Peterson v. State, 47824

• Decision Date: 08 May 1974
• Docket Number: No. 47824,47824
• Citation: 508 S.W.2d 844
• Parties: Danny Charles PETERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 844

508 S.W.2d 844

Danny Charles PETERSON, Appellant, v. The STATE of Texas, Appellee.

No. 47824.

Court of Criminal Appeals of Texas.

May 8, 1974.

H. Thomas Hirsch, Odessa, for appellant.

James A. Mashburn, Dist. Atty., and Jerry Buckner, Asst. Dist Atty., Midland, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for assault with intent to murder with malice. Punishment was assessed by the jury at twenty-five years.

While the sufficiency of the evidence to support the conviction is not challenged, the nature of the case merits a brief recitation of the facts in order that contentions raised herein may be discussed with greater clarity.

The record reflects that Officer Jesse Robbins was working undercover in Midland on March 11, 1972, in an effort directed toward the apprehension of prostitutes. About 11:40 p.m. on said date Robins was driving by the Jones Hotel when a woman, later identified as Barbara Nell Anthony, hollered, 'Hey, hey baby.' In response to the greeting, Robbins stopped the car and Anthony said, 'Hey, baby what you looking for? You want to f---?' Twenty dollars was quoted as the requisite fee by Anthony. Robbins invited her to get in his car and drove toward the Midland police station. En route, the officer identified himself and advised Anthony that she was under arrest. Anthony started hitting Robbins, honking the horn of the automobile, and brought the car to a stop by pulling the keys from the ignition. Appellant approached the car and asked, 'What are you doing to that girl?' Robbins told appellant that he was an officer and that the girl was under arrest. Appellant exhibited a pistol and said, 'You let that girl go.' Robbins got out of the vehicle and appellant told Anthony to get his gun. Robbins stated that he would get the gun for appellant, that 'She is under arrest for prostitution, and it is not worth anyone getting shot over.' At this juncture, Robbins stated that he picked up his gun where his finger would not be around the trigger '. . . with my palm open. . . .' At this point in time appellant shot Robbins.

At the outset appellant challenges the sufficiency of the indictment in that the indictment injects the element of malice aforethought to an Article 1160a, Vernon's Ann.P.C. ¹ indictment, and that the indictment does not set forth with particularity an offense so as to notify a person of the charge he has to defend against.

The pertinent portion of the indictment reads:

'. . . did then and there unlawfully and with malice aforethought shoot Jesse Robbins with a pistol with the intent then and there to murder the said Jesse Robbins; the said Jesse Robbins then and there being a peace officer, to wit, an officer of the Midland Police Department of Midland County, Texas, in the lawful discharge of the duties of said office; and the said Danny Charles Peterson then and there knew that the said Jesse Robbins was then and there a peace officer performing his official duties, . . .'

Appellant urges that the indictment is faulty on its face in that malice aforethought is not a part of the offense set forth in Article 1160a, V.A.P.C., that it fails to give notice of the crime charged, and that the indictment will not support a conviction.

In Steambarge v. State, Tex.Cr.App., 440 S.W.2d 68, this court said:

'The provisions of Art. 21.24, Vernon's Ann.C.C.P., that an indictment may not charge more than one offense does not prohibit alleging several ways in which an offense was committed or charging more than one offense based upon the same incident or transaction.'

The indictment in the instant case is sufficient to charge 'assault (upon) a peace officer with intent to murder' under Article 1160a, V.A.P.C. and 'assault with intent to murder' under Article 1160, V.A.P.C.

In Bennett v. State, Tex.Cr.App., 455 S.W.2d 239, it was stated:

'Even if the indictment were held to be duplicitous, such is not a fundamental defect to charge more than one separate and distinct offense in the same count, and '(i)t can be waived, and, unless raised by motion to quash or in limine, it cannot thereafter be relied upon. * * * Duplicity is not a fundamental error in the indictment and does not render it void but voidable.' Villalva v. State, 142 Tex.Cr.R. 120, 151 S.W.2d 222; Melley v. State, 93 Tex.Cr.R. 522, 248 S.W. 367.' ²

While the indictment in the instant case was duplicitous, it was not void and an objection to such indictment raised for the first time on appeal comes too late. Bennett v. State, supra; Edison v. State, 172 Tex.Cr.R. 313, 356 S.W.2d 692.

'In determining whether or not the indictment supports the conviction the material inquiry is not whether the allegations are appropriate in charging the violation of some other statute, but whether the indictment contains the allegations necessary to show the commission of the offense which is submitted to the jury and for which he is convicted.' Gomez v. State, 126 Tex.Cr.R. 30, 280 S.W.2d 278; Welcome v. State, Tex.Cr.App., 438 S.W.2d 99.

The indictment in the instant case, while duplicitous in charging violations of Articles 1160 and 1160a, V.A.P.C., was not fundamentally defective and was sufficient to support a conviction of assault with intent to murder.

Appellant contends that the court erred in permitting Robbins to testify to a conversation with Barbara Nell Anthony which occurred out of the presence of appellant.

Appellant's contention is directed to all of Robbins' testimony about his conversation with Anthony outside of the presence of appellant. A review of appellant's objection in the trial court as well as the argument advanced in his brief reflects that appellant's concern is directed to Robbins' testimony that he told Anthony he was a police officer.

Anthony testified in behalf of appellant, and, while her version of the events which transpired after she got in the car with Robbins varies somewhat from the testimony of Robbins, the record reflects the following testimony was elicited from Anthony:

'Q. Now while you were in the car, the man did tell you he was a police officer, is that not accurate?

'A. Yes, he did.'

Thus, appellant's witness testified to the very statement about which he appears to complain.

Appellant's argument that the complained of conversation was harmful to his defense that he did not know Robbins was an officer is clearly without merit. Patently, if appellant were not present when the conversation occurred, Robbins' statement to Anthony did not serve to put appellant on notice that Robbins was an officer and would appear to lend credence to appellant's defense.

We perceive no error.

Appellant's fourth contention is directed to the court admitting testimony of Officer Reeves as to his conversation with Anthony out of the presence of the appellant.

This contention does nothing further to identify the complained of testimony nor does it point to any adverse ruling by the court. No discussion or argument is advanced in support of the general allegation of error. No authorities are cited. Nothing is presented for review. Article 40.09, Section 9, Vernon's Ann.C.C.P.

In appellant's next three contentions appellant urges that the court erred in its charge to the jury: (1) in submitting a definition of charge of assault with intent to murder with malice for the reason that same is not a lesser and included offense of assault with intent to murder a peace officer; (2) in charging the jury with the definition of assault with intent to murder without malice for the reason that the same is not a lesser and included offense of assault with intent to murder a peace officer; and (3) in charging the jury with the definition of assault with intent to murder without malice for the reason that there is no such offense as assault with intent to murder a peace officer without malice.

This court has consistently held that an appellant's contentions are not before this court for consideration where neither written objection to the court's charge nor a written request for the charge desired was filed with the trial court. Articles 36.14 and 36.15, V.A.C.C.P.; Nichols v. State, Tex.Cr.App., 494 S.W.2d 830. Objections dictated to the court reporter (as in the instant case) are not sufficient to preserve error. Louden v. State, Tex.Cr.App., 491 S.W.2d 168; Ross v. State, Tex.Cr.App., 486 S.W.2d 339; Woods v. State, Tex.Cr.App., 479 S.W.2d 952; Fennell v. State, Tex.Cr.App., 460 S.W.2d 417. Where objection is not made to the court's charge in accordance with Article 36.14, V.A.C.C.P., a case will not be reversed on appeal because of an error in the charge unless the error was calculated to injure the rights of the defendant, or unless it appears that he has not had a fair and impartial trial. Article 36.19, V.A.C.C.P.; Jefferson v. State, Tex.Cr.App., 487 S.W.2d 331; Aston v. State, 120 Tex.Cr.R. 534, 48 S.W.2d 292. Thus, we are confronted with the question of whether the alleged errors in the court's charge constituted fundamental error. ³ See Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; Jefferson v. State, supra.

While we agree with appellant that the offense of assault with intent to murder is not a lesser included offense of assault upon a peace officer with intent to murder, ⁴ we are not here confronted with this problem. The question before us is one of whether the duplicitous indictment contains all the...