Cleland v. State

575 S.W.2d 296, 1978 Tex. Crim. App. LEXIS 1108

• Court: Court of Criminal Appeals of Texas
• Decided: April 12, 1978
• Docket: 54100
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery. After a trial by jury, the trial judge assessed the appellant’s punishment at fifteen years’ confinement in the Texas Department of Corrections.

The record reflects that the appellant sprayed mace in the eyes of the manager of a service station in Houston and took money from the cash register in the station. The appellant was apprehended fleeing from the scene of the crime.

At the outset, we are confronted with fundamental error in the charge which dictates that we reverse the judgment.

V.T.C.A., Penal Code, Section 29.02(a) states:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:

“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

In the present case the indictment stated in pertinent part that on July 26, 1974, the appellant

“while in the course of committing theft of money owned by Stephanie Wolff, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the Complainant.”

It is clear that the indictment alleged that the appellant committed robbery under V.T.C.A., Penal Code, Section 29.02(a)(1), by alleging that the appellant intentionally and knowingly caused bodily injury to the complainant.

The pertinent portion of the trial judge’s charge stated:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 26th day of July, A.D. 1974, in Harris County, Texas, the defendant, David Travis Cleland, did, without the effective consent of Stephanie Wolff, the owner, take and exercise control over the corporeal personal property of Stephanie Wolff, to wit, money, from the possession of Stephanie Wolff, with intent then and there to deprive Stephanie Wolff of said money, and that the said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, then you will find the defendant guilty of robbery as charged in the indictment.

“Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”

It is clear that the charge authorized a conviction for robbery under V.T.C.A., Penal Code, Section 29.02(a)(1), if the jury found, among other things, that the appellant intentionally and knowingly caused bodily injury to Stephanie Wolff. However, it is equally clear that the charge also authorized a conviction for robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), if the jury found, among other things, that the appellant intentionally or knowingly threatened or placed Stephanie Wolff in fear of imminent bodily injury or death. Thus, the charge authorized the jury to convict the appellant on two theories when only one was alleged in the indictment.

In Robinson v. State, 553 S.W.2d 871 (Tex.Cr.App.1977), the indictment alleged that the defendant had committed robbery under V.T.C.A., Penal Code, Section 29.-02(a)(2) and further alleged that the robbery was aggravated under V.T.C.A., Penal Code, Section 29.03(a)(2). However, the charge in Robinson authorized the jury to convict the defendant under every conceivable theory under V.T.C.A., Penal Code, Sections 29.02(a) and 29.03(a). We there stated:

“While the charge authorized a conviction upon the theory alleged in the indictment, it also authorized a conviction upon every other conceivable theory under Sec. 29.02 and Sec. 29.03 which was not alleged in the indictment. We conclude that fundamental error is reflected and the conviction . . must be reversed.” Id. at 375.

See also Davis v. State, 557 S.W.2d 303 (Tex.Cr.App. 1977); Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App. 1976).

In the present case, the charge authorized the jury to convict the appellant on a theory not alleged in the indictment. This was fundamental error.

The judgment is reversed and the cause remanded.

VOLLERS, J., dissents.

Before the court en banc.