Valenciano v. State, 48722
| Decision Date | 02 July 1974 |
| Docket Number | No. 48722,48722 |
| Parties | Alfonso Maldonado VALENCIANO, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Wanda Creamer, El Paso, for appellant.
Steve Simmons, Dist. Atty., Anita Ashton, Asst. Dist. Atty., El Paso, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of robbery by assault, with the punishment being assessed at fifteen (15) years in the penitentiary.
Appellant's sole contention on appeal is that the evidence is insufficient to support the verdict for the reason that the evidence admitted was insufficient to adequately corroborate the accomplice witness' testimony. See Art. 38.14, Vernon's Ann.C.C.P. Since the challenge is made to the sufficiency of the evidence, a narration of the facts will be necessary.
Isadore Wechter testified that he was the owner of the Wechter Wholesale Army Surplus Store in El Paso and that at approximately 5:00 p.m. on February 28, 1972, two Mexican-Americans entered his store, discussed the purchase of some shoes, and after seven or eight minutes of discussing a possible purchase they suddenly attacked him, beat him, stabbed him, and caused serious injury to his mouth, head, lungs, liver and legs. While Wechter was unconscious on the floor of the store, the robbers took his billfold containing some checks, identification cards and other various papers.
During the jury trial of this case on October 17, 1973, more than one and one-half years after the date of the offense, Wechter had difficulty in making a positive in-court identification of the appellant as one of the robbers. He described the suspects as both being Mexican-American, an older one with a moustache, and a younger one without a moustache. He described the moustachioed suspect as being 'vicious' and as the one who actually did the stabbing.
On several occasions, the complaining witness testified that he did not see the guilty party in the courtroom, and on other occasions stated, with reference to appellant's identity, Wechter further testified that it was 'possible' that the appellant was the guilty party and that 'maybe' he was the man. He stated that he wouldn't and 'I'm almost sure it's (sic) the fellow.'
Wechter also testified that approximately three to five weeks after the assault he was shown photographs by the investigating officers, and at that time he positively identified one of the photographs as being the moustachioed suspect who viciously attacked him. He testified that he signed the photograph on the back as being the suspect that he picked out.
Jerry Lattimer, a detective for the El Paso Police Department, testified that he made an investigation of this robbery and that sometime after the crime, while Wechter was in the hospital, he showed the complaining witness several photographs, one of which was picked out by Wechter as being the guilty party. Lattimer testified that te photograph chosen by the complaining witness was El Paso Police Department Photograph Number 105931, which he identified as being a photograph of the appellant. Officer Lattimer's testimony identifying the police department photo Number 105931 as the appellant was given without objection, and State's Exhibits 4, 5, 6, and 7 were admitted into evidence. 1
Robert Ontiveros testified that on the day of the crime he was working at an automotive shop near the complaining witness' store, that he found the complaining witness shortly after the beating, and called the police. Ontiveros further testified that he had noticed appellant and Perez on several occasions earlier in the afternoon in the vicinity of the store, and that the last time he saw them was about 2:30 on the afternoon of the robbery.
Carlos Perez, the accomplice witness, testified that on the morning of February 28, 1972, he and appellant had started drinking, and that they subsequently decided to go to the complaining witness' store to 'see that we could...
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