the men that robbed her in the courtroom. She replied, 'I couldn't positively say yes.' She described the two men as being black males in their late twenties. One was 5 10 or 5 11 and the other was about 5 8 . They were both of medium build. Witness Henderson identified State's exhibit three as being the straw hat worn by one of the two men that day.
Officer Chappell of the Lubbock Police Department testified he investigated a robbery report of August 20, 1975. Mrs. Henderson gave him a description of the two men that had committed the offense. She said they were both black males about 25 years old, of slender build and one was a little over six feet tall, the other about five feet eleven.
Detective Clanton of the Lubbock Police Department testified he went to an apartment on East 28th Street on August 22, and asked appellant to appear in a lineup. He stated appellant was very cooperative. Clanton described how the lineup was conducted and gave the names of the other persons appearing in the lineup. Clanton stated witness Henderson picked out appellant as looking like one of the men involved in the robbery. He stated she felt appellant was the man, but she could not swear to it. An employee and customer of the store adjacent to the scene of the offense also viewed this lineup. The employee could not identify anyone in the lineup as being one of the persons he saw leaving the hat store at the time of the offense. The customer thought appellant could have been one of the men, but he could not swear to it. Clanton further testified that witness Henderson had participated in two previous lineups in which appellant did not appear. In the first lineup she picked out oen person as being one of the men involved in the robbery, and in the second lineup she picked out two people as possibly being involved.
Clanton further testified that he and appellant returned to the apartment. Appellant signed a consent to search form and opened the door to the apartment. Clanton identified State's exhibit three as the straw hat he found in a chair in the living room of the apartment. The testimony concerning the search of appellant's apartment was corroborated by Detective Daniels of the Lubbock Police Department. Daniels also stated that appellant said the straw hat belonged to his brother.
Appellant testified that he was at home at the time of the alleged robbery. He denied participating in the robbery. He stated he lived in the apartment with his brother, his brother's wife, Clifford West and Richard Johnson, and the apartment was rented in his brother's name. He also stated he voluntarily agreed to appear in the lineup and to let the officers search the apartment. He stated the straw hat belonged to Clifford West and appellant claimed he had never worn it or any other hat. During cross examination appellant put the hat on. The record shows the following:
'Q (By the prosecutor) Would you put this on please?
A (Defendant trying on hat.) It won't even fit my head.
Q Okay. If your hair is pulled out it will fit, right?
A No, ma'am, if my hair was pulled out, I doubt if it would fit, it sure wouldn't fit then.
Q When you pack it down, it makes it harder to fit on, right?
A I don't know. Like I say, I ain't never wore a hat.'
On redirect, the appellant again tried on the hat and the following occurred:
Although appellant failed to object to Detective Clanton's testimony concerning Henderson's and the customer's identification of appellant at the pretrial lineup, it is clear that this testimony was hearsay and inadmissible. See Williams v. State, Tex.Cr.App., 531 S.W.2d 606 (Opinion on Appellant's Motion for Rehearing); Weaver v. State, 68 Tex.Cr.R. 214, 150 S.W. 785; Haughton v. State, 99 Tex.Cr.R. 42, 267 S.W.2d 715; Jamail v. State, 99 Tex.Cr.R. 127, 268 S.W. 473. The customer did not testify during the hearing and witness Henderson did not state she had made a prior identification of either of the two men that had robbed her. See and compare Hills v. State, Tex.Cr.App., 524 S.W.2d 692.
As this Court said in Lumpkin v. State, Tex.Cr.App., 524 S.W.2d 302, 305:
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