Nichols v. State, 48633

• Decision Date: 10 July 1974
• Docket Number: No. 48633,48633
• Citation: 511 S.W.2d 269
• Parties: Rush Orvel NICHOLS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 269

511 S.W.2d 269

Rush Orvel NICHOLS, Appellant, v. The STATE of Texas, Appellee.

No. 48633.

Court of Criminal Appeals of Texas.

July 10, 1974.

Britt Thurman, Abilene, for appellant.

Edward R. Paynter, Dist. Atty., Abilene, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Justice.

The appellant was convicted of the offense of robbery. Punishment, enhanced under Art. 62, Vernon's Ann.P.C., was assessed at life imprisonment. The sufficiency of the evidence is not challenged.

Appellant's brief was not filed with the trial court in a timely manner; however, his contentions will be considered in the interest of justice. See Art. 40.09, Secs. 9 and 13, Vernon's Ann.C.C.P.

Appellant first contends that the trial court erred in admitting a prior conviction of his from the State of Oklahoma. He urges that the papers relating to the conviction do not include a 'waiver of examining trial' required by the Oklahoma constitution and that, absent this, the conviction is void.

However, it appears from the evidence that appellant made no effort to show that he was not, in fact, given an examining trial. No bills of exception are contained in the record. Nothing is presented for review. See Hollis v. State, 509 S.W.2d 372 (Tex.Cr.App., delivered May 15, 1974); and Tristan v. State, 510 S.W.2d 329 (Tex.Cr.App., delivered June 12, 1974).

Appellant next complains of the admission into evidence of a sawed-off shotgun, taken at the time of his arrest, which he contends showed an extraneous offense.

Assuming that the gun had been shown to be a prohibited weapon, so as to constitute an extraneous offense, its admission would nevertheless have been proper as res gestae of the arrest. See Jones v. State, 458 S.W.2d 654 (Tex.Cr.App.1970); and Jones v. State, 471 S.W.2d 413 (Tex.Cr.App.1971).

Appellant's third complaint relates to the prosecutor's final argument at the guilt-innocence stage, wherein appellant was compared to 'marauders (sic) in the night with guns.' Appellant's objection was overruled.

The facts involve a robbery of a motel committed at gun point at 11:20 in the evening. The victim was bound and gagged and his wallet, watch and television as well as money belonging to the motel were taken. The argument was a logical deduction from the evidence.

Appellant's fourth complaint relates to the admission of a warranty card bearing the serial number of the stolen television. He urges that the document was hearsay. The television itself was admitted and was identified by the victim without objection. The subsequent admission of the warranty, if error, was harmless error. See Haynes v. State, 482 S.W.2d 191 (Tex.Cr.App.1972) and Brown v. State, 477 S.W.2d 617 (Tex.Cr.App. 1972).

Appellant's fifth and sixth contentions relate to the pretrial identification of appellant by the victim. The identification occurred at a 'one-on-one' confrontation in the appellant's jail cell only minutes after his arrest. The appellant was without counsel at the time; however, no formal charges had been filed. Therefore, the absence of counsel was not a violation of appellant's constitutional rights. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; Lane v. State, 506 S.W.2d 212 (Tex.Cr.App.1974).

As to the issue of the suggestiveness of the one-on-one confrontation, we have often urged that such a procedure should be avoided. In the instant case, however, the evidence shows beyond reasonable doubt that the victim's identification was based on seeing the appellant at the time of the offense. The witness observed introduction in evidence any evidence or well-lighted place, the identification occurred within one hour of the robbery, and the witness testified that his in-court identification of the appellant was based upon his observations at the time of the robbery. The court's finding that the identification was admissible was justified.

Appellant's last ground of error urges that 'The Court erred in allowing introductioin in evidence any evidence or item seized as a result of the arrest and subsequent search of Appellant and the automobile he was driving.' Following this general assignment of error, there is a description of the arrest, and then a lengthy quotation...