Davis v. State, 53247

• Decision Date: 02 November 1977
• Docket Number: No. 53247,53247
• Parties: Lonnie Wayne DAVIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 303

557 S.W.2d 303

Lonnie Wayne DAVIS, Appellant, v. The STATE of Texas, Appellee.

No. 53247.

Court of Criminal Appeals of Texas.

Nov. 2, 1977.

Will Gray, Houston, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. As enhanced, the punishment was assessed by the jury at 30 years' confinement in the Texas Department of Corrections.

The record reflects that appellant and two companions robbed at gunpoint the proprietor of a pool hall and domino parlor in Houston.

By supplemental brief, appellant urges fundamental error in that the charge ". . . authorized a conviction under every conceivable theory under V.T.C.A. Penal Code, Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment." Appellant argues that our recent decision in Robinson v. State, 553 S.W.2d 371 (delivered July 13, 1977), is controlling. We agree and reverse.

Omitting the formal parts, the indictment in the case at bar alleged that the appellant

". . . did then and there while in the course of committing theft of one watch and money owned by Paul Schiro, hereafter styled the Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place 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

"Now if you find from the evidence beyond a reasonable doubt that on or about the 12th day of January, 1975 in ______ County, Texas, the defendant, did, without the effective consent of Paul Schiro the owner, take and exercise control over the corporeal personal property of Paul Schiro to-wit, one watch and money from the possession of Paul Schiro with intent then and there to deprive Paul Schiro of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said watch and 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 Paul Schiro or 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.

"If you find from the evidence that the defendant committed the offense of robbery, as herein defined, but you have a reasonable doubt as to whether he caused serious bodily injury to Paul Schiro or as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery, and not of aggravated robbery.

"If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, then you will acquit the defendant and say by your verdict not guilty."

As can be seen, the indictment alleged robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), by alleging that the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death. The indictment then alleged the aggravating factor "by using and exhibiting a deadly weapon, namely, a pistol." V.T.C.A., Penal Code, Section 29.03(a)(2).

The instant indictment and charge are practically identical to those in Robinson, supra. In Robinson, we held

"This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found, beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further, the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A., Penal Code, Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment."

Accord Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr.App.1976), and the other authorities cited in Robinson, supra.

Because of the fundamental error we recognize, we need not discuss appellant's other grounds of error.

The judgment is reversed and the cause is remanded.

DOUGLAS, Judge, dissenting.

The majority reversed this conviction because the charge permitted the jury to find appellant guilty of aggravated robbery under a theory not alleged in the indictment. Article 36.19, V.A.C.C.P., governing errors in the charge, provides in part that ". . . the judgment shall not be reversed unless the error appearing from the record was calculated to injure the...