Morris v. State

• Citation: 411 S.W.2d 730
• Decision Date: 25 January 1967
• Docket Number: No. 40024,40024
• Parties: Willie Ross MORRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 730

411 S.W.2d 730

Willie Ross MORRIS, Appellant, v. The STATE of Texas, Appellee.

No. 40024.

Court of Criminal Appeals of Texas.

Jan. 25, 1967.

Rehearing Denied March 8, 1967.

Herbert Landau, James H. Martin, Dallas, for appellant.

Henry Wade, Dist. Atty., Robert H. Stinson, Jr., Scott Bradley and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Robbery by Assault; the punishment, fifteen years confinement in the Texas Department of Corrections. The case was tried on January 12, 1966.

The complaining witness, Richard Mankins, was at the time of the offense a sixteen year old high school student who worked as a part-time employee at the Holiday Cleaners located in the Preston Forest Shopping Center in the city of Dallas. Mankins testified that shortly before 9:00 p.m. on Friday, October 1, 1965, the appellant entered the business establishment where he was employed. Mankins testified that after being unable to find any cleaning listed under the name given by the appellant, the appellant held a gun on him and told him to 'put the money of the register in a brown paper sack.' Mankins opened one drawer and emptied the money into the sack, but neither he nor the appellant was able to open the second drawer. Mankins testified he had the care, custody and control of the premises and all property located therein and the appellant took approximately $125.00 in cash without his consent or permission, and at such time he was in fear of his life or bodily injury. He testified the appellant upon leaving told him (Mankins) 'not to follow him.'

The police arrived at 9:00 p.m. and were given a description of the robber. The following Monday Mankins was able to identify the appellant from among six or eight pictures shown him by the police. Later that evening he again identified the appellant from a police line-up of five men, all of whom were of approximately the same size, build and age.

While on the stand, Mankins testified the appellant was in the cleaning establishment for approximately five minutes and that he was watching the appellant's face most of that time and that he was 'positive' in his identification.

The appellant testified that on the evening of October 1st and at the time of the robbery he was at various other places. His alibi testimony was corroborated in part by several other persons. None of these witnesses, however, could corroborate the appellant's testimony that for fifteen or twenty minutes and during a period of time coinciding with the time of the robbery that he had gone alone to a lounge known as 'The Gusher' for the purpose of engaging in a game of pool.

There was other testimony that the appellant had once been a manager of the Holiday Cleaners, but at the time of the robbery was unemployed.

The appellant complains that the trial court erred in not instructing a verdict of 'not guilty' when the State rested its case in chief and again when both sides closed. He contends that the overwhelming weight of the credible testimony as to appellant's alibi renders doubtful the testimony of the lone identifying witness, and the evidence is insufficient to sustain the conviction of the appellant. In view of the evidence, despite the testimony as to the appellant's alibi, the Court did not err in overruling the motions for instructed verdict. The jurors are the exclusive judges of the credibility of the witnesses and the weight of the testimony. Article 38.04, Vernon's Ann.C.C.P. They chose to believe the State's version of the case, and the evidence is sufficient to sustain their verdict. Except where corroboration is required by law, the fact that a single witness for the State is contradicted by a greater number of witnesses for the appellant does not alter the above rule. Hutchins v. State, 172 Tex.Cr.R. 525, 360 S.W.2d 534; see 24 Tex.Juris.2d 378, Sec. 715, and cases there cited.

The appellant next contends that the court erred in permitting in evidence over the objection of the appellant statements by Richard Mankins that he (Mankins) examined various photos. The appellant cites no authorities for his contention, and he has not briefed the same. If is not clear whether he has reference to the photos Mankins testified he saw in attempting to identify the robber or to State's Exhibit No. One (showing the interior of the cleaning establishment). The record reflects that to neither the introduction of State's Exhibit No. One or to testimony about the photos used for identification purposes did appellant offer any objection. No error is presented. McClinton v. State, 170 Tex.Cr.R. 141, 338 S.W.2d 715.

The appellant further claims that the Court committed reversible error in permitting the District Attorney to place in evidence and argue before the jury that a police officer 'received a call' from an informer who stated that the appellant had committed the robbery.

The record reflects that without recounting the conversation or mentioning appellant in connection therewith, Officer Atherton testified that he had a conversation with someone concerning the Holiday Cleaners robbery and related what action he took thereafter. To such testimony there was no objection.

Even if objection had been interposed the testimony of the officer was admissible. Woolsey v. State, Tex.Cr.App., 376 S.W.2d 572; Cameron v. State, 171 Tex.Cr.R. 224, 346 S.W.2d 845; Willman v. State, 92 Tex.Cr.R. 77, 242 S.W. 746; Johnson v. State, Tex.Cr.App., 379 S.W.2d 329, 333.

In Johnson v. State, supra, this Court in holding similar testimony admissible, said:

'With reference to the testimony of the witness Canfield, the record shows that the officer was permitted to testify that he had received a radio report of the robbery and description of a certain automobile, but he did not relate the contents of the report.'

Appellant did object to the prosecutor's argument relating to Officer Atherton's testimony, but the same appears to be a reasonable deduction from the evidence and presents no error. Further, this ground of error as to jury argument was not raised in the trial court, and is not such an error that this Court would be required to review under Article 40.09, Section 13, V.A.C.C.P.

We are further asked to reverse this conviction for the failure of the trial judge to order the court reporter to take the complete voir dire examination of the jury panel in accordance with the provisions of Article 40.09, Sec. 4, V.A.C.C.P. This is by far the most serious contention made by the appellant.

Section 4 of Article 40.09, V.A.C.C.P., reads as follows:

'At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination, objections to the court's charge, and final arguments. He is not entitled to any fee in addition to his salary for taking these notes. A transcription of the reporter's notes when certified to by him and included in the record shall establish the occurrence and existence of all testimony, argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof of the occurrence or existence of same...