Thomas v. State, 41962

• Decision Date: 11 February 1970
• Docket Number: No. 41962,41962
• Citation: 451 S.W.2d 907
• Parties: Walter THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 907

451 S.W.2d 907

Walter THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 41962.

Court of Criminal Appeals of Texas.

Feb. 11, 1970.

Stewart Frazier, Dallas, for appellant.

Henry Wade, Dist. Atty., Malcolm Dade, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for robbery by assault; the punishment, ninety-nine years.

This is a companion case with Thornton v. State, 451 S.W.2d 898 and Lampkin v. State, 451 S.W.2d 911.

In the first ground of error, appellant contends that reversible error was committed when he was brought before the jury panel in white overalls.

The record reflects that appellant appeared before the jury panel for approximately thirty minutes during the voir dire examination in prison overalls. He preferred to wear the jail clothing, because he thought his regular clothes were too dirty; the court insisted that appellant wear street clothes, and he did so during the remainder of the voir dire examination and during the trial.

There is no showing of any injury or prejudice to appellant. In the absence of such showing, no reversible error is presented. Wilkinson v. State, Tex.Cr.App., 423 S.W.2d 311, and Xanthull v. State, Tex.Cr.App., 403 S.W.2d 807.

Appellant's second, fifth, sixth, seventh, eleventh and thirteenth grounds of error pertaining to severance, the lineup, the introduction of testimony seized without a search warrant and the remark of the prosecuting attorney were overruled in Thornton v. State, supra.

All of these grounds of error are overruled.

In addition to the motion for severance in the second ground of error, appellant contends that his attorney did not have time to prepare for trial.

The record reflects that counsel was appointed to represent appellant on February 29, 1968, and the trial started April 17, 1968. Appellant's counsel had more than the ten days allowed under Article 26.04, Vernon's Ann.C.C.P., to prepare for trial. No prejudice is shown the appellant. This contention is overruled.

In the third ground of error, it is contended that the trial court erred in granting the State's motion to strike from the indictment the words 'and then and there, by using and exhibiting a firearm, to wit: a gun.' It is contended that this is a matter of substance under Article 28.10, V.A.C.C.P., and cannot be amended.

The court did permit the State to strike the firearm part of the indictment. No objection was made to the action of the court. In Ex parte Layman, 140 Tex.Cr.R. 531, 146 S.W.2d 405, this Court held that where an indictment charged ordinary robbery and then averred the use of a firearm, the State could abandon the charge of robbery with a firearm, and a conviction for ordinary robbery would be valid notwithstanding evidence may have shown that in fact a firearm was used. See Yeagin v. State, Tex.Cr.App., 400 S.W.2d 914. No error is shown. The third ground of error is overruled.

In the fourth ground of error, appellant contends that the indictment does not allege by what means or method an assault was made upon Thomas E. Johnson, or what means was used to make him fearful of his life or bodily injury, and that the indictment was confusing and repugnant and did not set forth in plain and intelligible words and in direct and certain and positive manner the elements of the offense charged.

An indictment in substantially the same form was approved by this Court in Hunter v. State, 119 Tex.Cr.R. 558, 45 S.W.2d 969, and in Arguijo v. State, 142 Tex.Cr.R. 467, 154 S.W.2d 656. See 5 Branch's Ann.P.C.2d, Sec. 2566. The indictment is sufficient; the fourth ground of error is overruled.

In the eighth ground of error, it is contended that the trial court erred in refusing to strike the testimony of Gerald Lamb because he had previously stated that he thought that there were four assailants when he and Johnson were awakened that night. He testified that there were only three assailants. Other instances which appellant considered to be inconsistencies were pointed out to the court.

The jury passes upon the credibility of the witnesses, the weight to be given their testimony, and is the exclusive judge of the facts proved. Article 38.04, V.A.C.C.P. In Tice v. State, Tex.Cr.App., 425 S.W.2d 824, this Court held the fact that an injured party had made prior inconsistent statements did not destroy his testimony given at the trial, but only affected the weight to be given his testimony and his credibility as a witness. See Randolph v. State, 163 Tex.Cr.R. 156, 289 S.W.2d 772. The court did not err in refusing to strike the testimony of the witness Lamb.

In the ninth ground of error, it is contended that error was committed when the State was permitted to ask leading questions....