Dowden v. State

537 S.W.2d 5, 1976 Tex. Crim. App. LEXIS 940

• Court: Court of Criminal Appeals of Texas
• Decided: April 20, 1976
• Docket: 51124
• Status: Published

Opinions

OPINION

ODOM, Judge.

This appeal is from a conviction for aggravated robbery. Punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life imprisonment.

It is only necessary to consider the ground of error in which appellant correctly contends that the trial court’s charge upon the guilt or innocence stage of the trial presents reversible error. In paragraph six of said charge, the trial court instructed the jury as follows:

“Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Charles R. Dowden, on or about the 28th day of June, 1974, in the County of Orange, State of Texas, as alleged in the indictment, did then and there and while in the course of committing theft and with the intent to obtain property of Doug Storey, to wit, United States Currency, without the effective consent of said Doug Storey, and with intent to deprive the said Doug Storey of said property, Defendant then and there by using and exhibiting a deadly weapon, to-wit, a gun, intentionally or knowingly, or recklessly, place Doug Storey in fear of imminent bodily injury or death, you will find the defendant guilty of the offense of aggravated robbery and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guilty.’ ”

In timely filed written objections ¹ to the court’s charge, appellant objected to the use of the word “recklessly” in this portion of the charge.² The overruling of this objection presents reversible error in that the charge authorized the jury to find appellant guilty of aggravated robbery for conduct that does not constitute such offense under V.T.C.A. Penal Code, Secs. 29.02 and 29.03. Section 29.03 provides that a person commits aggravated robbery if he commits robbery as defined in Sec. 29.02 and uses or exhibits a deadly weapon. Sec. 29.02 provides:

“(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.”

The statutes do not authorize a conviction for robbery if the proof only shows that a person recklessly placed another in fear of imminent bodily injury or death, and yet the court’s charge here authorized a finding of guilt upon precisely that finding.

It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397); the indictment alleged such conduct (Venzor v. State, supra; 31 Tex.Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch’s Ann.P.C. (2d ed.), Sec. 2603 at 32). In the instant case none of these requirements of due process of law were met because the trial court authorized the jury to find appellant guilty upon a set of circumstances that could not constitute the offense charged. Accordingly, the judgment must be reversed.

Appellant also complains that in the first two paragraphs of the charge the court quoted the entirety of V.T.C.A. Penal Code, Secs. 29.01 and 29.02, including portions thereof that were neither pled in the indictment nor supported by the proof at trial. This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. E. g., Griffith v. State, 142 Tex.Cr.R. 559, 155 S.W.2d 612; see Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Simons v. State, Tex.Cr.App., 34 S.W. 619; cf. Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10. We reiterate that admonition.

The judgment is reversed and the cause is remanded.

1 . The language in Art. 36.19, V.A.C.C.P., relied upon in the dissent was enacted in 1897 and again in 1913. The emergency clause in the 1913 Act reads:

“The fact that there are many reversals in criminal cases caused by errors in the charge of the court due to the fact that such errors were not pointed out to the trial judge before the charge was given and the further fact that the docket of the Court of Criminal Appeals is daily becoming crowded with cases many of which contain such errors, creates an emergency and an imperative public necessity [etc.] . . .” Acts 1913, p. 278, at 279.

Other sections of the Act provided that objections must be in writing, which had not been required before that time. This tells us that the language in Art. 36.19, upon which the dissent relies, referring to a requirement having been disregarded, refers to those cases in which the defendant disregarded the requirement of written objections. The dissent’s reliance on that article is misplaced. See, e. g., Echols v. State, 75 Tex.Cr.R. 369, 170 S.W. 786, 792 (1914).

2 . In Williams v. State, Tex.Cr.App., 535 S.W.2d 352 (1976), Article 36.19, V.A.C.C.P., was given application because there was not proper objection to the charge. In the instant case there was proper objection.