Booty v. StateBooty v. State
- Reporters:
- ,
- Before:
- Onion
OPINION
ONION, Judge.The offense is robbery by assault; the punishment assessed by the court after a verdict of guilty, 50 years’ confinemеnt in the Texas Department of Corrections.
O. J. Batson, manager of the Texas Motel in the City of Dallas, tеstified that at approximately 1 a. m. on November 18, 1968, the appellant and two women entered the motel office and demanded money; that the appellant struck him several times with a revolver and took $581.34 in money, a billfold and a number of credit cards including one from E. M. Kahn’s Department Store.
On Novembеr 20, 1968, the appellant appeared at E. M. Kahn’s with two women and was arrested when he attempted to purchase merchandise using Batson’s credit card. At the time of his arrest Batson’s other credit cаrds and a billfold were found in his possession.
Batson identified the appellant after his arrest in a police lineup.
The appellant called Sandra Wilson and Justine Garner who testified he bore a strong рhysical resemblance to one James Young. On cross-examination Justine Garner acknowledged а shoplifting conviction in New Mexico and a theft conviction in Louisiana.
Rubin Howard testified James Young was his roommate on November 18, 1968, *65and he had seen Young in possession of a billfold and that Young “did the robbery on Davis Street,” the “Texas Motel, or something”; that it would be easy to mistake the appellant for Young.
The appellant’s mother was called as an alibi witness but could not remember the exact date on which she had seen the appellant in relation to the date of his arrest. At one time she relatеd she had seen him at his grandmother’s when the other evidence showed he was already in jail.
Appellаnt’s brother, another alibi witness, had the appellant sick in bed in October rather than November when the offense occurred.
Appellant claimed, while testifying in his own behalf, that he had been mistaken for James Young who resembled him. He contended the two women he was with in the E. M. Kahn’s Department Store had possеssion of the billfold and the credit cards and the billfold was only lying beside him when he was arrested. He acknowledged prior convictions for felony theft and burglary.
Appellant’s first ground of error reads:
“It was error for the State’s attorney to refer to аppellant’s witness Rubin Howard as a homosexual during the State’s cross-examination and final argument and tо insinuate that the appellant and Rubin Howard had lived together during the State’s cross-examination of Rubin Howard.”
On cross-examination of the witness who had been referred to as “Mr. Howard” on direct examination, the record reflects the following:
“BY MR. CHAPMAN: (Prosecutor)
“Q. Is it Mrs. or Mr. Howard?
“MR. COIL: Your Honor, he can show, he can—
“MR. FITZGERALD: Are you making an objection?
“MR. COIL: He can show this man had a conviction to impeach him, but you can’t go into other things.
“THE COURT: I sustain the objection to the question.
“Q. Don’t they sometimes call you Ruby?
“A. Yes.
“MR. COIL: Your Honor, he’s going back into that same thing.
“THE COURT: Overrule your objection.
“Q. Don’t they call you Ruby?
“A. Yes, sir, they call me Ruby.
“THE COURT: Let’s settle down, gentlemen, and try this lawsuit.
“Q. You haven’t ever lived with Perry Booty, have you?
“A. Beg your pardon?
“Q. You haven’t ever lived with Perry Booty, have you?
“A. No, I haven’t.”
During the closing argument prosecutor Chapman argued, without objection:
“You heard a defense of mistaken idеntity concerning James Young and look at the parade of witnesses you saw, Sandra Wilson, Justine Garner, twiсe convicted thief and Ruby or Ruben Howard.
“Now you all know as adults what Ruben Howard is. You can see what he, she or it is, whatever you want to call it. All Howard could tell you is that he had lived with old James Young at one time back there in November sometime he had a wallet, * *
The appellant relies upon Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954. Brown, which involved a prosecution for a misdemeanor where the maximum punishment was assessed, can be distinguished since there direct questions were аsked of the *66witness as to whether or not he had engaged in homosexual acts with the defendant, and the quеstioning along this line persisted for some time. In the case at bar, no such questions were asked of the witnеss and he denied he had ever lived with the appellant.
There was no objection as to the complained of jury argument and nothing is presented for review.
While the insinuations, if such were intended by the prosеcutor, were not proper, we are unable to conclude that in light of the record that the error is reversible error.
Ground of error #1 is overruled.
Next, appellant urges error occurred in the State’s closing jury argument when thе prosecutor argued that appellant and his appointed counsel uttered perjured tеstimony and blasphemous prayers.
The record reflects Mr. Chapman made the following statement nеar the beginning of his argument:
“If Mr. Coil is at this moment uttering a prayer to our Lord, it is just about as blasphemous a prаyer as the perjured testimony that you heard come from this Defendant’s mouth.” (Emphasis supplied.)
The State concedes the argument was improper but points out that no objection was interposed аnd therefore the error is waived and nothing is presented for review. Van Bidder v. State, Tex.Cr.App., 371 S.W.2d 880; 12 Texas Digest, Criminal Law, Sec. 728.
We agree.
The appellant relies upon Dykes v. State, 168 Tex.Cr.R. 215, 325 S.W.2d 135, and Seay v. State, Tex.Cr.App., 395 S.W.2d 40, but in each of those cases objections were timely made.1
In light of the record, however, we again repeat what was said in Dykes v. State, supra:
“This court has often pointed out that counsel for the state should not permit himself, in his zeal or in the heat of a trial, to stoop tо abuse or vilification, which is not a substitute for legitimate argument.”
Finding no reversible error, the judgment is affirmed.
Notes
. In Dykes v. State, supra, the court held that an application of harmless error rule ‘to the complained of jury argument was precluded in view of the punishment in-flieted by the jury at the unitary trial. Here the punishment was assessed by the trial judge at the second stage of a bifurcated trial following the jury verdict.