Moore v. State

• Decision Date: 05 May 1971
• Docket Number: No. 43784,43784
• Citation: 466 S.W.2d 289
• Parties: Henry Demps MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 289

466 S.W.2d 289

Henry Demps MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 43784.

Court of Criminal Appeals of Texas.

May 5, 1971.

Harry H. Walsh, Roy E. Greenwood, Huntsville, for appellant.

Martin D. Eichelberger, Dist. Atty., Frank M. Fitzpatrick, Jr., Kenneth H. Crow, James R. Barlow and Walter D. Ketler, Asst. Dist. Attys., Waco, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an out-of-time appeal from a conviction for robbery by assault.

The indictment was returned on December 7, 1967 charging the appellant with the robbery of George Gaines on July 21, 1967. The indictment alleged (for enhancement purposes) that the appellant had been convicted of a 'felony less than capital and one of like character as alleged against him in the first paragraph hereof, to-wit: Robbery by Assault.'

The case came to trial in the 54th District Court of McLennan County on September 30, 1968. The verdict of guilty was returned by the jury on October 1, 1968. The appellant elected to have his punishment assessed by the court and stipulated he was one and the same person who had been convicted of the offense of robbery by assault as alleged in the second paragraph of the indictment. The court thereupon entered its judgment of guilty of robbery by assault and pronounced punishment at the mandatory life imprisonment.

Rollin Khoury was appointed as the appellant's attorney on appeal on October 1, 1968. Khoury had also been the appellant's attorney at trial.

The sentence was pronounced on February 10, 1969. The order recited a sentence of life for the offense of 'Robbery by Firearms, enhanced.'

On April 10, 1969, the appellant filed his application for writ of habeas corpus with the trial court, and on August 31, the McLennan County district attorney filed an application for a bench warrant, which was granted by the court. On September 4, 1969, Walter Smith was appointed to represent the appellant in the writ proceedings.

The hearing was held on September 19, 1969. The court found that the appellant had been denied the right to perfect his appeal and granted this out-of-time appeal.

On March 9, 1970, Walter Smith was appointed to represent appellant on appeal. On July 23, 1970, Smith filed a motion to withdraw from the case, citing his opinion that any appeal would be frivolous and without merit, with exception that the sentence should be reformed to read 'Robbery by Assault, enhanced,' instead of 'Robbery by Firearms, enhanced.' At that time, Smith filed a brief with the court alleging two grounds of error; first, that the sentence was void, and second, that the fruit of an illegal search was admitted into evidence. On September 3, 1970, the trial court granted Smith's motion to withdraw. ¹

Then, on October 12, 1970, over two years after the original trial, Roy Greenwood, staff counsel for inmates, Texas Department of Corrections, filed with the court a motion to extend his time to file an appellant's brief and a motion for production of the record on appeal and a statement of facts, which was denied. This Court, however, granted the appellant's motion to file a supplemental brief.

The two briefs, together, present three grounds of error, which are: (1) The court erroneously recited in the sentence that the conviction was for robbery with firearms, enhanced; (2) Incriminating evidence was admitted at trial which was obtained from an illegal search and seizure; and (3) That the appellant was subjected to an illegal pre-trial line-up.

After the hearing on the writ, the court, in his findings of fact and conclusions of law, found that the defective sentence was caused by a typographical error and should be corrected. Art. 44.24, Vernon's Ann.C.C.P., gives this Court the authority to 'reform and correct the judgment.' Here, the judgment recited the correct offense, but the sentence was incorrect due to a typographical error. In order to comply with the terms of the judgment, the sentence is reformed to read, 'it is the order of the court that the Defendant, Henry Demps Moore, who has been adjudged guilty of the offense of Robbery by Assault, enhanced.' See: Ong v. State, Tex.Cr.App., 397 S.W.2d 234; Binder v. State, Tex.Cr.App., 253 S.W.2d 433.

Appellant's first ground of error is overruled.

Next, the appellant complains of an illegal search and seizure.

George Gaines testified that on July 21, 1967, he was manager of the 7--11 Store on Elm Street in east Waco. At 5 or 5:30 in the afternoon, the appellant entered the store with Allen Moore. After walking arould the store, they both pulled pistols and the appellant told him, 'Yeah. I want all the money taken out of the cash register and put in a paper bag.' The appellant threatened to 'blow your damn head off' and Gaines put about $190.00 in the bag. They also ordered Gaines to give them the $6.00 from his wallet. They pulled out the cash register drawer to see if there was any more money and one of them said, 'If there's any more money in there I'm going to kill you anyway.' They then ordered Gaines and Anthony Williams and several other persons to lie on the floor behind the counter. Both Allen Moore and the appellant were wearing big straw Panama hats and they drove of in an Oldsmobile. Gaines identified State's Exhibit One as the pistol used by Allen Moore and State's Exhibit Two as the pistol used by the appellant. He identified State's Exhibits Three and Four as cans of Spam taken from the store by the two robbers, and he identified Exhibits Six and Seven as packages of Pall Mall cigarettes taken from his store.

Anthony Williams was employed at the 7--11 Store on the day in question. He testified that the appellant came to the cash register and demanded all of the money. There were a few customers in the store at the time. Both the appellant and Allen Moore pulled guns. They put the money in the sacks, and the robbers then took $5 from his wallet. The robbers then ordered them and the other people to lie down on the floor. He positively identified the appellant as one of the robbers and identified State's Exhibit Two as appellant's pistol and Exhibit One as Allen Moore's pistol.

Albert Cecil Young and Leonard Chalk were customers in the store, were both robbed at gunpoint, and were both ordered to lie down behind the counter. They both identified the appellant as one of the robbers and Young...