Olveda v. State

650 S.W.2d 408, 1983 Tex. Crim. App. LEXIS 948

Opinions

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of robbery and punishment was assessed at ten years. The Court of Appeals reversed the conviction in published opinion, 625 S.W.2d 13, that sustained appellant’s only ground of error. The court held fundamental error was presented because the jury charge failed to include the statutory definition of the phrase “in the course of committing theft.” V.T.C.A., Penal Code Sec. 29.01(1).

The Court of Appeals relied on Rohlfing v. State, 612 S.W.2d 598, in reaching its decision. In that case a panel of this Court held that omission of a definition of “in the course of committing theft” did not constitute fundamental error. The Court of Appeals attempted to distinguish Rohlfing on the theory that the assaultive conduct there was made during the commission of theft, while the conduct here was committed in immediate flight from the theft. We find the distinction unpersuasive.

As noted in Rohlfing, when the statutory definition is not included in the charge, it is assumed the jury would consider the commonly understood meaning in its deliberations. Although error could result where the common meaning is more expansive than the statutory definition, such is not the case with the phrase “in the course of committing theft.” Any possible misunderstanding of the phrase would have been more restrictive than the statutory definition, and could only have been to appellant’s benefit. No reversible error is shown.

The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.