Campbell v. State

571 S.W.2d 161, 1978 Tex. Crim. App. LEXIS 1214

• Court: Court of Criminal Appeals of Texas
• Decided: July 19, 1978
• Docket: 53586
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at nine years.

Appellant contends the trial court erroneously refused to charge the jury on the lesser included offense of theft. The issue was preserved by proper objection and the court’s ruling. The State and appellant agree that the victim testified to facts showing aggravated robbery and that appellant testified to facts showing theft. The issue upon which this appeal turns is whether theft is a lesser included offense of aggravated robbery in this ease.

Article 37.09(1), V.A.C.C.P., provides:

“An offense is a lesser included offense if:

“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; . . . ”

In applying this provision in Hazel v. State, Tex.Cr.App., 534 S.W.2d 698, the Court wrote:

“. . . the proof that appellant’s pistol was on the floorboard of the automobile established both that he carried it ‘on or about his person’ and that he ‘possessed’ it. Since the two are provable by the same facts, the provisions of Article 37.09, Vernon’s Ann.C.C.P., are satisfied.

“The same reasoning applies to the last remaining distinction between the two offenses. The offense charged, under V.T.C.A. Penal Code, Sec. 46.05, involved possession of a ‘firearm, namely a pistol,’ while V.T.C.A. Penal Code, Sec. 46.02, speaks of possession of ‘a handgun, illegal knife, or club.’ The definition of ‘handgun’ in V.T.C.A. Penal Code, Sec. 46.01, is ‘any firearm that is designed, made, or adapted to be fired with one hand.’ (Emphasis Supplied) Again, it is evident that the lesser offense and the offense charged are capable of proof by the same fact that appellant had in his automobile a .38 caliber revolver.” (Emphasis added.)

In Hazel v. State, supra, the defendant’s conviction for the lesser included offense was held proper on the basis of the above quoted analysis of whether Art. 37.09, supra, applied. That same analysis which upheld the conviction in Hazel, applied to the case at bar, requires reversal.

The State in its brief confuses the statutory elements of the definition of an offense with the evidentiary facts required to prove the offense charged. An indictment must charge acts constituting an offense. The facts here charged included the statutory element “in the course of committing theft.” Although under its statutory definition this element may be proven by one of several alternative means, not all of which require proof of a completed theft, the offense charged here, as shown by the State’s evidence, did rest on proof of a completed theft. The State’s version of the events and appellant’s version differed on only one material point: whether the theft was accompanied by acts constituting aggravated robbery. Appellant testified only a theft was committed; the State also relies on proof of the theft, and such additional facts as raise the crime to aggravated robbery. The theft was without question proven within the facts relied on by the State to make its case of aggravated robbery. Theft was a lesser included offense of aggravated robbery on the facts here.

The issue is not whether the primary offense is capable of proof on some theory that would not show theft. The issue is whether the State’s case as presented to prove the offense charged included proof of theft. The record shows theft was included in the proof of the State’s case, and therefore appellant was entitled, on the basis of his testimony, to submission of the lesser included offense of theft. The trial court’s adverse ruling on his objection to the charge was reversible error.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.