Rogers v. State, 45491--A

• Decision Date: 10 January 1973
• Docket Number: No. 45491--A,45491--A
• Citation: 488 S.W.2d 833
• Parties: Joshua ROGERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 833

488 S.W.2d 833

Joshua ROGERS, Appellant, v. The STATE of Texas, Appellee.

No. 45491--A.

Court of Criminal Appeals of Texas.

Jan. 10, 1973.

Russell M. Stanley, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Richard Hoffman, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This appeal is taken from a conviction for the offense of robbery by assault. Punishment was assessed at fifteen years' confinement.

Appellant alleges four grounds of error.

Testimony reveals that Jesse Hernandez was the owner of a combination liquor store and watch repair shop in Houston. The manager of the store was Luther Hicks. On December 8, 1970, a man entered the store while Hernandez was in the storeroom at the rear of the establishment. The man, identified as appellant, handed Hicks a five-dollar bill, and asked for a 'a bottle' and some orange juice. When Hicks returned with the merchandise, appellant confronted him with a sawed-off shotgun, took back the five dollars, and ordered Hicks to lie down on the floor. Shortly thereafter, Hernandez came toward the front of the store, and appellant forced him to open the cash register. Appellant took between $70 and $80 and fled. He was apprehended a short distance away.

One of appellant's complaints concerns his court-appointed counsel. Appellant argues that it was error for the trial court to refuse to relieve the courtappointed counsel, since appellant advised the court that he was 'dissatisfied' with this attorney. The record reflects that a hearing on this matter was held outside the presence of the jury. It was revealed that appellant's court-appointed counsel had been actively engaged in the practice of law for almost three years, and that his was primarily a criminal practice. A thorough reading of the record fails to substantiate appellant's allegation of inadequate counsel. Further, the Court is under no duty to search for counsel until it finds one who is agreeable to a defendant. See Boykin v. State, 487 S.W.2d 128 (Tex.Cr.App.1972); Perry v. State,464 S.W.2d 660, 664 (Tex.Cr.App.1971); Martin v. State, 460 S.W.2d 919 (Tex.Cr.App.1970); Washington v. State, 488 S.W.2d 445 (Tex.Cr.App.1972).

In two other grounds of error, appellant contends that the failure of the State to produce the monies recovered at the time of the arrest was highly prejudicial to appellant and denied him his right of confrontation and cross-examination. We note that only after extensive testimony by the two victims of the robbery, concerning the money taken, did defense counsel voice a similar objection at the trial level. That objection came too late to preserve any possible error on this point. Webb v. State, 480 S.W.2d 398 (Tex.Cr.App.1972); Sierra v. State, 482 S.W.2d 259 (Tex.Cr.App.1972); Crestfield v. State, 471 S.W.2d 50 (Tex.Cr.App.1971) cert. denied, 406 U.S. 917, 92 S.Ct. 1764, 32 L.Ed.2d 115 (1972); Salas v. State, 486 S.W.2d 956 (Tex.Cr.App....