Govan v. State

• Decision Date: 09 January 1985
• Docket Number: No. 189-84,189-84
• Citation: 682 S.W.2d 567
• Parties: Tony O'Neal GOVAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 567

682 S.W.2d 567

Tony O'Neal GOVAN, Appellant, v. The STATE of Texas, Appellee.

No. 189-84.

Court of Criminal Appeals of Texas En Banc.

Jan. 9, 1985.

Robert Udashen, Dallas, for appellant.

Henry Wade, Dist. Atty. and Deborah E. Farris, Andy Beach and Knox Fitzpatrick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. See V.T.C.A. Penal Code, Sec. 29.02(a)(2). Punishment was assessed by the trial court at confinement in the Texas Department of Corrections for a term of twenty-five years. Appeal was taken to the Dallas Court of Appeals, which affirmed appellant's conviction in an unpublished opinion. See Govan v. State, No. 05-82-01132-CR, delivered December 29, 1983 (Tex.App.Dallas). This Court granted Appellant's Petition for Discretionary Review to determine whether the court below erred in affirming the trial court's decision to overrule appellant's objection that the trial court's charge to the jury failed to apply the law of parties to the facts of the case. Although we disagree with the rationale applied below, we agree with the result reached and affirm.

As will become apparent, a brief recitation of the facts is necessary. The named victim in the indictment, Becky Shelberg, testified that on February 11, 1982, she was attending a Bible School in Dallas and around 12:00 p.m., she and a friend, Brad Schofield, went to a Pizza Inn to get some lunch. A short time later, Shelberg testified that two black males took a booth directly behind her and Schofield, and that one of the black males went to the rest room. Subsequently, the black male who had entered the rest room came toward Schofield and said, "Give me your wallet." Schofield responded that he did not have any money, but the assailant persisted in getting Schofield's wallet. Shelberg testified that the next thing she recalled was the other black male placing a revolver to her head and stating, "Give me your purse." Shelberg complied out of fear of imminent bodily injury or death. Shelberg then observed the appellant unzip her purse, rummage through it, get her wallet, and say, "Don't you look at us, don't you dare scream, look down." Thereafter, the suspects departed the Pizza Inn. Shelberg testified that a few days later, she received some of her stolen identification in the mail, but did not recover five dollars taken from the wallet.

At a consolidated trial, at which appellant was tried for the aggravated robbery of Shelberg, while appellant's co-defendant was tried for the robbery of Schofield, Shelberg positively identified appellant as her only assailant. [emphasis added.] Additionally, appellant gave a written statement to the police admitting his complicity in the robbery of Shelberg.

The trial court instructed the jury, in the abstract portion of the charge, with respect to the law of parties found in V.T.C.A. Penal Code, Secs. 7.01(a) and 7.02(a)(1). Additionally, in the application paragraph of the charge, the trial judge, inter alia, instructed the jury that they could find appellant guilty if they found he was "acting alone or as a party as that term is defined herein," but did not apply the law of parties to the facts of the case.

The trial judge heard objections and exceptions to the court's charge in chambers. The critical objection made in the case sub judice was tendered by the attorney for the appellant's co-defendant and adopted by appellant's attorney on behalf of appellant, see Woerner v. State, 576 S.W. 2d 85 (Tex.Cr.App.1979), viz: "And our third objection, Your Honor, is that the Court has failed to specifically apply the law of parties to the facts in this case." [emphasis added.]

The Court of Appeals, relying upon Bilbrey v. State, 594 S.W.2d 754 (Tex.Cr.App.1980), held that "the objection was not specific enough to apprise the court of what is complained of and nothing is presented for review." We believe this reliance is misplaced. In Bilbrey, supra, the defendant's objection to the jury charge was merely that "the court's charge fails to adequately apply the law to the facts." [at pg. 756.] This objection would certainly not be sufficient under Art. 36.14, V.A.C.C.P. and the cases annotated thereunder, because the trial judge would have no clue as to what "law" the defendant was referring. In the instant case, however, the appellant specifically objected to the application of the law of parties to the facts of the case. We find the holding in Bilbrey to be inapposite, and hold that appellant's objection was sufficient to preserve error under Art. 36.14, supra.

Having found that appellant's objection preserved error, if any, we turn to the appellant's pivotal contention that "the court's charge authorized the jury to convict the Petitioner of being a party to this offense without any concrete delineation of how the law of parties applied to the particular facts of this case," [appellant's brief at pg. 11] and, therefore, reversible error was committed. To support this contention, appellant cites us to and relies upon Apodaca v. State, 589 S.W.2d 696 (Tex.Cr.App.1979) and Rasmussen v. State, 608 S.W.2d 205 (Tex.Cr.App.1980).

In Apodaca, supra, the defendant was riding as a passenger in a car driven by a co-defendant named Lewis. An argument ensued between Lewis and the deceased. The deceased drove away in his truck and Lewis chased him. Lewis and the defendant chased the truck on the highway at high rates of speed. During the chase, defendant Apodaca leaned out of Lewis' car and beat on the deceased's truck with a tire tool. The deceased was ultimately killed when Lewis' truck struck the car and ran it over a guard rail. Apodaca was indicted for murder, but convicted of voluntary manslaughter. The State's theory of the case was that Apodaca was criminally responsible for the acts of Lewis in causing the wreck which killed the deceased. As in the instant case, the trial judge charged the jury in the abstract on the law of parties, but instructed the jury in the application paragraph as if Apodaca were a principal actor, and, in fact, never made reference to parties. The trial court expressly overruled a written requested charge from the defendant that would have applied the law of parties to the facts of the case. This Court held that such action by the trial judge was reversible error, noting that:

"No evidence in the instant case supported submission of the case on the theory that the appellant was the primary actor. The State's theory of prosecution in the instant case was that the co-defendant, Lewis, as the driver of the car, was the principal actor and that appellant was guilty, if at all, as a party because he solicited, encouraged, directed, aided or attempted to aid the co-defendant Lewis." at pg. 698 [emphasis added.]

Similarly, in Rasmussen, supra, defendant, his younger brother, and a third co-defendant were involved in a transaction whereby a controlled substance was sold to police officers, the negotiation and transfer being actually handled by defendant's younger brother. The record demonstrated that when the three co-defendants noticed a marked police car in the area, the defendant exclaimed, "Let's get out of here." Again, as in Apodaca, supra, the trial judge charged the jury in the abstract on the law of parties, but refused defendant's requested instruction applying the law of parties to the facts of the case. In Rasmussen, this Court held:

"Like Apodaca, the instant case presents no support for submission on the theory that appellant was the primary actor." at pg. 208.

The State, through its State Prosecuting Attorney, contends in its reply brief that neither Apodaca nor Rasmussen apply to the facts in the instant case. The State points out, and same is reflected in the record, that appellant, in the instant case, was indicted individually for the aggravated robbery of Becky Shelberg. The evidence is clearly sufficient that appellant Govan committed the robbery of Shelberg as a principal actor. The robbery of Schofield was committed by appellant's co-defendant. Thus two separate robberies were committed against two separate victims by appellant Govan and his co-defendant.

With this premise in mind, the State contends that appellant's conviction did not depend upon the application of the law of parties and that the unnecessary inclusion of the abstract definition of the law of parties and the addition of the phrase "acting alone or as a party as that term is defined herein" to the application paragraph of the jury charge was harmless error.

In support for its position, the State refers us to two cases that predate the 1973 Penal Code, but which are nevertheless instructive. In Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974) this Court held:

"Under the evidence, a charge on principals was not required, since the evidence is sufficient to support a finding that appellant unlawfully possessed the marihuana. [footnote omitted.]--

"In light of the evidence of appellant's personal possession and the court's instructions, the inclusion of the abstract statement of the law of principals was harmless error." at pg. 934.

In Hannon v. State, 475 S.W.2d 800 (Tex.Cr.App.1972), quoting from Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (Tex.Cr.App.1929), this Court stated:

"When the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on principals would be necessary, although the proof may also disclose that in doing the criminal act another took an equal part.----

"However, we fail to see how a charge on the law of principals would be calculated to injure the rights of the appellant in the instant case. The court's charge made appellant's guilt depend upon the finding that he ...