Pittman v. State

532 S.W.2d 97, 1976 Tex. Crim. App. LEXIS 855

• Court: Court of Criminal Appeals of Texas
• Decided: February 4, 1976
• Docket: No. 50791
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for robbery by assault under our former Penal Code. A jury assessed punishment at ten years.

At the outset we are confronted with a fundamentally defective indictment, the charging portion of which alleges that appellant did unlawfully:

“assault Terry P. White hereafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, fraudulently and against the Complainant’s will take from the person and possession of the Complainant money with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use.”

Although the indictment sufficiently alleges the possession of the property taken, the ownership of that property is nowhere alleged. Hence, the indictment is fundamentally defective and cannot support a conviction for robbery by assault. Bouie v. State, Tex.Cr.App., 528 S.W.2d 587; Lucero v. State, Tex.Cr.App., 502 S.W.2d 128; see 5 Branch’s Ann.P.C. (2d ed.), Sec. 2584 at 19, and authorities there cited.

The judgment is reversed and the prosecution ordered dismissed.