Todd v. State
This text of 661 S.W.2d 116 (Todd v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
Appeal was taken from a conviction for aggravated robbery. Punishment was assessed at forty years. The Houston Court of Appeals, Fourteenth Supreme Judicial District, reversed appellant’s conviction on the basis of fundamental error in the jury charge. The case came before us on the State’s petition for discretionary review which we granted in order to reconsider this Court’s previous holding in Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980). We now reverse the judgment of the Court of Appeals and remand the case for consideration of appellant’s other grounds.
On July 6, 1983, this Court handed down the opinion in the case of Woods v. State, 653 S.W.2d 1 (Tex.Cr.App.1983), wherein we overruled Evans v. State, supra; Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.1981); and Hill v. State, 640 S.W.2d 879 (Tex.Cr.App.1982). It is now clear that where it is alleged, proven, and found that a defendant intentionally or knowingly placed the owner in fear of imminent bodily injury or death in the course of a taking, a charge is not defective for failing to require that the jury separately find the taking to have been without the effective consent of the owner.
In a response, appellant raises two arguments which we feel must be addressed. First, he argues that the State does not have the ability to seek discretionary review from this Court. Secondly, he argues that trial counsel timely filed a written objection to the trial court’s charge and thus perfected error in the charge, should it be found that the error was not fundamentally defective.
Regarding his first contention, appellant contends that Article 44.01, V.A.C. C.P. (amended 1981), which allows the State to seek discretionary review, conflicts with Article V, Section 26 of the Texas Constitution and thus is unconstitutional.1
Because of the congested docket of this Court, the people of Texas voted in 1980 to amend the State’s Constitution to create an intermediate level of appellate review in criminal cases. This amendment to Texas Constitution Article V, Sections 5 and 6 (effective September 1, 1981), transformed the courts of civil appeals into the courts of appeals, broadened their intermediate appellate jurisdiction to include criminal as well as civil appeals and modified the juris[118]*118diction of the Court of Criminal Appeals.2 Under Texas Constitution, Article V, Section 5 (1981), the appeals of all criminal cases, other than death penalty cases, are directed to the courts of appeal. The section also provides that:
“... In addition, the Court of Criminal Appeals may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law. Discretionary review by the Court of Criminal Appeals is not a matter of right, but of sound judicial discretion.... ” (Emphasis added)
In order to implement the jurisdictional changes provided in the constitutional amendment, Senate Bill 265, containing a number of statutory amendments, was passed. These included amendments to Article 4.04,3 Article 44.01,4 and Article 44.45,5 V.A.C.C.P. Thus, we see that as a result of both constitutional and statutory amendment, the whole framework of the criminal appellate system in Texas was changed.
The appellant argues that this is a question of a conflict between a “statutory creation of the Legislature,” namely, Article 44.01, V.A.C.C.P. (1981), and a constitutional provision, Article V, Section 26.
In amending Article 44.01, the Legislature recognized the prohibition imposed by Article V, Section 26, and sought to make it clear that discretionary review, when granted, was “on its (this Court's) own motion.” Such language is clearly consistent with the language of Article V, Section 5. Further, the addition to Article 44.01 is not in conflict with Article V, Section 26, and is, therefore, not unconstitutional.
Appellant next contends that he properly objected to the portion of the court’s charge which the Court of Appeals found to be fundamentally defective. He directs our attention to the following written objection:
“The Defendant objects to the charge on principals appearing on page 4 because it omits an essential element of the offense and authorizes conviction on a set of facts that do not constitute an offense .... ”
Appellant, however, forgets to include the remainder of his objection which continues:
“... The said charge authorizes a conviction without a finding that the Defendant personally committed the offense. Furthermore, the jury is authorized to convict the Defendant on a finding that an alleged co-party committed the offense or that the Defendant was criminally responsible for the acts of a co-party. It therefore authorizes conviction on a set of facts that do not constitute an offense for which the Defendant is criminally responsible.”
Thus, it can be seen that appellant’s concern when he filed this written objection was on the presentation of the law of parties, not on the fact that the charge omitted the phrase “without the owner’s effective consent.”
Because we find that the Court of Appeals erred in reversing appellant’s convic[119]*119tion because of fundamental error in the jury charge, the judgment of the Court of Appeals is reversed and remanded for consideration of appellant’s other grounds of error.
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Cite This Page — Counsel Stack
661 S.W.2d 116, 1983 Tex. Crim. App. LEXIS 1278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/todd-v-state-texcrimapp-1983.