Younger v. State, 42932

• Decision Date: 17 June 1970
• Docket Number: No. 42932,42932
• Citation: 457 S.W.2d 67
• Parties: Linner Lee YOUNGER and William Lewis, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 67

457 S.W.2d 67

Linner Lee YOUNGER and William Lewis, Appellants, v. The STATE of Texas, Appellee.

No. 42932.

Court of Criminal Appeals of Texas.

June 17, 1970.

Rehearing Denied Aug. 21, 1970.

Tom Upchurch, Jr., Amarillo, for appellant.

Jerry R. Tucker, Dist. Atty., Dumas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The appellants were jointly indicted and tried for the offense of robbery by assault, and each was sentenced to twenty-five years in the Texas Department of Corrections. The motion for severance of James Hodge, who was jointly indicted along with the appellants, was granted.

Appellants' grounds of error numbers one, three, and six challenge the sufficiency of the evidence.

The testimony of David Broadwell reveals that on August 19, 1968 in Hereford, Broadwell was approached by two persons, one of whom he identified as the appellant, Linner Lee Younger. While testifying, Younger identified the other person as James Felton Hodge. As Broadwell parked his automobile near a bank, Hodge came up to ask him about an address. Younger at that time walked past, and Hodge asked Younger if he knew the location of the address. Broadwell, Younger and Hodge left in Broadwell's car to go to the 'east part of town.' About that time Hodge flashed a roll of money which he said was $12,000 that he had inherited from his grandfather in Mississippi and that he could not read or write and was afraid to put it in the bank. Broadwell then stated that he was a licensed security investor and offered to invest the money for him. At Hodge's suggestion to make him (Hodge) feel safe, Broadwell drew $12,000 from the bank to match the other money. Broadwell, Younger and Hodge at Hodge's request drove to the house of a preacher, the Reverend Allen, on Maple Street for Allen to verify that it was a legitimate deal. When they got to the house, Hodge stated he knew another preacher farther down the street, and at that time Broadwell 'got suspicious' and decided to get his money and go. The money had been rolled in a handkerchief and placed in the trunk of Broadwell's car which was then locked and Broadwell kept the key. While they were at the rear of the car, both Younger and Hodge grabbed Broadwell, and after a brief scuffle, they took the money away from Broadwell and ran away with it. In the scuffle, the backs of Broadwell's hands were skinned and were bleeding.

Ethel Daniel who lived at 400 Maple Street in Hereford, Texas testified that she saw the appellant, Lewis, in front of her house parked in a white Buick or Oldsmobile. Daniel could not remember the date but said it was in the summer.

Joseph Roddy testified on August 19, 1968 at 400 Maple Street in Hereford, Texas he saw three men, one of whom he identified as the appellant, Younger, standing at the back of a black car. While two of the men were pushing against one another, Younger went around to the right side of the car, got something out of the car, pulled down his hat, and ran, and another man 'tore out behind him.' The third man started after them, turned around and went back to his car where he pulled the trunk lid down, got in his car and took off behind them down Maple Street, and when he got to Highway 60, he went on towards Amarillo.

Reverend C. W. Allen, who lived at 400 Maple Street in Hereford, testified that on August 19, 1968 he saw Broadwell with two men in Broadwell's black Continental automobile in the area of his residence. They appeared to be in the car having a conversation and were there for around 15 minutes.

Deputy Sheriff Tucker testified that on August 19, 1968 David Broadwell told him that he had been robbed and gave him a description of the people Broadwell said robbed him. Broadwell was very upset and nervous and his hand was bleeding and blood was running on the floor and his other hand was bruised. Tucker further testified that under his supervision a general description of the car and the persons who committed the offense was broadcast by the dispatcher, and that he had received a description of the car involved from Ethel Daniel.

Walter L. Miller, a policeman in Amarillo, Texas testified that on August 19, 1968 he received a bulletin to watch for a 1963 or 1964 white Buick that was occupied by three colored males and was advised that a robbery had taken place at about 1:30 p.m. on August 19, 1968 and about 2:10 p.m. at the corner of Amarillo Boulevard and McMasters, he saw such a car. When he approached the car from the rear and exhibited his red light, the vehicle began accelerating and turned down an alley. The acceleration was to approximately 40 miles per hour down this alley where the speed limit was 15 miles per hour. The car turned out of the alley and turned down several streets finally stopping after it had traveled one block and Miller had used his siren. In his testimony Miller characterized the sequence of events in the stopping of the appellants as a 'chase.'

Miller further testified that when he stopped the appellants, he immediately arrested them, had them get out of the automobile and searched them for weapons. Two of the three occupants got out of the car readily, but the passenger in the right front seat had to be hold three times to get out, and he was observed bending forward as if to put something under the seat. After Miller had searched the passengers, he looked under the right front seat of the automobile where he found a large amount of money wrapped in a handkerchief. When Miller returned to the police station, he counted the money and found most of the bills were in denominations of $100.00 in packages of 10 with a total of 12 packages. In addition there was $350.00 in loose bills, three $100.00 bills and 50 $1.00 bills.

Appellant Lewis did not testify, but the appellant Younger testified that on the day in question he and Hodge had approached Broadwell looking for a 'pidgeon' and had showed him a roll which Younger told Broadwell contained $12,000 but it actually contained only $220.00. They then engaged Broadwell in a game of three card monte and then they got Broadwell to draw $12,000 out of the bank. The three wrapped the money in a handkerchief to put it in the trunk of Broadwell's car, but instead of the money going into the trunk, Younger substituted another white handkerchief filled with paper. They then rode over to Maple Street where Broadwell asked to see his money. Younger testified that at that time he walked off and drove to Amarillo and did not scuffle, assault, or touch Broadwell. Younger also testified that at this time Lewis was parked on Maple Street.

Younger further testified that he and Hodge had paid the appellant Lewis to drive them to Hereford, to wait for them and to drive them back and that Lewis knew nothing about what they were doing.

In its charge the court instructed the jury as to the law pertaining to principals.

The jury trying the case is authorized to accept or reject any or all the testimony of any witness. They may look to all the evidence in the case, that offered by the state as well as that offered by the appellant, in determining the facts and issues in the case. 24 Tex.Jur.2d 395, Sec. 725; Spears v. State, 103 Tex.Cr.R. 474, 281 S.W. 555; Lopez v. State, 172 Tex.Cr.R. 317, 356 S.W.2d 674; Wright v....