Brewer v. State

• Citation: 572 S.W.2d 940
• Decision Date: 14 June 1978
• Docket Number: No. 3,No. 58550,58550,3
• Parties: Joseph Lee BREWER, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 940

572 S.W.2d 940

Joseph Lee BREWER, Appellant, v. The STATE of Texas, Appellee.

No. 58550.

Court of Criminal Appeals of Texas, Panel No. 3.

June 14, 1978.

State's Motion for Rehearing En Banc Denied Nov. 15, 1978.

Grant U. Hardeway, Sr., Houston, for appellant.

No appearance for the State.

Before ROBERTS, ODOM and TOM G. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appellant was convicted by a jury for aggravated robbery. The punishment, enhanced under the provisions of V.T.C.A., Penal Code, Sec. 12.42(c) was assessed by the court at life imprisonment.

In his second ground of error in appellant's pro se brief it is contended that the court's charge authorized a conviction on a theory not alleged in the indictment.

The indictment stated in pertinent part that on or about October 25, 1975, the appellant:

"While in the course of committing theft of money owned by Sharon Cotrone, hereinafter styled the Complainant, and with the intent to obtain and maintain control of the property, intentionally and knowingly threatened and placed the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol . . . ."

The court charged the jury as follows:

"Now, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of October, 1975 in Harris County, Texas, the defendant, Joseph Lee Brewer, did, without the effective consent of Sharon Cotrone, the owner, take and exercise control over the corporeal personal property of Sharon Cotrone, to wit, money, from the possession of Sharon Cotrone, with intent then and there to deprive Sharon Cotrone of said money, and that said defendant, in so doing, and with the intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly 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 Sharon Cotrone or the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment."

A reading of the indictment and the charge reflects that the charge authorized the jury to convict the appellant of aggravated robbery under theories not alleged in the indictment. The following recent decisions of this Court mandate reversal of this cause. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.); see also Dowden v. State (Tex.Cr.App.), 537 S.W.2d 5; Johnson v. State, 573 S.W.2d 778 (Tex.Cr.App., 1978); Cleland v. State, (Tex.Cr.App., No. 54,100, 1978).

The judgment is reversed and the cause remanded.

VOLLERS, Judge, dissenting to the denial of motion for leave to file a motion for rehearing.

The Court has refused the motion for leave to file a motion for rehearing in this cause without written opinion. I dissent to this action.

This case was reversed by Panel No. 3, 2nd Quarter, because the jury instructions of the trial court authorized the jury to convict the appellant of aggravated robbery under a theory not alleged in the indictment. The indictment in this cause alleges that appellant intentionally and knowingly threatened and placed Sharon Cotrone In fear of imminent bodily injury and death by using and exhibiting a deadly weapon; namely, a pistol. The jury instructions authorized conviction if the jury found that appellant intentionally and knowingly or recklessly Caused bodily injury to the complainant Or intentionally or knowingly threatened or placed the complainant In fear of imminent bodily injury or death, and exhibited a firearm. Three witnesses, including Sharon Cotrone, testified that the robbery was committed by the exhibition of a firearm and by threats accompanying such exhibition. None of these witnesses either testified to, or suggested by their testimony, that any bodily injury at all was inflicted upon Sharon Cotrone.

The appellant testified and denied that he participated in the robbery. An examination of the entire record fails to reveal any suggestion from the evidence or argument that bodily injury was inflicted upon Sharon Cotrone in the course of this robbery. Thus a reading of this record clearly reflects that there is no possibility that the jury was misled by the charge. Furthermore, there was no objection to the charge.

It appears that the basic problem is one of determining what constitutes "fundamental error." An examination of the cases relied upon in the original opinion reversing this cause illustrates just when, and how easily, this Court got off the path.

In Robinson v. State, 553 S.W.2d 371, relied upon in the panel opinion, this Court, without discussing the facts in the case, found that a charge which authorized a conviction upon a theory not alleged in the indictment was fundamentally defective. In making this finding, the Court cited and relied upon Smith v. State, Tex.Cr.App., 513 S.W.2d 823, where it was noted that where there was no proper objection to such an instruction, under Article 36.19, V.A.C.C.P. only fundamental error requires reversal. While it appears that this statement is correct, Smith, supra, cited and relied upon Ross v. State, Tex.Cr.App., 487 S.W.2d 744, for the proposition that "fundamental error is an error 'calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.' " 513 S.W.2d at 829. It therefore appears that Ross, supra, formulated a rule of "fundamental error" that is the same as the provision of Article 36.19, V.A.C.C.P. It is the misstatement of the rule concerning fundamental error in Robinson that this Court has blindly followed in subsequent cases without looking at the record to see whether or not the facts justify the conclusion that an erroneous charge constituted Fundamental error.

In addition to Robinson, the original opinion relies upon Davis v. State, Tex.Cr.App., 557 S.W.2d 303, which itself illustrates a blind application of Robinson devoid of factual discussion or reason. While Dowden v. State, Tex.Cr.App., 537 S.W.2d 5, cited by the panel opinion, is simply not in point on the issue of fundamental error because there was an objection urged to the charge which was erroneously overruled, it serves very well to show how the Court has misinterpreted Article 36.19 in order to arrive at an erroneous "fundamental error" rule. Article 36.19, V.A.C.C.P. provides:

"Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error Appearing from the record was calculated to injure the rights of defendant, or Unless it appears from the record that the defendant has not had a fair and impartial trial." (Emphasis added.)

In answering the dissent in Dowden the majority added a footnote from which it concludes that Article 36.19, upon which the dissent relied, refers to those cases in which the defendant disregarded the requirement of written objections. Therefore, the majority concludes that the test for review set out in Article 36.19 is the test to be applied only where there is no written objection to the court's charge. An examination of the case cited, Echols v. State, 75 Tex.Cr.R. 369, 170 S.W. 786, and other authorities, reveals that they simply will not support such a conclusion. In Echols, supra, it was pointed out that

"It is just such cases as this that caused the Legislature to amend Article 723, now 743, of the Code of Criminal Procedure, and provide that the errors in the charge should not be cause for reversal, unless objected to when presented to counsel for their inspection. Errors of the character now complained of in the charge were under the old law raised in the motion for a new trial, and this court, because of such matters, felt impelled to reverse the case. The Legislature desired to correct what it considered an evil, and said this court should not reverse under such circumstances, and should not consider such grounds on appeal when the trial court's attention was not called to such matters before the charge was read to the jury."

170 S.W. at 791, 792.

In even a clearer expression of legislative intent the same judge who wrote the Echols opinion said in Wright v. State, 73 Tex.Cr.R. 178, 163 S.W. 976:

"Old Article 743 reads before amendment that the 'error' in the charge must 'be excepted to at the time of the trial, or on a motion for a new trial.' In amending and re-enacting this provision of the Code, the words 'or on motion for a new trial' were omitted from this article. So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the charge, if error there be, unless it was excepted to at the time of the trial, And not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." (Emphasis added.)

163 S.W. at 977.

This interpretation of legislative intent was further clarified on the motion for rehearing in Wright, supra, where the Court noted that the practice at the time by some lawyers was to let the trial court take care of itself and hope that they could catch the trial judge in error in the charge and assign it on a motion for new trial in case a conviction was had. In noting that this was not fair to the trial court and that such a day had passed in Texas...