In re A.B.

868 S.W.2d 938
CourtCourt of Appeals of Texas
DecidedJanuary 19, 1994
DocketNo. 2-93-089-CV
StatusPublished
Cited by22 cases

This text of 868 S.W.2d 938 (In re A.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re A.B., 868 S.W.2d 938 (Tex. Ct. App. 1994).

Opinion

OPINION

FARRIS, Justice.

The juvenile court found A.B. had engaged in delinquent conduct by committing the offense of attempted robbeiy, see Tex.Penal Code Ann. § 15.01 (Vernon Supp.1994), § 29.02 (Vernon 1989) and Tex.Fam.Code Ann. § 51.03 (Vernon Supp.1994), and granted him probation, not to exceed one year. A.B. appeals complaining: the State failed to identify him as the person who struck Bu-shell and failed to prove he attempted theft while striking Bushell, the victim, with his hands; “attempted robbery” is not an offense; and the elements of robbery were not pled. Because the evidence is sufficient to prove A.B. was a party to the offense; because any variance between the pleading and the proof was not substantial, misleading, or prejudicial to A.B.’s defense; because defendants have been convicted of “attempted robbery” in the State of Texas; and because the constituent elements of the intended offense need not be alleged, we overrule A.B.’s points of error and affirm the judgment.

In one proceeding, the trial court determined the delinquency of nine juveniles, in-[940]*940eluding A.B. The State alleged A.B. was one of nine boys who attacked and attempted to rob Colby Bushell, a pizza delivery man.

The evidence showed Bushell had just delivered a pizza at an apartment complex when a group of boys attacked him. They threw rocks at him and two or three of them yelled, “[H]ey, pizza man, give us your money.” Bushell ran to his car and hid his money. He did not drive away because the boys were closing in on him, and he was afraid the ear would stall because it was old. Instead, he grabbed his unloaded BB gun and began knocking on apartment doors. The boys continued their pursuit, throwing rocks and yelling, “Give us your money” and that they were going to get him.

Eventually, the boys cornered Bushell. Bushell tried to scare them off with his BB gun. When this did not work, he turned to flee but he was struck from behind. Bushell suffered additional blows before he was able to break away and find help from an apartment resident, Ricky Anderson. With Anderson’s aid, Bushell called the police and within minutes they apprehended nine boys, the respondents in this proceeding. Bushell identified each of the boys and they were arrested. A.B. was then charged with violating sections 15.01 and 29.02 of the Texas Penal Code.1

In its petition, the State alleged A.B.:

[Ijntentionally, with the specific intent to commit the offense of robbery, of Colby Bushell, do an act, to-wit: strike Colby Bushell with his hands while demanding his money, which amounted to more than mere preparation— [Emphasis added.]

In his fifth and sixth points of error, A.B. claims he was charged with an offense that does not exist and the State failed to plead an offense for which he could be found delinquent because, by its very definition, attempted robbery would require a showing the accused attempted to fail at a crime, which is inconceivable. AB.’s theory is incorrect because it is based on the notion the State had to plead and prove both the elements of robbery and the elements of criminal attempt.

Under the criminal attempt statute, the constituent elements of the intended offense need not be alleged. Boston v. State, 642 S.W.2d 799, 802 (Tex.Crim.App.1982). Further, the State’s pleading obligations for the current case are set out in Tex.Fam.Code Ann. § 53.04(d)(1) (Vernon 1986), and not in the Code of Criminal Procedure. Section 53.04(d)(1) provides, “The petition must state: (1) with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts[.]” Id. (emphasis added). This standard is less stringent than that applicable to criminal indictments. See M.A.V., Jr. v. Webb County Court at Law, 842 S.W.2d 739, 745 (Tex.App.-San Antonio 1992, writ denied). A petition in a juvenile delinquency proceeding only has to give the juvenile notice of the offense charged. Id.

After reviewing the law, we hold the State was obliged to plead the elements of an attempt offense, which are:

(1) a person;
(2) with specific intent to commit an offense;
(3) does an act amounting to more than mere preparation;
(4) that tends but fails to effect the commission of the offense intended.

Torres v. State, 618 S.W.2d 549, 550 (Tex.Crim.App. [Panel Op.] 1981). The State pled the following:

(1) Appellant (or a co-party);
(2) with the specific intent to commit robbery;
(3) did an act, to-wit: strike Colby Bushell with his hands while demanding his money;
[941]*941(4) which act tended but failed to effect commission of the offense of robbery.

Because the State pled the elements of attempted robbery, AB. was adequately apprised of the offense charged and it fulfilled its pleading obligation. Further, we note there have been convictions for attempted robbery in this state. See, e.g., Van v. State, 525 S.W.2d 199 (Tex.Crim.App.1975) (per curiam table opinion); Hubert v. State, 652 S.W.2d 585 (Tex.App.—Houston [1st Dist.] 1983, pet. ref'd). Points of error five and six are overruled.

AB. argues his first four points of error en masse. From what we can discern in general, AB. claims the State did not prove the offense it alleged. In particular, the State failed to identify him on the record as the person who struck Bushell and failed to prove he attempted theft while striking Bu-shell with his hands.

In reviewing the sufficiency of the evidence in a juvenile case, we consider the entire record to determine whether the evidence supporting the finding is either so weak or the evidence contrary to the finding is so overwhelming that it should be set aside and a new trial ordered. Matter of M.R., 846 S.W.2d 97, 101 (Tex.App.—Fort Worth 1992), error denied per curiam, 858 S.W.2d 365 (Tex.1993). The question we decide is whether the evidence considered as a whole shows the State sustained its burden of proof beyond a reasonable doubt. See Tex.Fam. Code Ann. § 54.03(f) (Vernon 1986).

Regarding A.B.’s complaint the trial court failed to identify him on the record, although the respondents were generally referred to by numbers instead of names, the record reveals the trial judge called each respondent by name and the bailiff ushered each of them to the defense table.

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868 S.W.2d 938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ab-texapp-1994.