Mason v. State, 44131
| Decision Date | 02 November 1971 |
| Docket Number | No. 44131,44131 |
| Citation | 472 S.W.2d 787 |
| Parties | Mack C. MASON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Melvyn Carson Bruder, Dallas (appointed on appeal only), Tim K. Banner, Dallas (appointed counsel), for appellant.
Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
DALLY, Commissioner.
The conviction is for robbery by assault with punishment assessed at twenty-five years.
The sufficiency of the evidence is challenged by the appellant's first ground of error, stated as follows:
'There is no evidence to sustain appellant's conviction for the offense of robbery in that the State adduced no evidence that the complaining witness was assaulted by appellant, no evidence that any violence was done to the complaining witness by appellant, and no evidence that the complaining witness was placed in fear of life and bodily injury prior to the taking of the money from the complaining witness, and appellant's conviction, unsupported by any evidence to sustain a statutory element of the offense, thus constitutes a violation of due process under Amendment Fourteen, United States Constitution.'
This contention is without merit. The appellant and an accomplice entered an apartment where several persons had been playing poker, the complaining witness was standing, talking on the telephone. Complainant was informed 'This is a stickup.' Appellant's companion had taken from his back pocket a silver-plated .38 revolver and the appellant was holding 'a blue steel .38' in his hand. $225.00 in money was then taken from the pocket of the complainant and he was told to lie on the floor. This is sufficient to constitute an assault, even though the complaining witness testified that he was 'not exactly scared' and that he would have given up the money even though the appellant had not had a gun. See Colston v. State, Tex.Cr.App., 470 S.W.2d 890, and Cassidy v. State, 168 Tex.Cr.R. 254, 324 S.W.2d 857.
Appellant's second ground is that the 'appellant's conviction was obtained in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States in that the identification testimony utilized at his trial was tainted by an illegal one-to-one confrontation.' The confrontation of which appellant complains concerns only one of the witnesses who identified the appellant at trial. The complainant and William Lee Sharpe, another victim of the robbery, identified the appellant at the trial, but neither was present at the confrontation complained of. Any possible error would be harmless. Garcia v. State, Tex.Cr.App., 472 S.W.2d 784 and Smith v. State, 450 S.W.2d 618 (Tex.Cr.App.1970). Furthermore, one of the witnesses who was present at the time the offense was committed and at the time of the confrontation did not identify the appellant either during the confrontation or at the trial. The evidence of which complaint is made was first fully developed on cross-examination by appellant's attorney and it appears to...
To continue reading
Request your trial
-
Livingston v. State
...error in admission of the identification evidence was harmless. See Williams v. State, 477 S.W.2d 885 (Tex.Cr.App.1972); Mason v. State, 472 S.W.2d 787 (Tex.Cr.App.1971). Appellant's fourteenth point of error is In his fifteenth point of error appellant contends the trial court erred in ref......
-
State v. Hradek
... ... elicited on cross-examination. Christ v. State, 480 ... S.W.2d 394 (Tex.Crim.App. 1972); Mason v. State, 472 ... S.W.2d 787 (Tex.Crim.App. 1971); Rogers v. State, ... 420 S.W.2d 714 (Tex.Crim.App. 1967). Even if counsel fails to ... ...
-
Sutton v. State
...from the indictment and no objection was offered by appellant. See Thomas v. State, Tex.Cr.App., 451 S.W.2d 907. In Mason v. State, Tex.Cr.App., 472 S.W.2d 787, complaint was made that the part of the judgment reciting dismissal of the firearms portion of the indictment did not follow the e......
-
Rasberry v. State
... ... A shot was fired as complainant was running away from the motel. The evidence is sufficient to constitute an assault. Mason v. State, Tex.Cr.App., ... 472 S.W.2d 787. This being so, the evidence is sufficient to support a conviction for robbery by assault with a firearm ... ...