Robinson v. State
| Citation | 665 S.W.2d 826 |
| Decision Date | 11 January 1984 |
| Docket Number | No. 3-82-087-CR,3-82-087-CR |
| Parties | William Quincy ROBINSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Ian Inglis, Austin, for appellant.
Stephen McCleery, Asst. Dist. Atty., Austin, for appellee.
A jury found appellant guilty of attempted capital murder and assessed punishment at imprisonment for sixty years. Tex.Pen.Code Ann. §§ 15.01 (Supp.1982) and 19.03(a)(2) (1974). Our examination of appellant's seven grounds of error reveals no reversible error, and we affirm the judgment of conviction.
On the night of February 18, 1981, appellant, his brother Richard Robinson, and Anthony Burkhalter entered an Austin convenience store with the intent to rob the cashier. Both Robinsons were armed with .38-caliber pistols. During this robbery, Michael Segal, a nineteen-year-old University of Texas student, entered the store. Segal was himself robbed and then taken to the rear of the store where he was shot in the back of the head by Richard Robinson. Appellant does not challenge the sufficiency of the evidence to support his conviction for the attempted capital murder of Segal. 1
In his first ground of error, appellant contends the trial court erred in overruling his motion to quash the indictment. In this motion, appellant complained the indictment:
fails to provide sufficient factual information regarding the conduct in which Defendant was alleged to have engaged in that it fails to allege which Defendant allegedly shot Michael Segal or which Defendant allegedly robbed Michael Segal and what specific acts Defendant committed which constituted the offense as alleged. Due to the unspecified, vague and general nature of the allegations against him, Defendant has not been given adequate notice of the facts constituting the alleged offense and he is unable to adequately prepare a defense thereto.
The indictment alleges that:
William Quincy Robinson, Richard Charles Robinson and Claude Anthony Burkhalter ... did then and there with the specific intent to commit the offense of capital murder, did knowingly and intentionally attempt to cause the death of an individual, Michael Segal, by shooting the said Michael Segal with a firearm, to wit: a handgun, which act amounted to more than mere preparation that tended but failed to effect the commission of the offense intended; and the said William Quincy Robinson, Richard Charles Robinson and Claude Anthony Burkhalter did then and there attempt to cause the death of the said Michael Segal in the course of committing the offense of robbery upon the said Michael Segal....
Appellant argues that where several persons are charged in the same indictment with committing the same criminal act, each defendant is entitled to be informed, in response to a timely motion to quash, of his alleged role in the offense; that is, of the conduct giving rise to his alleged criminal responsibility. While we agree the accused in a criminal case is entitled to fair notice of the charge against him, we hold the trial court did not err in overruling appellant's motion to quash.
In the new penal code, the legislature eliminated the distinction between principals and accomplices and the attendant complexities in drafting indictments. Tex.Pen.Code Ann. § 7.01 (1974). Under § 7.01(c), a person who is criminally responsible for an offense committed by another may be charged with the offense without alleging the facts on which this responsibility is based. Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978); Wooley v. State, 629 S.W.2d 867 (Tex.App.1982, pet. ref'd).
The facts alleged in the instant indictment are sufficient to give fair notice of the criminal conduct allegedly committed by appellant or the person for whose conduct he was criminally responsible. Appellant's motion to quash sought more than fair notice of the charge against him; in requesting an allegation of the "specific acts Defendant committed which constituted the offense as alleged," appellant sought to compel the State to allege the evidence on which it would rely to prove its case. If not essential to fair notice, the State is not required to plead its evidence. Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983); Phillips v. State, 597 S.W.2d 929 (Tex.Cr.App.1980). The first ground of error is overruled.
In his second ground of error, appellant contends the charge to the jury was fundamentally defective in that it authorized his conviction on a finding that "with the specific intent to commit the offense of capital murder, [he] did knowingly or intentionally attempt to cause the death of an individual...." Appellant points out that under § 19.03(a)(2), supra, a capital murder must be committed intentionally. Thus, argues appellant, the charge authorized his conviction on a finding of a lesser culpable mental state than required by the statute defining the offense.
Appellant's argument fails for two reasons. First, appellant was not charged with capital murder, but with attempted capital murder. The culpable mental state required for criminal attempt is a specific intent to commit an offense. Tex.Pen.Code Ann. § 15.01, supra; McCravy v. State, 642 S.W.2d 450 (Tex.Cr.App.1980). The charge in the instant case required the jury to find that appellant acted with the specific intent to commit capital murder in order to convict. By requiring an additional finding that appellant acted intentionally or knowingly, the charge increased the State's burden of proof and did not harm appellant. See Johnson v. State, 650 S.W.2d 784 (Tex.Cr.App.1983). Second, in the paragraph immediately preceding the application paragraph, the jury was instructed that it was not to convict appellant unless it found beyond a reasonable doubt that he, or another person for whose conduct he was criminally responsible, specifically intended to kill Michael Segal. See Inman v. State, 650 S.W.2d 417 (Tex.Cr.App.1983).
Appellant's third ground of error is premised on his second ground, and argues that because of the alleged defect discussed above the charge only authorized his conviction for attempted murder, a second-degree felony punishable by imprisonment up to twenty years. Appellant thereby concludes the punishment assessed in this case is greater than that allowed by law. Having found the charge to the jury was not defective in the manner alleged by appellant, we overrule the third ground of error.
In his fourth ground of error, appellant complains the State was erroneously permitted to impeach a defense character witness with "have you heard" questions. Such questions are properly used to impeach a witness who has testified to the defendant's good reputation in the community for being peaceful and law-abiding, but may not be used to impeach a witness who merely testifies to the defendant's good character. Jewell v. State, 593 S.W.2d 314, 321 (Tex.Cr.App.1978) (); Ward v. State, 591 S.W.2d 810, 816 (Tex.Cr.App.1978) ().
The witness in question was Anna Richardson, who was called by the defense at the punishment stage of appellant's trial. Richardson testified she had known appellant for five years, and had had frequent contact with him in his home and at church. Richardson further testified as follows:
To a certain extent, Richardson's testimony was nothing more than an expression of her opinion as to appellant's character. Such testimony does not open the door for "have you heard" questioning. Ward v. State, supra. However, Richardson also testified she had heard other persons discuss appellant and summarized the contents of these discussions. Richardson was also asked, although she did not directly answer, the specific question whether she knew appellant's general reputation in the community for being peaceful and law-abiding. Under the circumstances, we find the trial court did not err in permitting the State to impeach the witness with "have you heard" questions.
We also note this ground of error was not preserved for review. The only objection voiced by appellant to the cross-examination of Richardson by the State was that "nothing has been introduced in regard to this and we don't know if it's true or if it's not true, and it's quite obviously prejudicial to the jury." There was no objection on the ground that appellant's reputation had not been placed in issue. Ground of error four is overruled.
Appellant testified on his own behalf. While he admitted being present at the time of the robbery...
To continue reading
Request your trial
-
Starkey v. State
...(en banc); Ortiz v. State, 680 S.W.2d 659, 663 (Tex.App.--Houston [1st Dist.] 1984, no pet.); Robinson v. State, 665 S.W.2d 826, 828 (Tex.App.--Austin 1984, pet. ref'd). The deleted language was descriptive of appellant's complicity as a party to the offense and not of the culpable mental s......
-
Patterson v. State
...Although counsel's failure to object to the jury charge in this case was a "glaring error," see Robinson v. State, 665 S.W.2d 826, 831 (Tex.App.-Austin 1984, pet. ref'd) (stating that counsel's failure to request a charge pursuant to article 38.14 when it was clear that witness was accompli......
-
Daniel Louis Beal v. the State of Texas
...in some circumstances, in other circumstances it does not. Shaw v. State, 874 S.W.2d 115, 120 (Tex. App.-Austin 1994, pet ref'd). In Robinson v. State, the court found that counsel's failure to request an accomplice witness jury instruction was a "glaring error." Robinson, 665 S.W.2d 826, 8......
-
Howard v. State
...failure to request a jury instruction on accomplice-witness testimony was not ineffective assistance of counsel. 665 S.W.2d 826 (Tex.App.--Austin 1984, pet. ref'd). The circumstances of that case, however, are unlike those found here. In Robinson, the court found ample corroboration of the ......