Dowden v. State

• Decision Date: 20 April 1976
• Docket Number: No. 51124,51124
• Citation: 537 S.W.2d 5
• Parties: Charles R. DOWDEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 5

537 S.W.2d 5

Charles R. DOWDEN, Appellant, v. The STATE of Texas, Appellee.

No. 51124.

Court of Criminal Appeals of Texas.

April 20, 1976.

Rehearing Denied June 9, 1976.

Marlin Thompson, Orange, for appellant.

Jim Sharon Bearden, Dist. Atty., and Patrick A. Clark, Asst. Dist. Atty., Orange, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for aggravated robbery. Punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life imprisonment.

It is only necessary to consider the ground of error in which appellant correctly contends that the trial court's charge upon the guilt or innocence stage of the trial presents reversible error. In paragraph six of said charge, the trial court instructed the jury as follows:

'Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Charles R. Dowden, on or about the 28th day of June, 1974, in the County of Orange, State of Texas, as alleged in the indictment, did then and there and while in the course of committing theft and with the intent to obtain property of Doug Storey, to wit, United States Currency, without the effective consent of said Doug Storey, and with intent to deprive the said Doug Storey of said property, Defendant then and there by using and exhibiting a deadly weapon, to-wit, a gun, intentionally or knowingly, or recklessly, place Doug Storey in fear of imminent bodily injury or death, you will find the defendant guilty of the offense of aggravated robbery and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'Not Guilty."

In timely filed written objections ¹ to the court's charge, appellant objected to the use of the word 'recklessly' in this portion of the charge. ² The overruling of this objection presents reversible error in that the charge authorized the jury to find appellant guilty of aggravated robbery for conduct that does not constitute such offense under V.T.C.A. Penal Code, Secs. 29.02 and 29.03. Section 29.03 provides that a person commits aggravated robbery if he commits robbery as defined in Sec. 29.02 and uses or exhibits a deadly weapon. Sec. 29.02 provides:

'(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:

'(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

'(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.'

The statutes do not authorize a conviction for robbery if the proof only shows that a person Recklessly placed another in fear of imminent bodily injury or death, and yet the court's charge here authorized a finding of guilt upon precisely that finding.

It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397); the indictment alleged such conduct (Venzor v. State, supra; 31 Tex.Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch's Ann.P.C. (2d ed.), Sec. 2603 at 32). In the instant case none of these requirements of due process of law were met because the trial court authorized the jury to find appellant guilty upon a set of circumstances that could not constitute the offense charged. Accordingly, the judgment must be reversed.

Appellant also complains that in the first two paragraphs of the charge the court quoted the entirety of V.T.C.A. Penal Code, Secs. 29.01 and 29.02, including portions thereof that were neither pled in the indictment nor supported by the proof at trial. This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. E.g., Griffith v. State, 142 Tex.Cr.R. 559, 155 S.W.2d 612; see Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Simons v. State, Tex.Cr.App., 34 S.W. 619; cf. Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10. We reiterate that admonition.

The judgment is reversed and the cause is remanded.

DOUGLAS, Judge (dissenting).

The majority reverses this conviction because the court instructed the jury that it could find appellant guilty of robbery if it found that he used a gun and 'intentionally or knowingly, or Recklessly, place Doug Storey in fear of imminent bodily injury or death. . . .' The Legislature has provided that this Court should not reverse for errors in a charge to the jury unless the error was calculated to injure the appellant. See Article 36.19, V.A.C.C.P., which provides, in part, that where the requirements of Articles 36.14, 36.15 and 36.16, V.A.C.C.P., relating to court's charge have been disregarded '. . . (t) he 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 . . .', and the cases there cited.

Let us look at the evidence in the present case to see if reversible error was committed. Douglas Lee Storey, an employee of Lynn's Sak-N-Pak Store in Orange, testified that a man came into the store after midnight...