Moore v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: DOUGLAS
• Citation: Moore v. State, 531 S.W.2d 140 (Tex. Crim. App. 1976)
• Decision Date: 07 January 1976
• Docket Number: 50766,Nos. 50765,s. 50765
• Parties: Jake MOORE, Jr., Appellant, v. The STATE of Texas, Appellee. Kenneth Wayne GOODSON, Appellant, v. The STATE of Texas, Appellee.

Page 140

531 S.W.2d 140

Jake MOORE, Jr., Appellant, v. The STATE of Texas, Appellee.

Kenneth Wayne GOODSON, Appellant, v. The STATE of Texas, Appellee.

Nos. 50765, 50766.

Court of Criminal Appeals of Texas.

Jan. 7, 1976.

W. John Allison, Jr., on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., Edgar A. Mason, Robert Whaley and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

These are appeals from convictions for aggravated robbery under Sec. 29.03 of the Penal Code. The jury assessed punishment at 5 years in the Texas Department of Corrections for appellant Moore and 15 years in the Texas Department of Corrections for appellant Goodson.

The appellants were tried together for the same offense, each being individually represented by court appointed counsel. Both appellants are now represented by a single appointed counsel for this appeal. Both causes have been briefed together.

The complainant, Bernard Shaw, testified that on the morning of September 2, 1974, at approximately 3:00 a.m., he was driving on Bexar Street in Dallas County, when he was stopped by the appellant Kenneth Wayne Goodson in front of the T & P Cafe. Goodson offered the complainant a dollar to drive him to an address on Pinkston Street. The victim and Goodson had known each other for several years. After driving Goodson to a 'Chicken Shack' to get something to eat, the complainant reminded Goodson of a two dollar debt. Upon reaching the Pinkston Street address, Goodson departed the vehicle saying he would get the two dollars he owed Shaw from his mother. Shaw waited in the car, a 1972 Volkswagen which he had borrowed from his sister's common-law husband.

Shaw testified that when Goodson returned he placed a sawed-off shotgun against his neck and threatened in very vulgar terms to blow his head off. Shaw also testified that at this time Goodson appeared to be high on drugs; however, he could not say whether it was marihuana, heroin, or pills. He was however certain that Goodson was 'super doped up.'

Shaw then stated that he saw appellant Jake Moore, Jr. walk up to the car. Shaw stated he got out of the car and as he did so Jake Moore backed away. At this point Goodson struck Shaw across the face with the butt of the shotgun. The blow knocked Shaw to the ground. Shaw then tried to break away, but Goodson commanded him to stop 'or I'll blow your back out.'

At this point, appellant Moore was across the street. Goodson then ordered appellant Moore to 'keep your shit on him' which Shaw testified meant 'pistol' in ghetto slang. Shaw stated that he heard a sound which he thought was a revolver being cocked and the cylinder of a pistol rolling in response to Goodson's command. Shaw admitted that at no time did he ever see a pistol, but he believed that Moore had one on his person. Shaw stated that he was familiar with pistols from his experience in the military and on the streets of Dallas.

Goodson then ordered Moore to 'crank up this punk's car, man, because I'm fixing to kill him.' Goodson then asked Moore to light a cigarette for him and, as Goodson turned to Moore, Shaw testified that he was able to escape.

Shaw also testified that Goodson had taken his Accutron watch and two dollars in currency from him.

Shaw immediately reported the incident to the police and returned with them to the scene. The police, with Shaw still accompanying them, arrested Moore and a companion, in Shaw's Volkswagen, some distance from the scene about thirty minutes after the incident.

Appellant Goodson testified in his own defense. He stated that no robbery took place but that he feared Shaw because of his bad reputation for violence. Goodson contended that he and Shaw had only argued over a debt of Shaw's. Goodson admitted on direct examination that he had been in prison for theft after a probation revocation for the offense of aggravated assault. On cross-examination Goodson was reminded of two more cases of aggravated assault.

Appellant Moore testified that he knew a robbery was 'going down' but then corrected himself and said that it was just a mistake of speech. In general, Moore denied that a robbery took place but he stated that there was an argument between Shaw and Goodson about money and that Shaw ran away. Moore stated that he was trying to find the complainant to return his car when he was arrested.

The officer who arrested Moore stated that he found no weapons of any type in the vehicle or in Moore's possession.

Appellants' third ground of error is that the trial court erred in denying the specially requested charge on circumstantial evidence.

The record reflects that appellant Moore timely requested a charge on circumstantial evidence which the trial court denied. Appellant Goodson did not request a charge on circumstantial evidence and excepted to the charge on grounds not brought forward in this appeal.

The State in its indictments of both Moore and Goodson alleged that aggravated robbery was committed 'by using and exhibiting a deadly weapon, namely, a pistol.'

The State is bound by its allegations in the indictment and must prove them beyond a reasonable doubt. Butler v. State, 429 S.W.2d 497 (Tex.Cr.App.1968); Seiffert v. State, 501 S.W.2d 124 (Tex.Cr.App.1973). Therefore, the State was bound to prove beyond a reasonable doubt that the appellants robbed the complainant Shaw with a pistol. The proof of robbery with a sawed-off...