Sidney v. State

560 S.W.2d 679, 1978 Tex. Crim. App. LEXIS 1015

• Court: Court of Criminal Appeals of Texas
• Decided: January 25, 1978
• Docket: 53533
• Status: Published

Opinions

OPINION

DOUGLAS, Presiding Judge.

This is an appeal from a conviction for aggravated robbery. The court assessed punishment at eight years.

The record reflects that on January 2, 1975, appellant robbed Bertha DeLa Torres of her wallet, which contained approximately $3.00. He took the wallet while he beat her severely. As a result she sustained injuries to her face, left eye and mouth.

Appellant contends that a fatal variance exists between the indictment and the proof. The indictment alleges, in part, that appellant “ . . . did then and there unlawfully * * * while in the course of committing theft of money owned by . the complainant, and with intent to obtain and maintain control of the property, using and exhibiting a deadly weapon, namely, a pistol, intentionally and knowingly cause serious bodily injury to the complainant.”

The record reveals that no pistol was used or displayed by appellant during the robbery. The complainant’s injuries were caused from the beating appellant inflicted upon her with his fists.

The court instructed the jury that “[T]he offense is aggravated robbery if the person committing a robbery causes serious bodily injury to another or uses or exhibits a deadly weapon in committing robbery.”

In applying the law to the facts, the court gave the following instruction:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 2nd day of January, 1975 in Harris County, Texas, the defendant, CHARLES HENRY SIDNEY Mias CHARLES WILLIAMS, did, without the effective consent of Bertha DeLa Torres, the owner, take and exercise control over the corporeal personal property of Bertha DeLa Torres, to wit, money, from the possession of Bertha DeLa Torres, with intent then and there to deprive Bertha DeLa Torres of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally or knowingly, caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond' a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Bertha DeLa Torres then you will find defendant guilty of aggravated robbery . . .

There were no objections to the court’s charge.

Appellant was indicted under V.T.C.A., Penal Code, Section 29.03, which provides as follows:

“(a) A person commits an offense as defined in Section 29.02 of this code, and he:

“(1) causes serious bodily injury to another; or

“(2) uses or exhibits a deadly weapon.

“(b) An offense under this section is a felony of the first degree.”

The constituent elements of the offense are that a person (1) commits the offense of robbery as defined in Section 29.02, supra, (2) causes serious bodily injury to another or uses or exhibits a deadly weapon. Where there are several ways or methods by which an offense may be committed set forth in the same statute, and those ways or methods are subject to the same punishment, they may be charged conjunctively in one count. Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976); see also, 30 Tex.Jur.2d, Indictment and Information, Section 42, page 610. Therefore, an indictment charging the offense of aggravated robbery may properly allege conjunctively in one count that the robbery was effected by the use and exhibition of a deadly weapon, and by the infliction of serious bodily injury to another. Allegation and proof of either of the two statutory means of aggravation will suffice to support a conviction for aggravated robbery. See and compare Garcia v. State, supra.

Appellant was initially charged with committing aggravated robbery by using and exhibiting a deadly weapon and by intentionally causing serious bodily injury to the complainant. The theory that appellant used and exhibited a deadly weapon was abandoned and was not submitted in the court’s charge.

Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), is distinguishable on its facts. In Burrell, the State was erroneously allowed to amend a duplicitous indictment by deleting descriptive allegations. We held that such amendment was one of substance and, thus, contravened Article 28.10, V.A.C. C.P. In the instant case, however, there was no amendment, but merely an abandonment of one of the ways or methods by which the offense could be committed. No violation of Article 28.10, supra, has been shown.

The State relied upon the theory set forth in the indictment that appellant intentionally caused serious bodily injury to the complainant. The proof supporting this theory is strong. We hold that no fatal variance is shown.

In view of this holding, we do not reach appellant’s contention that the evidence is insufficient to support the allegation that he used and exhibited a pistol. Likewise, we do not reach his contention that the evidence is insufficient to show he caused serious bodily injury to the complainant with a pistol.

Appellant contends the evidence is insufficient to prove that he stole the complainant’s wallet. He argues that the evidence is sufficient to support a conviction for attempted rape, but is insufficient to prove any offense against property.

The complainant testified that appellant had placed her in fear of imminent serious bodily injury or death. He took her wallet without her consent while he was hitting her and did not return it. She further testified that the wallet contained approximately $3.00.

Viewing this evidence in the light most favorable to the State, as we must, we hold the evidence was sufficient to prove that appellant robbed the complainant of her money. See V.T.C.A., Penal Code, Sections 29.02, 29.03 and 31.03.

The judgment is affirmed.