Roberson v. State, 48644

• Decision Date: 17 July 1974
• Docket Number: No. 48644,48644
• Citation: 513 S.W.2d 572
• Parties: Donald Ray ROBERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 572

513 S.W.2d 572

Donald Ray ROBERSON, Appellant, v. The STATE of Texas, Appellee.

No. 48644.

Court of Criminal Appeals of Texas.

July 17, 1974.

Rehearing Denied Sept. 24, 1974.

Joe B. Goodwin, Beaumont (court-appointed), for appellant.

Tom Hanna, Dist. Atty., John R. DeWitt, Asst. Dist. Atty., Beaumont, and Jim Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is robbery by assault; the punishment, twenty years.

The evidence reflects that Mary Whitaker, the manager of the M & M Package Store in Beaumont, was robbed by two Negro males wearing stockings over their heads on August 7, 1972. During the course of the robbery, a customer, Mr. Stanford, entered the store, and after the robbers demanded his money, slumped to the floor and died of an apparent heart attack. The testimony reflects a second customer, Mr. Laudig, ¹ entered the store, and his billfold was taken after he was ordered to lie on the floor.

The robbers fled in a blue and white Chevrolet. Appellant was arrested in Orange as he walked along the street. At the time of his arrest, appellant had a pistol and a tear gas gun in his pockets.

The evidence reflects that five persons had been driving around in a blue and white Chevrolet for some time before the robbery. It is uncontroverted that these five persons were the appellant, Robert Adams, Alonzo Brown, Nylie Victoria, and Dora Lartigue. The appellant and Adams were charged in one indictment for this robbery, and Brown, Victoria and Lartigue were charged in another indictment for this same robbery.

Appellant's grounds of error one, two, three and four arise out of his claim that the State suppressed evidence favorable to him. This contention arises out of the following circumstances. Appellant and Robert Adams were both indicted for the instant robbery. When their cases were called, Adams' lawyer moved for a severance, stating that he anticipated that Adams would plead guilty. This appellant's counsel moved that such plea be taken then, so that he might call Adams, who could, after having plead, testify for him without jeopardizing his plea bargaining position. At this juncture, appellant's codefendant Adams' counsel again stated that he anticipated that his defendant Adams would plead guilty. Outside the presence of the jury, appellant's counsel called Adams to the stand and attempted to question him about a conversation which he (appellant's counsel) had with Adams before the start of the trial. Adams was asked if, in fact, he had stated that he intended to plead guilty and to testify that appellant was not the one who robbed Mrs. Whitaker in the liquor store with him. Upon advice of counsel, Adams declined to answer that question on the ground that it might tend to incriminate him.

In addition, appellant's counsel testified that, during his conversation with Adams, Adams had told him that it was not the appellant, but one Alonzo Brown, who had been his companion in the robbery. This is the only testimony in this record to support appellant's claim that the trial court erred in refusing to accept Adams' plea of guilty prior to his calling his case for trial. During the trial appellant called Adams, and Adams claimed the Fifth Amendment and refused to testify as to whether it was this appellant or Alonzo Brown who was with him during the robbery.

In order to determine if the failure of the court to accept Adams' guilty plea so that his testimony would be available constitutes a denial of due process, a fuller understanding of the facts is necessary.

The controlling issue is whether or not the testimony of co-defendant Adams would have aided appellant's defense. Appellant did not testify. Therefore, an examination of the State's case against appellant is necessary in order to determine the importance of Adams' testimony.

The injured party, Mrs. Whitaker, testified that, even though the robbers wore stockings over their heads, their features were not so distorted that she was unable to identify appellant.

Dora Lartigue testified that she and the appellant and Alonzo Brown had met at a local cafe in Beaumont and began driving around in Alonzo Brown's blue and white Chevrolet. She testified that after several stops at various houses, as if looking for someone, the appellant left the car at one stop, went into a house, came out with Robert Adams and Nylie Victoria. The next stop was at Robert Adams' house, where Adams went inside and emerged with several shirts.

Shortly thereafter a stop was made at the M & M Package Store, where Victoria went inside and purchased a soft drink. Dora testified that after Victoria returned to the car they drove into an alley alongside the liquor store, where Adams and the appellant got out of the car, changed shirts and went inside. In a short time both came out and got back in the car, where the appellant changed shirts again. They then drove to the home of Arnett McMahon.

Miss McMahon testified that the five people in question arrived at her home and came in, uninvited, and expressed a desire to stay until dark. She testified that the appellant came in and stated that he wanted to use her bathroom so that he could change clothes. After he allegedly changed clothes, appellant and the three other men went into one of the bedrooms. Miss McMahon testified that she was frightened by the activity and looked into the bedroom. There she saw pistols on the beds and money scattered all over the beds and floor. She testified that before they left she heard Robert Adams state, 'I hope the woman (Mrs. Whitaker) didn't see my face. She is going to call the cops.' Before the five left, Victoria gave Miss McMahon a diamond ring. She later turned this ring over to the police. Mrs. Whitaker identified the ring during trial, testifying that it belonged to her and had been taken from her during the robbery.

Detective Tatum of the Beaumont Police Department testified that a palm print found on the counter in the liquor store matched appellant's hand print. Earlier testimony revealed that one of the robbers had placed his hand on the counter as he leaped over the counter during the robbery.

Alonzo Brown, called by appellant, testified to substantially the same facts as Dora Lartigue had testified to, except that on cross examination he refused to answer when asked who got out of the car with appellant, and he stated that he did not know who was with Adams when he went inside the liquor store. Brown also denied that he gave the appellant the pistol and tear gas gun and told him to get rid of them.

Officer Lewis of the Orange Police Department testified that when appellant was arrested he had a pistol and tear gas gun on his person.

Testimony from Mr. Stanford's employer reflects that he purchased a tear gas gun for Standford which Standford carried with him when he was making his...