Thrash v. State, 46773

• Decision Date: 07 November 1973
• Docket Number: No. 46773,46773
• Citation: 500 S.W.2d 834
• Parties: Roy Olga THRASH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 834

500 S.W.2d 834

Roy Olga THRASH, Appellant, v. The STATE of Texas, Appellee.

No. 46773.

Court of Criminal Appeals of Texas.

Nov. 7, 1973.

Preston DeShazo, Dallas, for appellant.

Henry Wade, Dist. Atty., John E. Rapier, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is an appeal from a conviction of robbery, wherein the punishment, enhanced under the provisions of Article 62, Vernon's Ann.P.C., was assessed at life.

There is no contention of insufficiency of the evidence to support the conviction.

The evidence reflects that at about 7:00 P.M. on May 31, 1972, Adona Luzby, a cashier at a 7--11 store in Dallas, was robbed of approximately $230.00 while on duty in the store. Several fellow employees of the store, and one customer, made positive identification of appellant as the robber. The appellant did not testify.

Appellant in his first ground alleges that the court erred in allowing in evidence, over the objection of hearsay, a telephone conversation between appellant's father and the complaining witness Mrs. Adona Luzby, in which the father told her that his son, appellant, was the man who had robbed her.

After the State had rested, the defense placed Roy Thrash, father of appellant, on the witness stand. He testified that he and appellant were together at the Lamar Club in Dallas 'shooting pool' and drinking beer from 3:30 P.M. until 7:00 or 7:10 P.M., on the day in question, at which time appellant left to go to the Piedmont Apartments where he lived. This was about a 30 minute drive. The complainant and other State witnesses had previously testified that the robbery occurred around 7:00 o'clock P.M. An officer who was called to the scene testified he received his initial radio call to the robbery between 7:00 and 7:15 P.M.

On cross-examination, the State asked the witness whether he had a telephone conversation with Mrs. Adona Luzby ¹ several hours after the robbery on the night of May 31, 1972. He answered in the negative. Over the objection of hearsay by appellant, the State was permitted to question the witness as follows:

'Q And you don't recall, then, having a conversation with Adona Luzby telling her that you heard that your son--

'MR. DeSHAZO: Judge, I object to this. He asked him the question and he denied it and the prosecutor is bound by his answer on this.

'THE COURT: Overruled.

'MR. DESHAZO: Please note our exception.

'Q (By Mr. Banks) ² You don't recall saying, 'Adona, I've heard you've been robbed. Did my son hurt you or threaten you? It was my boy. He's a bad boy, but I want to stand up for the girl. She is not guilty of anything'?

'A No, I never said that.

'Q You never said that?

'A Why no, I never said nothing like that.'

Thereafter, the State recalled Adona Luzby, who testified over the objection of hearsay, that at about midnight of the day of the robbery, she received a telephone call from Roy Thrash, Sr., father of appellant, in which he asked whether she was hurt or threatened in the robbery, and told her that his son was the robber. He had previously testified that he had only one son.

This testimony was properly admitted by the court since it was inconsistent with and contradictory to the alibi testimony given by the witness on direct examination. The telephone conversation was not offered for the truth of the statements of the witness, but only to impeach the father's alibi testimony. The witness sought to convince the jury that his son could not have been the robber because he was with the witness at the time of the robbery. His statements to the complainant made a few hours after the robbery, that appellant committed the robbery, and expressing concern as to whether she had been hurt, were inconsistent with his alibi testimony given on direct examination.

It is a well established rule that where a proper predicate is laid, and a witness denies a prior inconsistent statement on a matter material to the case, the witness may be impeached by evidence of the inconsistent statement from other witnesses of the inconsistent statement. Rodgers v. State, Tex.Cr.App., 486 S.W.2d 794; Ratliff v. State, 165 Tex.Cr.R. 573, 309 S.W.2d 242; Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159; Hutson v. State, 164 Tex.Cr.R. 24, 296 S.W.2d 245; Austin v. State, 95 Tex.Cr.R. 417, 254 S.W. 795.

The proper predicate was laid by apprising the witness Thrash, father of appellant, of the time, place, the person to whom the alleged statement was made, and the circumstances of the alleged conversation. Wilson v. State, 161 Tex.Cr.R. 152, 275 S.W.2d 798; Marshall v. State, Tex.Cr.App., 384 S.W.2d 893.

Appellant's reliance on Corley v. State, 160 Tex.Cr.R. 504, 272 S.W.2d 354, is misplaced. There, a defense witness was cross-examined on a matter not inconsistent with any of the witness' testimony on direct. The witness denied having made certain statements about which he was cross-examined. The State was then permitted to introduce hearsay evidence of prior statements by the...