Lang v. State

• Decision Date: 24 September 1985
• Docket Number: No. 05-81-00776-CR,05-81-00776-CR
• Citation: 698 S.W.2d 223
• Parties: Raymond LANG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 223

698 S.W.2d 223

Raymond LANG, Appellant, v. The STATE of Texas, Appellee.

No. 05-81-00776-CR.

Court of Appeals of Texas Dallas.

Sept. 24, 1985.

Melvyn Carson Bruder, Dallas, for appellant.

Henry Wade, Crim. Dist. Atty., Anne B. Wetherhold, Asst. Dist. Atty., Dallas, for appellee.

Before GUITTARD, C.J., SPARLING and VANCE, JJ.

GUITTARD, Chief Justice.

This case is before us on remand from the court of criminal appeals. We affirm the conviction.

Appellant was indicted for theft of a ring. The complainant testified that she permitted appellant to have temporary possession of the ring for a brief inspection and that he failed to return it to her. The indictment alleged that appellant appropriated the ring "without effective consent since no assent in fact was given by the owner." The court's charge authorized the jury to convict if the State should establish "that at the time of the appropriation, if any, the defendant appropriated the same by means of deception." On original submission we reversed on the ground of "fundamental error" in that the charge authorized conviction on a theory not alleged in the indictment. Lang v. State, 642 S.W.2d 68 (Tex.App--Dallas 1982), rev'd and remanded, 691 S.W.2d 692 (Tex.Crim.App.1985). We relied on the definition of "fundamental error" in Cumbie v. State, 578 S.W.2d 732 (Tex.Crim.App.1979).

Since our original opinion was issued, the court of criminal appeals has overruled Cumbie in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985), and, accordingly, has remanded the present case to this court for us to determine whether the error was "so egregious and created such harm that appellant has not had a fair and impartial trial." Lang, 691 S.W.2d at 692. We hold that the error was not "egregious" and, therefore, was waived by appellant's failure to object.

On remand the State again contends that the charge was not erroneous. We decline to reconsider our holding on this point because we interpret the opinion of the court of criminal appeals as approving that holding. We see no reason for that court to remand the case to us to determine whether the error was egregious unless that court had rejected the State's contention that there was no error in the charge.

On remand we are directed to determine the question of whether the error in the trial court's charge was fundamental error by reviewing:

the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.

Lang, 691 S.W.2d at 692.

In deciding this question, we must observe the distinction carefully elaborated in Almanza between the two standards of review found in article 36.19 of the Texas Code of Criminal Procedure (Vernon 1981). The first is whether the error is "calculated to injure the rights of the defendant," the standard for determining whether the error is serious enough to require reversal if the court's attention is called to the error by a timely objection. Almanza, 686 S.W.2d at 171. The second is whether the error is so "egregious" that the appellant "has not had a fair and impartial trial," the standard for determining whether the error is serious enough to require reversal even if the trial court's attention is not called to the error by timely objection. 686 S.W.2d at 171.

Since appellant did not make a timely objection in the trial court, we must determine whether a charge that authorizes conviction on a theory not alleged in the indictment deprives the accused of a "fair and impartial trial." Cumbie stood for the rule that such an error does deprive the accused of a "fair and impartial trial," but Cumbie was expressly overruled in Almanza. As an example of an "egregious error" of the kind recognized by Almanza, Judge Clinton, in his concurring opinion in the present case, cites Ross v. State, 487 S.W.2d 744 (Tex.Crim.App.1972). In Ross, as Judge Clinton observes, the error in a charge authorizing conviction under a theory not alleged in the indictment was held to be "fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair trial" because the evidence was "insufficient to support a conviction ... under the allegations of the indictment." Ross, 487 S.W.2d at 745. The present case does not fall into this category because, as we held in our original opinion, the evidence is sufficient to support the conviction under the allegations of the indictment. We so held in our original opinion because we concluded that although appellant initially had possession of the ring with the owner's consent, the evidence is sufficient to show that his appropriation of the ring by failure to return it was "without effective consent since no assent in fact was given by the owner," as the indictment alleges.

However, even though we have determined that the evidence is sufficient to support the allegations of the indictment, further analysis is required to determine whether the error in the charge is so egregious as to require reversal without a timely objection in the trial court. This further analysis...