Pitts v. State
| Decision Date | 19 July 1978 |
| Docket Number | No. 53428,53428 |
| Parties | Larry Charles PITTS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for attempted capital murder; punishment was assessed at imprisonment for twenty-seven years.
Appellant asserts that: (1) the charge submitted to the jury authorized the appellant's conviction under a theory not alleged in the indictment; (2) the charge failed to apply the law of parties to the facts of the case; and (3) there is a fatal variance between the allegations of the indictment and the evidence.
The indictment alleges that the appellant:
". . . did then and there unlawfully attempt to intentionally and knowingly cause the death of S. L. Serres, by shooting him with a gun, the said S. L. Serres being a peace officer acting in the lawful discharge of an official duty and the said LARRY CHARLES PITTS then and there knew the said Complainant was a peace officer."
This allegation is sufficient to charge the offense of attempted capital murder. Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978); Telfair v. State, 565 S.W.2d 522 (Tex.Cr.App.1978); V.T.C.A. Penal Code, Secs. 15.01(a) and 19.03(a)(1).
The charge that was submitted to the jury included instructions on the law of capital murder and definitions of attempt, intent, and knowledge. The court also instructed the jury on the law of parties or criminal responsibility for the acts of another, criminal conspiracy, and renunciation of a conspiracy.
The court then in applying the law to the facts instructed the jury:
"Now, therefore, if you find from the evidence beyond a reasonable doubt that on or about the 12th day of October, A.D., 1974, in the County of Harris and State of Texas, as alleged in the indictment, that the defendant, Larry Charles Pitts, had entered into and was attempting to carry out a conspiracy with Rudolph Glenn Roark to commit the offense of robbery, and you further find that either the defendant Larry Charles Pitts, or Rudolph Glenn Roark did then and there with a gun intentionally or knowingly attempt to cause the death of S. L. Serres, by shooting him with a gun, knowing at the time that S. L. Serres was a peace officer acting in the lawful discharge of an official duty, as alleged in the indictment, and you further find that such attempt was committed, if it was, in furtherance of the original unlawful purpose of the defendant, Larry Charles Pitts, and Rudolph Glenn Roark, to commit the offense of robbery and was such an offense as should have been anticipated as a result of carrying out the conspiracy to commit the offense of robbery and you further find that Larry Charles Pitts had not voluntarily and completely renounced the criminal objective, as hereinbefore defined, then you will find the defendant, Larry Charles Pitts, guilty of attempted capital murder."
This charge allowed the jury to find the appellant guilty either if he fired the shot which struck the officer or as a party to the offense if Roark fired the shot which struck the officer.
The appellant asserts that since the indictment failed to allege he was a party to the offense and criminally responsible for the conduct of another, the court erred in submitting the charge to the jury which allowed his conviction on that theory. The law of parties is stated in V.T.C.A. Penal Code, Sec. 7.01, which provides:
And Sec. 7.02(b) provides:
In the new penal code, the legislature eliminated the distinction between principals and accomplices and the attendant complexities in drafting indictments. Under the former code it was not necessary to allege the facts to show that a defendant was a principal; a principal offender could be charged directly with the...
To continue reading
Request your trial
-
Nichols v. Scott
...applicable to a case and may be properly charged on if raised by the evidence even if not alleged in the indictment. Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978); Crank v. State, 761 S.W.2d 328, 351 (Tex.Crim.App.1988); Montoya v. State, 810 S.W.2d 160, 165 (Tex.Crim.App.), cert.......
-
Wallace v. State
...Appellant complains because the court refused to apply the law of parties under Sec. 7.02(a)(2) to the facts. He relies on Pitts v. State, Tex.Cr.App., 569 S.W.2d 898, in which the trial court also applied the law of parties under Sec. 7.02(b) to the facts, but neglected to apply the law un......
-
Johnson v. State
...891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Crim.App. [panel op.] 1979); Pitts v. State, 569 S.W.2d 898 (Tex.Crim.App.1978) (en banc). It would be an anomaly for this court to say the law of parties under §§ 7.01 and 7.02 applies to capital murder case......
-
Miranda v. State
...facts even if there is no allegation in the indictment. Williams v. State, 676 S.W.2d 399, 401 (Tex.Crim.App.1984); Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978); Bratcher v. State, 771 S.W.2d 175, 183 (Tex.App.--San Antonio 1989, no pet.).3 Goodman v. State, 665 S.W.2d 788, 791 (......