Broussard v. State, 63073
Decision Date | 20 October 1982 |
Docket Number | No. 63073,63073 |
Citation | 642 S.W.2d 171 |
Parties | Jude Walter BROUSSARD, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for the offense of robbery. The punishment was assessed at imprisonment for twenty years and payment of a $2,500 fine.
The appellant and Jackie Ray Osteen were indicted for capital murder. They were tried together and Osteen was found guilty of capital murder and sentenced to death. See Osteen v. State, 642 S.W.2d 169 (Tex.Cr.App.1982). The jury found the appellant guilty of robbery.
The appellant, in his only ground of error, contends that the trial court erred in instructing the jury that they were authorized, if the evidence so reflected, to return a verdict of guilty for the offense of robbery in the event that they acquitted the appellant of capital murder. The appellant apparently argues the inclusion of this jury instruction was fundamental error because the offense of robbery was not a lesser included offense of capital murder. Thus, there was no valid indictment before the trial court charging robbery and the trial court was without jurisdiction to convict the appellant of robbery. While most capital murder defendants would prefer inclusion of this jury charge, the appellant seeks its exclusion. See Wright, Federal Practice and Procedure, Sec. 515, n. 54. We, however, conclude that the trial court did not err in this case by so charging the jury.
Section 19.03 of the Texas Penal Code in part states that a person commits the offense of capital murder if that person intentionally commits the murder in the course of committing or attempting to commit the offense of robbery. The statute further provides that if a jury does not find a defendant guilty of an offense under this section, the defendant may be convicted of murder or any other lesser included offense. Sec. 19.03(c), supra.
Article 37.09, V.A.C.C.P. provides in pertinent part:
Whether an offense is a lesser included offense of the offense charged will be determined on a case-by-case basis. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976) (Opinion on Rehearing). In Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976), we held that robbery was not a lesser included offense of capital murder "simply because it was incumbent on the State to prove the element of robbery in establishing capital murder..." It is possible that the proof necessary to establish the element "in the course of committing robbery" would not be sufficient to establish proof of a completed robbery. However, this does not mean that robbery or the other offenses outlined in Penal Code, V.T.C.A., Section 19.03(a)(2) can never be lesser included offenses of capital murder. It is not a question of whether or not the offense charged is capable of being established on some theory that does not show the lesser included offense. Rather, the issue is whether or not the State, in each case, when presenting its case to prove the offense charged, also includes the lesser included offense. Campbell v. State, 571 S.W.2d 161 (Tex.Cr.App.1978); Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979).
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