Smith v. State, 45257.
| Decision Date | 01 November 1972 |
| Docket Number | No. 45257.,45257. |
| Parties | Robert SMITH, with alias, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Rollin Khoury, Waco (Court appointed), for appellant.
Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the felony offense of shoplifting. Two prior convictions for felonies less than capital were alleged for enhancement under Article 63, Vernon's Ann.P.C. The plea of not guilty was entered. The punishment was assessed at life.
Complaint is made that the evidence is insufficient to support the conviction in that it was not shown the first prior conviction was final before the commission of the subsequent offense alleged for enhancement. He also complains that the court erred in refusing to strike unresponsive answers of a State's witness.
Thad Johnson testified that he was a security officer for several firms including Gibson's on Franklin Avenue in Waco. At approximately 10:15 p. m. and during a "midnight" sale at Gibson's shortly before Christmas he saw the appellant, Odessa Bibles and a woman he did not know enter the store. Johnson testified that Odessa was five feet two or three inches tall and weighed approximately three hundred pounds. He saw the three go to the men's department to a narrow aisle. Johnson then climbed upon a ladder in a storeroom some twelve feet away and observed Odessa take slacks from the racks and put them between her legs, which was a common way for shoplifters to work. The appellant was wearing a three-quarter length coat like "007" would wear and had on a beret. The appellant held up a shirt or something like it as though looking at it in the light. This shielded Odessa so that no one could see her. While doing this, he would hand Odessa a pair of slacks. The other woman companion held up clothing on the other side of the aisle and blocked the view from that end.
Later, the three went to the checkout stand together where Odessa paid for a few cents worth of items and went to the door. Johnson stopped them and asked Odessa about the merchandise she had between her legs. She did not reply. The appellant was quite indignant and used abusive language. Odessa had the keys to a car which was blocking one lane of traffic in an alley. Johnson told her that he knew she had the merchandise and wanted to talk to her about it. She got in the back seat and threw three pair of slacks and two sweaters from the back seat of the car and cursed Johnson and said, "Here is your merchandise."
About this time a highway patrolman arrived and placed the three under arrest.
Michael Trantham of the Waco police department testified that he received a call and went to Gibson's store. He arrested the appellant, Odessa Bibles and the other woman, Joester Minniefield. Johnson handed Trantham three pair of slacks and two sweaters. Trantham then saw trouser legs hanging below Odessa's dress. He then put her back in the car and saw two more pair of trousers in the car. The merchandise found at the car contained Gibson's tags which reflected the total retail price to be $70.04. No sales slips were found for these items.
Jack Adams testified that he was manager of Gibson's store in question and that the value of the six pair of pants and two sweaters was $70.04.
The proof showed that Gibson's was a retail business establishment.
We hold the evidence is sufficient for the jury to conclude the appellant to be guilty as a principal to the offense of felony shoplifting.
The next complaint of the appellant is: "There is no evidence in the record to prove the allegations in the indictment (on the point of enhancement) that succeeding convictions both in time of commission of the offense and the conviction therefor."
The indictment contains an allegation that on the 6th day of June, 1958, in the 142nd Judicial District Court of Midland County, Texas, in Cause No. 2347, the appellant was convicted for burglary and was placed on probation for five years and that on the 29th day of April, 1960, such probation was revoked and appellant was sentenced. There is an allegation that on the 28th day of April, 1965, in the District Court of Bell County in Cause No. 15665 that the appellant was convicted for burglary of a private residence at nighttime with intent to commit theft and was sentenced therefor in June of 1965.
When the trial judge asked appellant at the penalty stage of trial how he pled after prior convictions alleged for enhancement were read, he answered, "guilty."
When an accused pleads guilty to an indictment before a jury, he admits all the incriminating facts to establish his guilt. Peterson v. State, Tex.Cr.App., 439 S.W.2d 841; Rojas v. State, Tex.Cr.App., 404 S.W.2d 30. In the present case the incriminating facts were proved before the jury. His plea of "guilty" to allegations of the prior convictions which were properly alleged was the mere admission of the historical facts as alleged. We hold that such plea obviated the necessity of proving the enhancement allegations.
He relies upon Jones v. State, Tex.Cr. App., 422 S.W.2d 183, where it is written:
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