Davis v. State
| Decision Date | 11 February 1976 |
| Docket Number | No. 50942,50942 |
| Citation | 532 S.W.2d 626 |
| Parties | Billy Wayne DAVIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
W. John Allison, Jr., Dallas, on appeal only, for appellant.
Henry Wade, Dist. Atty., Steve Wilensky and Dan Garrigan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for aggravated robbery. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty years. The indictment alleged the offense occurred on or about September 26, 1974, and the record reflects that trial was in February, 1975.
In his first two grounds of error, appellant contends that the court erred in failing to quash the indictment because the indictment did not allege that the property taken in the robbery was without effective consent and failed to aver ownership of the property taken in the robbery.
Appellant's position is bottomed on the theory that aggravated robbery is the most aggravated form of theft and in support of this position points to V.T.C.A. Penal Code, Sec. 29.02 defining robbery, which begins by stating, 'A person commits an offense if, in the course of committing theft as defined in Chapter 31 . . ..' Appellant reasons that the elements of theft set forth in V.T.C.A. Penal Code, Sec. 31.03 necessarily become elements of the offense of robbery and must be alleged in the indictment.
The decisions of this Court in Earl v. State, 514 S.W.2d 273 and Reese v. State, 531 S.W.2d 638 (1976) 1 are adverse to appellant's argument. In Earl and Reese, it was stated:
'Although the proof (in a robbery case) will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Secs. 31.02 and 31.03, V.T.C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code), need not be alleged in the indictment.'
Further, Art. 21.13, V.A.C.C.P. provides:
'An indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense.'
We find no error in the court's failure to quash the indictment for failure of the aggravated robbery indictment to allege certain elements of the offense of theft.
Appellant contends the court erred in permitting the State to amend the indictment by striking certain words within the indictment.
The pertinent portion of the indictment before amendment recited that appellant did
'then and there, while in the course of committing theft of one automobile, Four Hundred Fifty Dollars ($450.00) current money of the United States of America, hereinafter called 'the Property' from William T. Miller with intent to obtain and maintain control of the property, and by using and exhibiting a deadly weapon, namely a knife knowingly and intentionally threaten and place William T. Miller in fear of imminent bodily injury and death.'
The record reflects that appellant filed a motion to quash in which it was contended that the indictment was ambiguous in that he was unable to tell whether he was charged with taking an automobile worth $450.00, an automobile and $450.00 in currency or only $450.00 in currency. An order by the court reflects that the The following was deleted from the indictment, 'Four Hundred Fifty Dollars ($450.00) current money of the United States of America.' 2
Appellant urges that the portion stricken from the indictment was a matter of substance and could not be deleted. Article 28.10, V.A.C.C.P. provides:
It is not contended that the amendment in question did not come before announcements of ready at the trial on its merits.
In Bowie v. State, Tex.Cr.App., 401 S.W.2d 829, relied on by appellant, a conviction for burglary was held void where the trial court had reduced an indictment charging burglary of a private residence at night to burglary on the motion of the district attorney. The effect of the trial court's action in granting the district attorney's motion in Bowie was to change the offense charged in the indictment since burglary (as defined in Arts. 1389 and 1390, V.A.P.C.) and burglary of a private residence at night (as defined in Art. 1391, V.A.P.C.) are distinct and separate offenses. Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228.
When not descriptive of that which is legally essential to the validity of an indictment or information, unnecessary words may be rejected as surplusage. Collins v. State, Tex.Cr.App., 500 S.W.2d 168; Cohen v. State, Tex.Cr.App., 479 S.W.2d 950; Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29.
In Burrell v. State, 526 S.W.2d 799, this Court recognized the foregoing rule relative to unnecessary words in an indictment being rejected as surplusage, but noted:
'There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it must be proven as alleged, even though needlessly stated. See 13 Texas Law Review 489 (note); 1 Branch's Ann.P.C., 2d ed., Sec. 518, pp. 491--498, and cases there cited.
In the instant case, it was not necessary for the indictment charging robbery to allege the items taken 'while in the course of committing theft.' Earl v. State, supra. The question then becomes one of whether having alleged the items of property taken it became necessary for the State to prove same.
In a robbery prosecution it is not necessary to prove that all the property alleged was taken. Proof that any part thereof was taken is sufficient. Sirls v. State, Tex.Cr.App., 511 S.W.2d 55; Smallwood v. State, Tex.Cr.App., 464 S.W.2d 846; Hoover v. State, Tex.Cr.App., 390 S.W.2d 758. While the foregoing cases were decided under the old Penal Code, we perceive no difference in this respect under the new Penal Code. It follows that in the instant case it was not necessary to prove that both the 'automobile' and 'Four Hundred Fifty Dollars ($450.00) current money of the United States' were taken. Proof that either was taken would suffice.
Numerous cases are reviewed in Burrell which address the subject of what is a matter of form and what is a matter of substance. In the early case of Wade v. State, 52 Tex.Cr.R. 619, 108 S.W. 677 (1908), it was stated:
'This question of requiring the state to prove the particular unnecessary description is so familiarly known to the profession and to the jurisprudence that we deem it unnecessary to cite authorities.'
In Wade, it was held error to amend the indictment by deleting certain dates upon which a court order was published which created the local option law the defendant was charged with violating. In McDonald v. State, 138 Tex.Cr.R. 610, 137 S.W.2d 1046 (1940), the amendment to the indictment reduced the State's burden of proof from gross negligence to ordinary negligence and constituted an amendment of substance. In addition, Burrell cites numerous cases which hold that an allegation of the Means used or means by which an assault was committed, though unnecessary, must be proved substantially as alleged. Arbetter v. State, 79 Tex.Cr.R. 487, 186 S.W. 769 (1916); Maxwell v. State, 66 Tex.Cr.R. 258, 145 S.W. 1190 (1912). Johnson v. State, Tex.Cr.App., 384 S.W.2d 885 (1964) held that an indictment for assault with intent to murder need not allege means used or manner of use, but when the words 'shoot at' were used in the indictment, such use did not vitiate the indictment, but the State had the burden of proving that allegation. In Burrell, this Court concluded that an amendment to an assault to murder a peace officer indictment which allowed the deletion of 'with his malice aforethought' and 'by shooting with a gun,' although unnecessary allegations, were descriptive of...
To continue reading
Request your trial
-
DeVaughn v. State
...as authority Hightower v. State, 629 S.W.2d 920 (Tex.Cr.App.1981); Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.1978); Davis v. State, 532 S.W.2d 626 (Tex.Cr.App.1976). Finally, the State urges that the law of motions to quash as it applies to capital murder is also instructive. The State subm......
-
Sattiewhite v. State
...to establish the commission of the offense it must be proven that an attempted theft or completed theft took place. Davis v. State, 532 S.W.2d 626 (Tex.Crim.App.1976); Reese v. State, supra; Earl v. State, supra. See the definition of the phrase "In the course of committing theft," V.T.C.A.......
-
Brasfield v. State
... ... Johnny was then in a white pickup truck with an adult white male whom she identified as appellant. She watched as they drove away from the filling station in the direction of Yellow House Canyon, where Johnny's body was later found ... W. E. Davis, the operator of the filling station, corroborated Hunter's testimony as did Ray Dunn, an employee of Davis. Both of these witnesses identified appellant and his white pickup truck as well as the presence therein of a small black boy ... Lubbock lawyer, Warren Goss, without ... ...
-
Watson v. State
... ... Glasper v. State, supra. The evidence was sufficient to prove all the elements of the offense ... The judgment is reversed and the cause is remanded ... Before the court en banc ... OPINION ON STATE'S MOTION FOR REHEARING ... TOM G. DAVIS, Judge ... Appeal is taken from a conviction for aggravated robbery. After finding that appellant ... Page 882 ... had previously been convicted of a felony, the jury assessed punishment at 40 years ... Officer G. N. Pruett, of the Houston Police ... ...