Hill v. State

640 S.W.2d 879, 1982 Tex. Crim. App. LEXIS 1056

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

This cause is before us on the State’s Petition for Discretionary Review. The Court of Appeals reversed appellant’s conviction for aggravated robbery, holding that the jury charge contained fundamental error under Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.), in that the paragraph of the charge wherein the law is applied to the facts of the case failed to include the element “while in the course of committing theft.” The omission of this element is permissible under Evans only where the trial judge then sets out the elements of the offense of theft. Here, the court omitted the element which designated in what manner the appropriation of property was unlawful; to-wit: “without the effective consent of the owner.” Because the element “while in the course of committing theft” was omitted, the lower court should have then included all of the theft elements. Failure to do so is fundamental error for it allows the jury to convict without ensuring that all the elements of the offense are proven beyond a reasonable doubt. See also Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.); Young v. State, 621 S.W.2d 770; Rushing v. State, 621 S.W.2d 606 (Tex.Cr.App.).

The State now urges this Court to overrule the Evans line of cases and although the Court of Appeals applied Evans in reversing the conviction, that case was criticized and we were invited to reexamine the requirements of a jury charge for the offense of aggravated robbery. See Hill v. State, 625 S.W.2d 803 (Tex.App. — Houston [14th] 1981). Although we are not constrained to follow precedent, we decline to overrule Evans because reexamination of its holding results in a finding that the decision is a sound one, founded on logical reasoning.

The indictment, in pertinent part, alleges that appellant:

“did then and there unlawfully, while in the course of committing theft of property owned by PAULA CAGLE, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a knife.”

In the charge to the jury, the trial court abstractly defined the offenses of robbery, aggravated robbery and theft. The court also defined the term “appropriate” and instructed the jury that appropriation of property is unlawful if it is without the owner’s effective consent.

In applying the law to the facts of the case, the trial court instructed the jury as follows:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of February, A.D. 1979, in Harris County, Texas, the defendant, Calvin Arthur Hill, with intent to deprive Paula Cagle, the owner, of her personal property, did unlawfully appropriate from Paula Cagle said property belonging to Paula Cagle, and that the defendant, Calvin Arthur Hill, in so doing, and with intent to obtain or maintain control of said property, then and there intentionally or knowingly threatened or placed said Paula Cagle in fear of imminent bodily injury or death, if you do so find, exhibited a deadly weapon, namely, a knife, then you will find the defendant guilty of the offense of aggravated robbery, as charged in the indictment, and so say by your verdict.”

The Court of Appeals correctly held that this case is controlled by Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.), wherein it was stated:

“In the instant case the terms ‘theft’ and ‘while in the course of committing theft’ were properly defined in the definitional portion of the charge. However, the court’s charge did not require the jury to find that the robbery occurred while in the course of committing theft as defined in the charge in order to convict; rather, the court attempted to set out the component parts of that element. Nevertheless, as noted above, the court omitted an essential part of the element when it did not require the jury to find that appellant took or attempted to take the property without the owner’s effective consent.

“A jury charge which authorizes a conviction without requiring the jury to find all of the elements of the offense charged is fundamentally defective. Thompson v. State, Tex.Cr.App., 574 S.W.2d 103; West v. State, Tex.Cr.App., 572 S.W.2d 712. We likewise hold that when in applying the law to the facts, a trial court charges a jury on the component parts of an element of the offense rather than the element itself, the charge must require the jury to find all of the parts of that element in order to convict. The jury charge in the instant case did not so require and is fundamentally defective.”

In Evans this Court relied on Rider v. State, 567 S.W.2d 192 (Tex.Cr.App.), by drawing an analogy to a burglary conviction which was reversed because of a fundamentally defective charge. The indictment charged the defendant with burglary with intent to commit theft. As with an aggravated robbery charge, it is permissible for the trial judge to simply define the term “theft” abstractly in the charge and in applying the law to the facts instruct the jury that they may find the defendant guilty “if they find beyond a reasonable doubt that at the time of the offense he had the intent to commit the offense of theft as defined therein.” Rider v. State, 567 S.W.2d at 195. Instead, however, the trial judge attempted to set out the elements of theft and omitted the element “without the owner’s consent.” In applying the law to the facts the trial judge must require that all the elements of the offense be found. If the judge chooses to omit the element “with intent to commit theft”, all the component parts of theft must be applied to the facts, just as the elements of theft must be applied to the facts under Evans if the trial judge omits the element “while in the course of committing theft.”

The requirement that all of the elements of theft be set out in the paragraph applying the law to the facts¹ is further supported by caselaw enunciating the requirements of a charge in a theft case. In Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.), this Court reversed a theft conviction on a fundamentally defective jury charge. In applying the law to the facts of the case, the trial judge failed to include the element of “without the owner’s effective consent.” See V.T.C.A., Penal Code Sec. 31.03(b)(1). Further, it was specifically noted in Bradley that the court’s abstract instructions will not remedy a deficiency in the paragraph of the charge applying the law to the facts of the case.

The argument advanced is largely based upon the dissenting opinion in Williams v. State, 622 S.W.2d 95, 96 (Tex.Cr.App.). It is contended that the charge must be read “as a whole” and that the paragraph in which the law is applied to the facts must not be read in a vacuum but must be construed in light of the abstract instructions given. It is true that in some cases in which a jury charge is challenged as being defective that the charge should be examined in its entirety. See Thomas v. State, 599 S.W.2d 812 (Tex.Cr.App.); Slagle v. State, 570 S.W.2d 916 (Tex.Cr.App.). There is also authority for the proposition that the portion of the court’s charge to which we normally look in determining whether the charge is fundamentally erroneous is the part that applied the law to the facts. Thomas v. State, 587 S.W.2d 707 (Tex.Cr.App.); Jones v. State, 576 S.W.2d 393 (Tex.Cr.App.). In other words, in those cases which rely on the rule that the charge be examined as a whole, the issue presented was not one of fundamental error for failure to include all elements of the offense. See Slagle, supra. In White v. State, 610 S.W.2d 504 (Tex.Cr.App.), this Court considered an allegation of fundamental defect by viewing the charge “as a whole,” but specifically distinguished a case relied on by the defendant wherein a conviction was reversed for omission of an element of the offense from the charge. White, supra, at 507. Compare West v. State, 567 S.W.2d 515 (Tex.Cr.App.). Similarly, in Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.), a challenge to the sufficiency of a jury charge in an aggravated robbery case resulted in an examination of the charge as a whole. Before determining that such an examination was appropriate, however, we initially noted that the complained of omission was not one of an entire essential element, distinguishing West, supra; Bradley, supra; and, Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.).

Where the paragraph applying the law to the facts omits an essential element of the offense, an examination of the remainder of the- charge, including the abstract definitions, is never sufficient to cure the error caused by the omission. The first step in analyzing a fundamental error issue for failure to include all necessary elements of the offense is to examine the paragraph of the charge which applies the law to the facts of the case.

Another argument advanced is that the omission of “without the owner’s effective consent” from the paragraph applying the law to the facts is not a defect because the jury is charged that they must find appellant unlawfully appropriated the property and in the abstract definitions unlawful appropriation is defined as being without the owner’s effective consent. Thus, if the jury refers back to the abstract definitions, they must find this sub-element before finding appellant guilty. This view overlooks the importance of the paragraph of the charge where the trial judge applies the law to the facts and does not adequately ensure that each and every element of the offense be found by the jury beyond a reasonable doubt. Similarly, the argument that an omission of an element from a charge will be remedied where the jury is required to find a defendant committed conduct “as alleged in the information” or “as alleged in the indictment” has been consistently rejected. Escort v. State, 621 S.W.2d 608, 609 (Tex.Cr.App.); Bradley v. State, supra. Further, in Escort, the omission of an element in a prostitution case was not cured by the inclusion of that element in the court’s abstract definitions, even though the application paragraph commenced with the phrase “[n]ow bearing in mind the foregoing instructions ...” Thus, even though the completion of a recitation of the elements of an offense may be accomplished by referring to portions of the charge other than the application paragraph, such an approach would greatly diminish the protection afforded to a defendant by requiring the trial judge to apply the entire set of elements to the evidence in the application paragraph of the charge.

The importance of this requirement was emphasized in Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.) and Williams v. State, 547 S.W.2d 18 (Tex.Cr.App.). In Harris we noted that:

“It is well established that the charge, rather than state mere abstract propositions of law and general statements of principles contained in the statutes, must clearly apply the law to the very facts in the case.” [citations omitted.] (Emphasis added.)

The facts presented a situation where the trial court utterly failed to apply the law to the evidence and thus “the jury was not instructed under what circumstances they should convict, or under what circumstances they should acquit.” Harris, 522 S.W.2d at 202. The same error was committed in Williams and the emphasis by this Court on the importance of the application paragraph is fully consistent with the view that abstract definitions will not cure the omission of an element from that paragraph. The omission of an element from the application paragraph is as fundamentally defective as an omission of the paragraph in its entirety. We note the language of Williams as being most instructive:

“The law must come from the court, the facts must be decided by the jury, and the charge, to instruct the jury properly, must apply the law to the facts raised by the evidence.... An abstract charge does not inform the jury of what facts, if found by it, would constitute proof of the elements of the offense.” (Emphasis added.)

Thus, the most fundamental reason for rejecting the State’s argument is that if the jury is required to refer to the abstract definition for the element “without the owner’s effective consent,” they have only been informed of what facts would constitute proof of some of the elements of the theft but not all of those elements. Such an approach invites confusion. In Williams it was also noted that:

“It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion. A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those fact issues.” (Emphasis added.)

Williams, supra, at 20.

It is also impliedly argued that by reaffirming Evans this Court is ignoring the “legislative mandate” of Art. 36.19, V.A.C. C.P. wherein it is stated that a judgment shall not be reversed for error in a jury charge unless it appears from the record that the error “was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” However, such an argument seems to advance the proposition that a separate analysis to determine prejudice is necessary after the reviewing court has found fundamental error. Rather, the rule is that where such error is contained in the charge, the standard for prejudice under Art. 36.19 is automatically met. In other words, in determining that there is fundamental error, we are determining that the error was calculated to injure the rights of the defendant. Thus, not only is that process of finding fundamental error in compliance with Art. 36.19, it is additionally a finding that the “legislative mandate” of Art. 36.14² has been violated. See Harris, supra; Williams, supra; Beggs v. State, 597 S.W.2d 375 (Tex.Cr.App.).

Finally, it is contended that the inclusion in the application paragraph that the jury must find appellant threatened or placed the owner in fear of imminent bodily injury or death is tantamount to a finding that the underlying theft was without effective consent. This argument is without consideration of the fact that robbery and theft are two distinct offenses, Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.), and that the victim of the robbery and the victim of the theft need not be the same person. Servance v. State, 537 S.W.2d 753 (Tex.Cr.App.); Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.). Therefore, the fact that the victim of the aggravated robbery is threatened or placed in fear of bodily injury does not necessarily mean that the taking was without the owner’s effective consent because the owner may be a person other than the victim of aggravated robbery.

We reaffirm the requirement that where the trial judge chooses to delete “while in the course of committing theft” and instead charges on the component elements of theft, those elements must be applied to the facts without omission of any element. The jury must be instructed in the application paragraph that each of those elements, as applied to the evidence, must be found in order to find a defendant guilty beyond a reasonable doubt.

The Court of Appeals correctly found fundamental error in the jury charge under Evans, supra. Accordingly, the judgment is affirmed.

1 . We again emphasize that this is a requirement only where the trial judge chooses to omit the element of “while in the course of committing theft.” This is the preferred method of charging the jury in an aggravated robbery case. The jury is then to refer to the abstract definition of theft where all the elements are set out together.

2 . Art. 36.14 specifies the duties of the trial judge in charging the jury and includes the requirement that the judge shall deliver to the jury “... a written charge distinctly setting forth the law applicable to the case....”