Antunez v. State

647 S.W.2d 649

• Court: Court of Criminal Appeals of Texas
• Decided: March 30, 1983
• Docket: 63725
• Status: Published

Opinions

OPINION

CLINTON, Judge.

Appellant was charged by indictment with the offense of aggravated robbery, V.A.T.S. Penal Code, § 29.03(a)(2), and was found by a jury to be guilty of the lesser included offense of robbery. Section 29.02, supra. Punishment, enhanced by a prior conviction, was assessed at life imprisonment. Section 12.42(b), supra. At the outset we confront unassigned fundamental error in the jury charge on guilt or innocence, which we consider in the interest of justice. Article 40.09, § 13, V.A.C.C.P.

The court instructed the jury in pertinent part as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 6th day of March, 1979, in El Paso County, Texas, the defendant, EDUARDO GARCIA ANTUNEZ, did then and there unlawfully while in the course of committing theft and with intent to obtain property of ROBERT UR-RUTIA, to-wit: American Currency, without the effective consent of the said ROBERT URRUTIA, with intent to deprive the said ROBERT URRUTIA of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury, intentionally and knowingly threaten and place ROBERT URRUTIA in fear of imminent bodily injury and death, then you will find the defendant GUILTY of aggravated robbery as charged in the indictment (Verdict Form ‘B’).

If you find from the evidence beyond a reasonable doubt that the defendant, EDUARDO GARCIA ANTUNEZ, committed the offense of robbery as herein defined, but you have a reasonable doubt as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery, and not of aggravated robbery (Verdict Form ‘B — 1’).”

The court’s charge, rather than merely stating abstract propositions of law and general principles contained in the statutes, must clearly apply the law to the very facts of the case. Williams v. State, 622 S.W.2d 578 (Tex.Cr.App.1981). In the present case the charge contained certain abstract principles governing the law of robbery but did not apply those principles to the specific facts of this case. The charge left the jury to speculate about which specific actions on appellant’s part, if believed true beyond a reasonable doubt under the evidence of this case, would constitute the offense of robbery. For that reason the judgment must be reversed and the cause remanded.

ONION, ?.J., and W.C. DAVIS, McCOR-MICK and CAMPBELL, JJ., dissent.