Brown v. State

• Citation: 716 S.W.2d 939
• Decision Date: 26 February 1986
• Docket Number: No. 445-84,445-84
• Parties: Charles Ray BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 939

716 S.W.2d 939

Charles Ray BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 445-84.

Court of Criminal Appeals of Texas En Banc.

Feb. 26, 1986.

Arch C. McColl, III, S. Michael McColloch, David W. Coody, Dallas, for appellant.

Henry Wade, Dist. Atty. and Gregg Long, Jeff Hines, and Theodore Beach, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant, though separately indicted, was jointly tried with co-defendant Charles Ray Calahan and was found guilty of aggravated robbery by the jury, who assessed appellant's punishment at 80 years' imprisonment and a fine of $5,000.00.

On appeal the Dallas Court of Appeals reversed and remanded the cause, finding the trial court erred in failing to apply the law of parties to the facts in its charge as urged by the appellant in his fourth ground of error. The court further found the evidence was sufficient for the jury to conclude that the robbery was committed by the use of a knife, a deadly weapon. The Court of Appeals also concluded that a deferred adjudication order placing appellant on "probation" was admissible at the penalty stage of the trial under Article 42.12, § 3d(c), V.A.C.C.P. See Brown v. State, 668 S.W.2d 470 (Tex.App.--Dallas 1984). Justice Stephens agreed with the reversal based on the court's charge, but dissented to the court's action on the other two contentions.

We granted the State's petition for discretionary review to consider the correctness of the Court of Appeals' ruling on the charge to the jury. We also granted appellant's petition for discretionary review to determine the correctness of the rulings that the evidence was sufficient to show the knife was a deadly weapon and the admissibility of the deferred adjudication order.

The facts here become important. Tom Meyer, age 20, related that late in the evening of July 23, 1982, he was seated on the hood of his car in the parking lot of the Debonair Danceland nightclub in Dallas County. He and his girlfriend had just had an argument, had ended their relationship, and she had reentered the club. While drinking a beer and smoking a cigarette, Meyer was approached by three black men, the tallest of whom asked for a light. Meyer handed the man his cigarette. When the cigarette was returned, the man sat down next to Meyer and placed a knife in Meyer's left side telling him not to move. One of the shorter men then placed a knife to Meyer's right side, while the other shorter man held a gun to his side as well. The taller man told Meyer to be "cool" and took his wallet and car keys while the weapons were held on him. The two shorter men then escorted Meyer to the passenger side of his automobile where he got in the front seat. The two shorter men got in the back. The one in the back on the right side held a knife to Meyer's side while the other man in the rear seat held a gun to the back of Meyer's head. The taller man drove the car for several miles until they reached an underpass, where the driver got out. On direct examination Meyer testified:

"Q This is the tall guy now?

"A Yes, and he told Little Pete, one of them in the back, to drive, to go up to the turn and turn around and come back and stop, and we did.

"He got in and the one on the right side kept a knife to my side, and another one got in the driver's seat and drove up, and we turned around and came back under the underpass and stopped in the median, a grass median.

"Q Where was the tall guy at this time?

"A He is standing in the median.

"Q So, he had just gone a half a block or so without him?

"A Yes.

"Q And came right back to where he was?

"A Yes.

* * *

* * *

"A The original driver walked around to my side and opened the door. The guy in back unlocked the door. He opened the door and grabbed me and pulled me out, and then the other two got out, and all three of them took me over under the underpass, told me to lay face down first with my hand behind my back." (Emphasis supplied.)

Meyer was "hog tied" with rope with his hands and feet tied behind his back and a rope around his neck, so that when he struggled the rope would tighten. The rope was tightened around his neck and he lost consciousness. When Meyer awoke, the three men had driven off in his car. He finally struggled and freed himself. Some teenagers picked him up and took him to a police station where he reported what had happened.

In the early morning hours of July 27, 1982, appellant Brown and Guss Ross (later identified as the taller man) were arrested in the possession of Meyer's car.

Appellant's extrajudicial confession was introduced which showed he was with Ross and "Little Pete" (shown to be co-defendant Calahan) on the evening in question, that " 'Little Pete' put his knife on the white dude when we walked up on him," that Ross drove the car to a place where appellant got some rope and "we all tied the white dude up" and "the white dude gave 'Little Pete' and Ross his money."

After the car was recovered, Meyer and his father went to the police pound to claim the car, and found a pistol and a knife in the car which had not been there before the alleged robbery.

Meyer testified it was dark and he could not identify any of the three men who robbed him. He did state that appellant and co-defendant Calahan were the same height as the two shorter men, who later sat in the back of the car.

Co-defendant Calahan's extrajudicial confession was introduced in which he sought to cast the appellant as the primary actor in the robbery. His confession can only be used against him, and cannot be considered against the appellant.

We do know from the State's evidence that the taller man involved in the robbery was Ross, that the shorter man in the rear seat with a gun, and who later turned the car around at the underpass, was "Little Pete," the co-defendant. Thus, the other man who placed the second knife to Meyer's side while he sat on the car hood, and who continued to hold the knife on him in the car, was the appellant.

V.T.C.A., Penal Code, § 7.01, provides:

"(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

"(b) Each party to an offense may be charged with commission of the offense.

"(c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice." (Emphasis added.)

V.T.C.A., Penal Code, § 7.02, provides in part:

"(a) A person is criminally responsible for an offense committed by the conduct of another if:

"(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

"(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

"(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

"(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy."

"This section establishes four tests under which a person may be convicted of an offense committed by another because of complicity in the commission of the offense." Practice Commentary to § 7.02, Searcy and Patterson.

It was the State's theory of the prosecution that the appellant was criminally responsible for the commission of the aggravated robbery as charged by his own conduct, and if not, certainly by the conduct of another, or by both his own conduct and the conduct of another. See V.T.C.A., Penal Code, § 7.01(a); 18 Tex.Jur.3rd, Criminal Law, § 146, p. 206; McCormick and Blackwell, Texas Practice, Texas Criminal Forms and Trial Manual, § 84.01, p. 301.

The trial court instructed the jury abstractly on the law of parties. See V.T.C.A., Penal Code, §§ 7.01(b) and 7.02(a)(2). In another part of the charge to the jury the court gave the following instruction:

"Now if you find from the evidence beyond a reasonable doubt that on or about the 23rd day of July, 1982, in Dallas County, Texas, the defendant, Charles Ray Brown, either acting alone or as a party, did unlawfully, then and there while in the course of committing theft and with intent to obtain or maintain control of the property of Tom Meyer, hereinafter called complainant, the said property being current money of the United States of America, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife, knowingly and intentionally threaten and place the said complainant in fear of imminent bodily injury, then you will find the defendant guilty of aggravated robbery.

"If you do not so believe or you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'not guilty.' " (Emphasis supplied.)

The appellant orally objected to the court's charge:

"We would also object to the court's charge, Your Honor, on the grounds that it fails to apply specifically the law of parties to the facts in this case.

"We would further object to the court's charge because it does contain the law of parties and we further...."

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