Mosely v. State

627 S.W.2d 770, 1981 Tex. App. LEXIS 4607
CourtCourt of Appeals of Texas
DecidedDecember 23, 1981
DocketNo. 01-81-0044-CR
StatusPublished
Cited by5 cases

This text of 627 S.W.2d 770 (Mosely v. State) 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
Mosely v. State, 627 S.W.2d 770, 1981 Tex. App. LEXIS 4607 (Tex. Ct. App. 1981).

Opinion

DUGGAN, Justice.

The appellant was convicted of robbery, and his punishment, enhanced under V.T. C.A. Penal Code, Sec. 12.42 by the allegation and proof of a prior felony conviction, was assessed by the jury at life in the Texas Department of Corrections.

The evidence shows that on March 28, 1979, the complainant, Wesley Frazier, was approached by the appellant outside Frazier’s Motel in Harris County, Texas. Frazier testified that the appellant offered to sell him a color television set, which he declined. After he turned away from the appellant to leave, the appellant tackled him to the ground, took his wallet and ran away. Frazier testified that he received a skinned elbow and reinjured his tailbone during the robbery.

Appellant asserts seven grounds of error on appeal.

In his first ground of error, appellant alleges reversible error in the trial court’s refusal to quash the indictment, inasmuch as it failed to specify who had possession of the property at the time of the robbery. This ground of error is overruled, since appellant was indicted under the new Penal Code, which no longer requires allegations of the elements of theft in an indictment for robbery. Ex Parte Lucas, 574 S.W.2d 162 (Tex.Cr.App.1978); Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976). Cases cited by the appellant were decided under the old penal code and are no longer viable statements of the law in support of his position.

Appellant’s second and third grounds of error urge fundamental error in the court’s charge for allowing conviction upon a theory not alleged in the indictment. Appellant argues that while the indictment charged that he did “. . . intentionally and knowingly cause bodily injury to the complainant,” the court’s charge authorized conviction if “. . . in the course of committing theft . . . he or she intentionally, knowingly or recklessly causes bodily injury to another” (emphasis added).

The word “recklessly” appears in Section 29.02 of the Penal Code, which defines the offense of robbery as conduct done in the course of committing theft, with the intent to obtain or maintain control of the property, where the person either:

(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 first paragraph' of the court’s charge, defining the offense of robbery, stated that:

Our law provides that a person commits an offense if, in the course of committing [772]*772theft, as that term is hereinafter defined, and with intent to acquire and maintain control of corporeal personal property of another, he or she intentionally, knowingly or recklessly causes bodily injury to another.

The precise language of the court’s charge in applying the law to the facts instructed the jury as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 28th day of March, 1979, in Harris County, Texas, the defendant, Samuel Earl Mosely, did, while in the course of committing theft of property owned by Wesley Frazier, hereinafter styled the Complainant and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the complainant, then you will find the defendant guilty of robbery as charged in the indictment (emphasis added).

The term “recklessly” does not appear in this paragraph applying the law to the facts. It is clear from reviewing the charge above that conviction was authorized only if the jury found the appellant to have intentionally and knowingly caused bodily injury to the complainant. The jury was not instructed as to a definition of the term “recklessly,” and the trial court did not authorize the jury to find the appellant guilty of robbery for recklessly causing bodily injury to the complainant.

It has long been held proper for the trial court to set forth the general law in its charge and to then make a direct and pertinent application of the law to the facts in the particular case. Martinez v. State, 157 Tex.Cr.R. 603, 252 S.W.2d 186 (1952). In Grudzien v. State, 493 S.W.2d 827 (Tex.Cr.App.1973), involving sale of marihuana, the court tracked the pertinent statute and charged that it was unlawful to “manufacture, possess, sell, prescribe, administer, dispense or compound” any narcotic drugs. The court then applied the law to the facts of the case, and authorized a finding of guilty only for a sale of marihuana. No harm or reversible error was found. See also Grady v. State, 614 S.W.2d 830 (Tex.Cr.App.1981), and Toler v. State, 546 S.W.2d 290 (Tex.Cr.App.1977), in which it was held that abstract statements of the law going beyond allegations in the indictment do not present reversible error when the court’s application of the law to the facts effectively restricts the jury’s deliberation to the allegations in the indictment. Such has been done in the present case, and no error is shown. Cases cited by the appellant to support his position involve jury charges that did not limit the law to the facts proven at trial, but which specifically authorized conviction for reasons outside the indictment, and are not applicable here. Appellant’s second and third grounds of error are overruled.

In his fourth ground of error, appellant urges that the trial court erred in denying his motion for mistrial after the State asked an allegedly improper question to the complainant on redirect examination. The pertinent examination was as follows:

Q. (Mr. Prashner): Prior to March 28, 1979, did you ever have any bad experiences with the [defendant]?
Mr. Peters: Excuse me, Judge. I am going to object.
A. (Continuing) No bad experience— The Court: Sustained.
Mr. Peters: I would ask the Court to instruct the jury to disregard that statement by the prosecution.
The Court: The jury is so instructed. This is improper redirect. These are not matters raised on cross.
Mr. Peters: I would move at this time for a mistrial.
The Court: Overruled.

The appellant contends that the question called for an answer which tended to show that the appellant was a criminal generally, in direct violation of Jackson v. State, 363 S.W.2d 947 (Tex.Cr.App.1963). This contention is incorrect for several reasons. First, Jackson does not deal with improper questions tending to show a defendant to be a criminal generally. Rather, it condemns an unanswered question that implied or conveyed to the jury the idea [773]

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Bluebook (online)
627 S.W.2d 770, 1981 Tex. App. LEXIS 4607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mosely-v-state-texapp-1981.