Royster v. State

• Decision Date: 20 May 1981
• Docket Number: No. 2,No. 60161,60161,2
• Parties: David ROYSTER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 442

622 S.W.2d 442

David ROYSTER, Appellant, v. The STATE of Texas, Appellee.

No. 60161.

Court of Criminal Appeals of Texas, Panel No. 2.

May 20, 1981.

On Rehearing Sept. 23, 1981.

Rehearing Denied Oct. 21, 1981.

Antonio Cantu, on appeal only, Alan E. Battaglia, San antonio, for appellant; David K. Chapman, San Antonio, of counsel.

Bill M. White, Dist. Atty., Bill Harris, Joe F. Brown, Jr. and Edward J. Coffey, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of robbery. The punishment, enhanced by two prior felony convictions, is imprisonment for life.

The appellant asserts that: (1) the trial court erred in overruling his motion to quash the indictment which he says does not allege the offense in plain and intelligible language; (2) in overruling his motion to quash the enhancement paragraphs of the indictment; (3) in refusing to submit requested charges for lesser included offenses; (4) in overruling his objection to his in-court identification; and (5) in overruling his motion for mistrial after the prosecutor allegedly asked an improper question.

The indictment alleges in pertinent part:

"... on or about the 16th day of OCTOBER, A. D. 1977, DAVID ROYSTER, hereinafter called defendant, did then and there intentionally and knowingly cause bodily injury to RONALD SIMMONS, while the said defendant was in the course of committing theft of property, namely: ONE (1) PURSE, from MRS. DAN WARD, JR., the owner of said property, without the effective consent of the said MRS. DAN WARD, JR., and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property;"

The complaint is that the indictment does not charge the offense of robbery in plain and intelligible language as required by Art. 21.02, Sec. 7, V.A.C.C.P. Specifically, the appellant says it does not allege from whom the purse was taken and does not allege that the appellant knowingly or intentionally committed or attempted to commit the theft from either Ronald Simmons or Mrs. Dan Ward, Jr. It is alleged in the indictment in plain and intelligible language that Mrs. Dan Ward, Jr. was the victim of the theft; her purse was alleged to have been taken. Also, it is alleged that in the course of committing that theft the appellant caused bodily injury to Ronald Simmons.

The holding in Servance v. State, 537 S.W.2d 753 (Tex.Cr.App.1976) is that in the offense of robbery the victim of the theft or attempted theft and the person injured or threatened need not be the same. In the indictment in that case, although the phrases may be in different order, the allegations are substantially the same as in this case. The indictment in the instant case is sufficient.

Next the appellant complains: "The trial court erred in overruling appellant's motion to quash both enhancement paragraphs because there was no reference to the authenticity of the sentences included in either prison packet certification." We interpret this ground of error to be addressed to the insufficiency of the pleading, and the decision in Hollins v. State, 571 S.W.2d 873 (Tex.Cr.App.1978) controls. There it was said:

"Further, and more importantly, we observe that if the proof failed to support the enhancement allegations the punishment could not be legally enhanced. But this would not be grounds to quash that portion of the indictment. The office of a motion to quash an indictment is normally addressed to the sufficiency of the allegations therein, and not to whether there may be or is a variance between the allegata and probata."

Whether or not the evidence is properly admissible and whether it supported the allegations regarding the enhancement of punishment may not be tested by a motion to quash. Johnson v. State, 126 Tex.Cr.R. 356, 71 S.W.2d 280 (1934); Tinker v. State, 77 Tex.Cr.R. 506, 179 S.W. 572 (1915). The trial court did not err in refusing to quash the indictment.

Complaint is made that the trial judge refused to submit to the jury appellant's requested charges on the lesser included offenses of assault causing bodily injury and theft from the person. He argues that the indictment alleges an assault against Ronald Simmons and theft from the person of Mrs. Dan Ward, Jr., and that these offenses are separate offenses against two different individuals. That a lesser offense is included within the offense alleged does not necessarily require a jury charge on the lesser offense. It is only when there is conflicting evidence concerning an element of the greater offense which is not an element of a lesser offense that a charge on lesser included offense need be given. The rule stated another way by Mr. Justice Goldberg in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965) is:

"A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense."

See Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980; Dally, J., concurring in part and dissenting in part); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1958); Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895); United States v. Madden, 525 F.2d 972 (5th cir. 1976); Yates v. United States, 384 F.2d 586 (5th Cir. 1967).

The pertinent facts will be summarized. Mr. and Mrs. Dan Ward, Jr., and Mr. and Mrs. Walter S. Falk, Jr., were among a large group of people who were in San Antonio attending a conference of the Texas Municipal League. They left one of the social events and were walking toward a parking lot when Mr. Falk, who was the Mayor of Rockport, heard a scuffle in front of him where the Wards were walking and heard Mrs. Ward exclaim: "Oh, no!" Then Falk saw a man running past him with Mrs. Ward's purse. Falk started to chase the man who ran into some bushes. Falk thought the man was going to surrender, but a lady then warned Falk that the man had a knife. The man came face to face with Falk at a distance of about three feet and slashed at Falk twice. Falk testified he got a good look at the man at this time. The man continued his attempt to escape; officers and several other men pursued him. During the chase the man cut Ronald Simmons with a knife. The man was caught by those who had been pursuing him. Falk identified the appellant on the scene and at the trial as the man that he chased and the man who brandished the knife. The appellant did not testify or present any evidence and rested with the State.

The evidence does not raise issues which would have required the court to submit to the jury the requested charges on the lesser included offenses.

Appellant argues that his trial identification by the witness Falk was tainted by an impermissibly suggestive pretrial photographic identification procedure and that the in-court identification by that witness was not shown to be of independent origin.

During a suppression hearing the trial court ruled that Falk could not identify the appellant for the jury. Thereafter Falk's testimony was interrupted; the jury was removed and more testimony was elicited in the suppression hearing. After the trial judge heard this additional testimony he ruled that Falk could identify the appellant for the jury.

Appellant's complaint stems from an incident which occurred at the police station when Falk was there to make a written statement concerning this offense. There was no lineup and Falk was not shown a photographic spread. Falk saw a photograph of the appellant on a desk and volunteered that that was the man who grabbed the purse. An officer then told Falk the appellant's name.

The trial judge did not err in allowing Falk to identify the appellant. The evidence supports the trial judge in finding that the witness' ability to make an in-court identification had an origin independent of the alleged improper photographic identification. Thomas v. State, 605 S.W.2d 290 (Tex.Cr.App.1980); Komurke v. State, 562 S.W.2d 230 (Tex.Cr.App.1978).

The appellant urges that the court's failure to grant a mistrial was reversible error. The court sustained an objection and instructed the jury to disregard a question asked by the prosecutor on redirect examination. The question to the witness Falk was: "Another distinctive characteristic about this defendant is that he committed a crime right in front of your eyes. Isn't that correct?" If the question was not proper, it was certainly harmless in view of the evidence and the court's ruling.

The judgment is affirmed.

CLINTON, Judge, dissenting.

Some six months ago, in Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980), my Brother Dally and I dissented separately against further application of the "guilty only" test of Daywood ¹ McBrayer ² in determining whether a charge on a lesser included offense should be given. However, we were unable to agree on what the proper standard is. He urges adoption of a federal rule ³ whereas I opt for the law that was fully developed and followed in this State long before the pure dicta of Daywood was turned into conventional cant by rote, Watson, supra, 887-888.

Now, writing for the Court Panel in this cause, Judge Dally has restated the Sansone rule, which the Court En Banc has just resisted in Watson v. State. Though I respectfully disapprove of the continued adherence to the Daywood/McBrayer test, I cannot agree to adopt the federal Sansone rule. ⁴

Accordingly, I must dissent.

Before the court en banc.

OPINION ON COURT'S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for robbery. After the jury found appellant guilty, punishment, enhanced by two prior convictions, was assessed at life.

This cause has been resubmitted on the Court's motion with regard to the...