Drake v. StateDrake v. State
- Reporters:
- ,
- Before:
- Woodley
OPINION
WOODLEY, Presiding Judge.The offense is robbery; the punishment, life.
Trial was before a jury on a plea of not guilty. The jury having found him guilty, appellant requested that the jury assess the punishment.
The sole ground of error set forth in appellant’s brief is:
“The Triаl Court erred in refusing to sustain the dеfendant’s objection to certain harmful and prejudiciаl testimony which was used by the Statе to Identify the defendant.”
The witnеss E. J. Carter, the person namеd in the indictment as having been robbed, positively identified appellant as the ■man who robbed him of $72.00 in the rest room at thе Brown Derby Cafe in Dallas about 1:30 A.M. on April 3, 1966.
The brief reflects thаt the ground of error relates to the following examination of state’s witness Robert Simmons, Special Policeman оn duty at the cafe.
“Q. All right, on the night оf April the 3rd, 1966, were you a spеcial policeman at the Brown Derby Cafe?
“A. I was.
“Q. All right, would you tеll us what, if anything, of an unusual nature occurred that evening?
“A. Mr. Cartеr came out of the restroom bleeding and I grabbed him and аsked him what happened and he said a man robbed him, knoсked him in the head.
“Q. Did he tell you how much money he robbed him of ?
“A. He did.
“Q. How much was that?
“A. He didn’t know prеcisely how much but he describеd a fifty dollar bill, a twenty and some ones, that’s what he told me.
A fifty and twenty and some ones? p
That’s right. >
All right, аnd then did he give you a descriрtion of the man ? p
“A. He did.
“Q. All right, do you sеe that man he described in this courtroom?
“MR. BRISTER: Object to that, Your Honor.
“WITNESS: Ido.
“MR. BRISTER: He’s going to identify this man on the description that was given to him two months ago.
“MR. CAPERTON: I’ll withdraw it.
“Q. Do you see the man in the courtroom today?
“A. I do.
“Q. Would you point him out for the jury, please ?
“A. Sitting right on the end over there.
*186“Q. All right, at the time that he described him did he lоok like he does today ?
“A. Well, no, during the time he was wearing a beard then.
“Q. All right, this Defendant was wearing a beard?
“A. He was.”
Thе question to which appellant objected without stating any ground therefor was withdrawn.
There was no motion to have the jury instructed to disregard the answеr and no ruling by the court is reflected. Bradley v. State, Tex.Cr.App., 409 S.W.2d 863.
The testimony of the police officer which follows the answer to the question which was withdrawn was introduced without objection. Huggins v. State, 163 Tex.Cr.R. 522, 293 S.W.2d 779.
The judgment is affirmed.