Davis v. McKaskle
This text of 584 F. Supp. 4 (Davis v. McKaskle) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ORDER
Came on to be heard the Motion for Summary Judgment of Respondent W.J. Estelle, Jr. Having considered the arguments of the parties and the applicable law, the Court is of the opinion that the Motion should be GRANTED.
Petitioner Travis Davis was convicted of robbery by assault on November 25, 1974. Because this conviction was enhanced by a prior robbery conviction, Petitioner was sentenced to thirty years in the Texas Department of Corrections. Petitioner has directly appealed this case in state court, filed five state applications for habeas corpus, and filed one other petition for federal habeas corpus. All challenges to Petitioner’s conviction have been unsuccessful.
The instant application for habeas corpus advances only one ground upon which relief could be granted. Petitioner asserts that the State failed to prove at trial that Petitioner took money from the Complainant ’ and proved instead that Petitioner grabbed the Complainant’s purse, which contained money, and that Complainant grabbed the purse back. Petitioner asserts that because the Indictment alleges that Petitioner took Complainant’s “money,” a fatal variance between the charge and the evidence occurred.
“In a federal court, habeas corpus can be invoked with respect to indictments only where they are so ‘fatally defective’ that under no circumstances could a valid conviction result from facts provable under the indictment____ Such a determination can be made only by looking to the law of the state where the indictment was issued.” Johnson v. Estelle, 704 F.2d 232, 236 (5th Cir.1983) (citation omitted). Accord, Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980) (“It is settled in this Circuit that the sufficiency óf a state indictment is not a matter for federal habeas corpus relief unless it can be shown that the indictment is so defective that the convicting court had no jurisdiction”).
The Court has examined the record in this action and the pertinent caselaw. The record indicates that the Complainant’s purse contained money,1 that the Petitioner [5]*5did at one point seize the purse,2 and that Complainant in the ensuing struggle grabbed her purse back.3
The question therefore becomes whether a person has taken a thing for purposes of the Texas robbery statute if he gains but then loses control of that thing. Although it has not directly addressed the question in a situation like the one at bar, the Court of Criminal Appeals has indicated that the answer would be in the affirmative. For example, in Aughton v. State, 149 Tex.Cr.R. 504, 196 S.W.2d 642, 643 (Tex.Cr.App.1946), the Court noted that in order for robbery to occur, “it was not necessary to show that (defendant) carried the property away in order to complete the offense. If he reduced the property to his possession, although he later abandoned it, the offense would nevertheless be complete.” The Court of Criminal Appeals has reached similar conclusions in theft cases. See, e.g., Baker v. Texas, 511 S.W.2d 272 (Tex.Cr.App.1974) (“Removal of the object from its customary location is sufficient to show such reduction to the control or possession as is required [to prove theft]”); Wilburn v. Texas, 418 S.W.2d 832, 833 (Tex.Cr.App.1967) (“To constitute a taking it was not necessary that the property be removed from the presence or the premises of the owners____ Appellant’s control and management of the property were sufficient to show his fraudulent intent”); Senter v. Texas, 411 S.W.2d 742, 744 (Tex.Cr. App.1967) (“[0]ne charged with theft may acquire that character of possession necessary to constitute his taking theft, even though the property is not removed from the presence or the premises of the owner”). Thus, the amount of time during which the Petitioner had control over the Complainant’s money is not the focus; “the mere lapse of a moment is sufficient to make the offense complete.” 418 S.W.2d at 833. Baker, Wilburn, and Senter deal with theft and not robbery, but the principle of when a taking occurs for purposes of theft appears to apply in robbery cases, given the similarity of the two crimes. See Aughton, 196 S.W.2d at 643 (“Robbery is but an aggravated species of theft”).
Accordingly, it is ORDERED, ADJUDGED, and DECREED that the Motion be and hereby is GRANTED.
The Clerk shall file this Order and provide a true copy to counsel for all parties.
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Cite This Page — Counsel Stack
584 F. Supp. 4, 1984 U.S. Dist. LEXIS 17295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-mckaskle-txsd-1984.