Hill v. State, 017-82

• Decision Date: 22 September 1982
• Docket Number: No. 017-82,017-82
• Citation: 640 S.W.2d 879
• Parties: Calvin Arthur HILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 879

640 S.W.2d 879

Calvin Arthur HILL, Appellant, v. The STATE of Texas, Appellee.

No. 017-82.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 22, 1982.

Walter J. Pink, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Alvin M. Titus and John Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

This cause is before us on the State's Petition for Discretionary Review. The Court of Appeals reversed appellant's conviction for aggravated robbery, holding that the jury charge contained fundamental error under Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.), in that the paragraph of the charge wherein the law is applied to the facts of the case failed to include the element "while in the course of committing theft." The omission of this element is permissible under Evans only where the trial judge then sets out the elements of the offense of theft. Here, the court omitted the element which designated in what manner the appropriation of property was unlawful; to-wit: "without the effective consent of the owner." Because the element "while in the course of committing theft" was omitted, the lower court should have then included all of the theft elements. Failure to do so is fundamental error for it allows the jury to convict without ensuring that all the elements of the offense are proven beyond a reasonable doubt. See also Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.); Young v. State, 621 S.W.2d 770; Rushing v. State, 621 S.W.2d 606 (Tex.Cr.App.).

The State now urges this Court to overrule the Evans line of cases and although the Court of Appeals applied Evans in reversing the conviction, that case was criticized and we were invited to reexamine the requirements of a jury charge for the offense of aggravated robbery. See Hill v. State, 625 S.W.2d 803 (Tex.App.--Houston [14th] 1981). Although we are not constrained to follow precedent, we decline to overrule Evans because reexamination of its holding results in a finding that the decision is a sound one, founded on logical reasoning.

The indictment, in pertinent part, alleges that appellant:

"did then and there unlawfully, while in the course of committing theft of property owned by PAULA CAGLE, 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 knife."

In the charge to the jury, the trial court abstractly defined the offenses of robbery, aggravated robbery and theft. The court also defined the term "appropriate" and instructed the jury that appropriation of property is unlawful if it is without the owner's effective consent.

In applying the law to the facts of the case, the trial court instructed the jury as follows:

"Now, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of February, A.D. 1979, in Harris County, Texas, the defendant, Calvin Arthur Hill, with intent to deprive Paula Cagle, the owner, of her personal property, did unlawfully appropriate from Paula Cagle said property belonging to Paula Cagle, and that the defendant, Calvin Arthur Hill, in so doing, and with intent to obtain or maintain control of said property, then and there intentionally or knowingly threatened or placed said Paula Cagle in fear of imminent bodily injury or death, if you do so find, exhibited a deadly weapon, namely, a knife, then you will find the defendant guilty of the offense of aggravated robbery, as charged in the indictment, and so say by your verdict."

The Court of Appeals correctly held that this case is controlled by Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.), wherein it was stated:

"In the instant case the terms 'theft' and 'while in the course of committing theft' were properly defined in the definitional portion of the charge. However, the court's charge did not require the jury to find that the robbery occurred while in the course of committing theft as defined in the charge in order to convict; rather, the court attempted to set out the component parts of that element. Nevertheless, as noted above, the court omitted an essential part of the element when it did not require the jury to find that appellant took or attempted to take the property without the owner's effective consent.

"A jury charge which authorizes a conviction without requiring the jury to find all of the elements of the offense charged is fundamentally defective. Thompson v. State, Tex.Cr.App., 574 S.W.2d 103; West v. State, Tex.Cr.App., 572 S.W.2d 712. We likewise hold that when in applying the law to the facts, a trial court charges a jury on the component parts of an element of the offense rather than the element itself, the charge must require the jury to find all of the parts of that element in order to convict. The jury charge in the instant case did not so require and is fundamentally defective."

In Evans this Court relied on Rider v. State, 567 S.W.2d 192 (Tex.Cr.App.), by drawing an analogy to a burglary conviction which was reversed because of a fundamentally defective charge. The indictment charged the defendant with burglary with intent to commit theft. As with an aggravated robbery charge, it is permissible for the trial judge to simply define the term "theft" abstractly in the charge and in applying the law to the facts instruct the jury that they may find the defendant guilty "if they find beyond a reasonable doubt that at the time of the offense he had the intent to commit the offense of theft as defined therein." Rider v. State, 567 S.W.2d at 195. Instead, however, the trial judge attempted to set out the elements of theft and omitted the element "without the owner's consent." In applying the law to the facts the trial judge must require that all the elements of the offense be found. If the judge chooses to omit the element "with intent to commit theft", all the component parts of theft must be applied to the facts, just as the elements of theft must be applied to the facts under Evans if the trial judge omits the element "while in the course of committing theft."

The requirement that all of the elements of theft be set out in the paragraph applying the law to the facts ¹ is further supported by caselaw enunciating the requirements of a charge in a theft case. In Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.), this Court reversed a theft conviction on a fundamentally defective jury charge. In applying the law to the facts of the case, the trial judge failed to include the element of "without the owner's effective consent." See V.T.C.A., Penal Code Sec. 31.03(b)(1). Further, it was specifically noted in Bradley that the court's abstract instructions will not remedy a deficiency in the paragraph of the charge applying the law to the facts of the case.

The argument advanced is largely based upon the dissenting opinion in Williams v. State, 622 S.W.2d 95, 96 (Tex.Cr.App.). It is contended that the charge must be read "as a whole" and that the paragraph in which the law is applied to the facts must not be read in a vacuum but must be construed in light of the abstract instructions given. It is true that in some cases in which a jury charge is challenged as being defective that the charge should be examined in its entirety. See Thomas v. State, 599 S.W.2d 812 (Tex.Cr.App.); Slagle v. State, 570 S.W.2d 916 (Tex.Cr.App.). There is also authority for the proposition that the portion of the court's charge to which we normally look in determining whether the charge is fundamentally erroneous is the part that applied the law to the facts. Thomas v. State, 587 S.W.2d 707 (Tex.Cr.App.); Jones v. State, 576 S.W.2d 393 (Tex.Cr.App.). In other words, in those cases which rely on the rule that the charge be examined as a whole, the issue presented was not one of fundamental error for failure to include all elements of the offense. See Slagle, supra. In White v. State, 610 S.W.2d 504 (Tex.Cr.App.), this Court considered an allegation of fundamental defect by viewing the charge "as a whole," but specifically distinguished a case relied on by the defendant wherein a conviction was reversed for omission of an element of the offense from the charge. White, supra, at 507. Compare West v. State, 567 S.W.2d 515 (Tex.Cr.App.). Similarly, in Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.), a challenge to the sufficiency of a jury charge in an aggravated robbery case resulted in an examination of the charge as a whole. Before determining that such an examination was appropriate, however, we initially noted that the complained of omission was not one of an entire essential element, distinguishing West, supra; Bradley, supra; and, Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.).

Where the paragraph applying the law to the facts omits an essential element of the offense, an examination of the remainder of the charge, including the abstract definitions, is never sufficient to cure the error caused by the omission. The first step in analyzing a fundamental error issue for failure to include all necessary elements of the offense is to examine the paragraph of the charge which applies the law to the facts of the case.

Another argument advanced is that the omission of "without the owner's effective consent" from the paragraph applying the law to the facts is not a defect because the jury is charged that they must find appellant unlawfully appropriated the property and in the abstract definitions unlawful appropriation is defined as being without the owner's effective consent. Thus, if the jury refers back to the abstract definitions, they must find this sub-element before finding appellant guilty. This view overlooks the importance of the paragraph of the charge where the trial judge applies the law to the facts...