Doyle v. State

• Decision Date: 19 November 1980
• Docket Number: No. 59065,No. 2,59065,2
• Citation: 631 S.W.2d 732
• Parties: Charles Ray DOYLE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 732

631 S.W.2d 732

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

No. 59065.

Court of Criminal Appeals of Texas, Panel No. 2.

Nov. 19, 1980.

On Rehearing April 28, 1982.

Thomas P. Roebuck, Jr., Port Arthur, for appellant.

James S. McGrath, Dist. Atty. & John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for unlawful possession of a firearm by a felon. V.T.C.A. Penal Code, § 46.05. Punishment, enhanced by two prior felony convictions, is imprisonment for life.

Appellant challenges the State's proof of the two enhancement convictions. The sufficiency of the evidence to sustain the conviction is not challenged. In the interest of justice, however, we note fundamental error in the court's charge, and reverse appellant's conviction on that ground.

The indictment in this case alleged that appellant knowingly and intentionally possessed a firearm away from the premises where he lived, having previously been convicted of burglary, a felony offense involving an act of violence to property.

In applying the law to the facts, the court charged the members of the jury that they should convict appellant if they found that he:

... was a person who had been convicted of a felony involving violence to property, namely Burglary on February 10, 1969, in the Criminal District Court of Jefferson County Texas in cause # 27436, and who possessed a firearm away from the premises where he lived The charge failed to require the jury to find that appellant had a culpable mental state when he engaged in the conduct that constituted the offense. A culpable mental state is required to establish an offense under § 46.05, supra. Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977); V.T.C.A. Penal Code, § 6.02. The failure to include an essential element of the offense in the charge applying the law to the facts is fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1978); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978). A required culpable mental state is an essential element of the offense and must be included in the charge. West, supra. ¹ Appellant's conviction cannot stand.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge, dissenting.

The charge should be viewed as a whole and review should not be limited to parts of the charge standing alone. Daniel v. State, 486 S.W.2d 944 (Tex.Cr.App.1972); Cain v. State, 154 Tex.Cr.R. 284, 226 S.W.2d 640 (1950).

In McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972), we were confronted with the contention that the following charge removed all "elements of scienter" from the jury's consideration:

" 'Now bearing in mind the foregoing definitions and instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Forrest Edward McCary, Jr., did on or about the 27th day of November, 1968, as alleged in the indictment, in the County of Dallas and State of Texas unlawfully possess State's Exhibit No. 7, and that State's Exhibit No. 7 contained heroin, then you will find the defendant guilty as charged in the indictment 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." ' "

Reading the charge as a whole, we failed to find reversible error.

In Rivas v. State, 496 S.W.2d 600 (Tex.Cr.App.1973), although the paragraph of the charge applying the facts to the law omitted the element of voluntariness, we affirmed the conviction because the definition of murder in the court's charge included that element.

In the instant case, the court's charge, in defining possession, limits voluntary possession to cases in which the possessor acts knowingly:

"Possession means actual care, custody, control or management. Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control."

The charge then proceeds to define knowingly.

We should hold that, considered as a whole, the charge adequately defined the issues and protected appellant's rights.

The judgment should be affirmed.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

TEAGUE, Judge.

On original submission, a panel of the Court, with one judge dissenting with opinion, ruled that it was fundamental and reversible error for the trial court to have omitted from the application of the law to the facts paragraph of the charge to the jury the culpable mental state of either intentional or knowing. ¹

We granted the State's Motion for Rehearing to reconsider the panel's holding.

Although the definition of the offense of unlawful possession of a firearm by a felon, ² which was the offense the appellant was charged with committing, does not by its definition prescribe a culpable mental state, nevertheless, one is required by the provisions of V.T.C.A. Penal Code, Sec. 6.02. ³ See also Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977).

The State in this cause, in its charging instrument, alleged not one but two culpable mental states; intentionally and knowingly. However, the trial court did not include in its application of the law to the facts paragraph of the jury charge either of the culpable mental states.

The State argues that this is without significance because when the trial court "perfectly" defined in the abstract the word "possession," this eliminated the necessity of again setting forth a culpable mental state in the application of the law to the facts paragraph of the charge. It argues, as does the dissent, that this inference is mandated because of the general rule that the charge should be viewed as a whole. We disagree. ⁴

It is axiomatic that when required elements of an offense are omitted from a charging instrument, such omissions will render a conviction fatally defective. See Tew v. State, supra; Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

We believe that it logically follows that when a trial court omits from the application paragraph of the charge required elements of an offense, this also will render a conviction fatally defective. To rule otherwise, we believe, would permit and allow our trial courts to state in a jury charge abstract definitions of legal terms and principles of law, without the necessity of applying those principles and terms to the very facts of the case. We further believe that to uphold such a rule of law could lead to the destruction of our jury system. We decline to take the first step which could lead to the jury system's demise.

Abstract definitions of legal terms, words, and phrases in a jury charge are of extreme importance to a jury's understanding of the law of the case. However, standing alone, abstract definitions are like words found in a dictionary. They are useless until correctly used in a sentence. Recently, in Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.1978), the Court stated:

The Court's abstract instructions on the law-defining 'unlawful control,' 'effective consent,' 'deception' and 'deprive'-are not sufficient to remedy the deficiency in that portion of the charge which applies the law to the facts of the case. The State also is incorrect in asserting that the charge is proper because it requires the jury to find that the appellant's exercise of control over the property was 'as set forth in the indictment,' and the indictment includes the element 'without the effective consent of the owner.' Were this the law, there would never be any need for a charge beyond requiring the jury to find that the defendant committed the offense as set forth in the indictment. See United States v. Bosch, 505 F.2d 78 (5th Cir. 1974); People v. Lewis, 112 Ill.App.2d 1, 250 N.E.2d 812 (1969). Id. at 652.

See also Mendoza v. State, 577 S.W.2d 240 (Tex.Cr.App.1978).

To understand our unique and historical system of trial by jury, it is crucial that one first understand that the trial judge and the jury each have certain independent responsibilities to perform. If the trial court fails to instruct a jury on the law, and on the law as applied to the facts, a jury cannot perform its function of being the exclusive judge of the facts. See Art. 36.13, V.A.C.C.P.

We further believe that the Legislature of this State has commanded this Court, see Art. 36.19, V.A.C.C.P., ⁵ which Court is the final arbiter of criminal appeals in this State, see Art. 5, Sec. 5, Texas Constitution, to review in all appeals to this Court the charge to a jury. In each case appealed to this Court, the above statute implicitly requires that we are to make the determination whether or not there is error of omission or commission in a jury charge, and if we find there is, we must then make the determination whether or not the error was calculated to injure the rights of the defendant, and also determine, if such error exists, whether or not it prevented the defendant from receiving a fair and impartial trial. Just as it is the sole responsibility of a trial judge, and no other, to prepare a proper and correct charge for a jury, it is this Court's legal duty not to let fundamental error in a charge go unnoticed. This has been the law in Texas for over 100 years. See Smith v. State, 7 Tex.Ct.Rep. 382, 383 (1879).

As late as 1980, this Court stated in Ex parte Clark, 597 S.W.2d 760, 761 (Tex.Cr.App.1980).

... We have held that the total failure of the court's charge to apply the law to the facts infringes two areas of the state and federal constitutions. First, it 'goes to the very basis of the cases' and denies 'the fair and impartial trial to which (defendants) are entitled under the federal and state Constitutions'; that is, under the due process provisions of the Fourteenth Amendment...