Sattiewhite v. State

• Decision Date: 05 December 1979
• Docket Number: No. 57823,No. 3,57823,3
• Citation: 600 S.W.2d 277
• Parties: Rollie Dean SATTIEWHITE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 277

600 S.W.2d 277

Rollie Dean SATTIEWHITE, Appellant, v. The STATE of Texas, Appellee.

No. 57823.

Court of Criminal Appeals of Texas, Panel No. 3.

Dec. 5, 1979.

On Rehearing May 7, 1980.

Rehearing Denied July 9, 1980.

C. N. Rothe, San Antonio (court-appointed), for appellant.

Bill M. White, Dist. Atty., Sharon S. Macrae, James W. Blagg, and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Alfred Walker, Asst. State's Atty., Austin, for the State.

Before ODOM, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

Appeal is taken from a conviction for aggravated robbery. Punishment, enhanced by a prior conviction, was assessed by the court at imprisonment for 25 years.

Appellant contends, among other things, that the court's charge applying the law to the facts is fundamentally defective. We are constrained to agree.

The indictment in this case alleges that appellant

. . . did then and there intentionally and knowingly threaten and place MAXINE WONG, hereinafter called complainant, in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely: A GUN, while the said defendant was in the course of committing theft of property, namely: LAWFUL MONEY OF THE UNITED STATES OF AMERICA, from said complainant, the owner of said property, without the effective consent of the said complainant, and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property; . . .

In applying the law to the facts, the court charged the jury that they should enter a verdict of guilty if they found that appellant

. . ., while in the course of committing theft, and with the intent to obtain or maintain control of property, namely: lawful money of the United States of America, intentionally or knowingly threatened or placed Maxine Wong in fear of imminent bodily injury or death, and he used or exhibited a deadly weapon, namely: a gun, . . .

Appellant contends that the court's charge is fundamentally defective because it does not require the jury to find that appellant engaged in a theft of money "from said complainant, the owner of said property, without the effective consent of said complainant," as alleged in the indictment. Appellant did not object at trial to this portion of the charge.

It is fundamental error for a court to fail to charge the jury on an allegation in the indictment that is required to be proved. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979); Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.1978); Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918). In Moore, we set forth the underlying proposition:

Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.

The Moore rule has become firmly established in the criminal jurisprudence of this State. See Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887 (1940); Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956); Morter v. State, 551 S.W.2d 715 (Tex.Crim.App.1977); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978); Cumbie v. State, supra.

Here the offense alleged was aggravated robbery under V.T.C.A. Penal Code, Section 29.03(a)(2). This offense breaks down into the following elements, each of which must be included in the court's charge applying the law to the facts: (1) In the course of committing theft and (2) with intent to obtain and maintain control of the property (3) a person (4) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death (5) by using or exhibiting a deadly weapon.

Clearly, it must be proven that the assaultive conduct took place while the defendant was "In the course of committing theft," as the quoted phrase constitutes an element of the offense. We have so held. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976); Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974). The elements of the offense of theft need not be alleged in the indictment for robbery; however, to establish the commission of the offense it must be proven that an attempted theft or completed theft took place. Davis v. State, 532 S.W.2d 626 (Tex.Crim.App.1976); Reese v. State, supra; Earl v. State, supra. See the definition of the phrase "In the course of committing theft," V.T.C.A. Penal Code, Section 29.01(1).

The court's charge applying the law to the facts required the jury to find that the offense was committed "In the course of committing theft," as required by Section 29.03(a)(2), supra, and as alleged in the indictment. The indictment, however, went further to describe the theft as being committed against "said complainant, the owner of said property, without the effective consent of the said complainant." Thus the indictment alleged that (1) the property was stolen from Wong, (2) Wong was the owner of the stolen property, and (3) the stolen property was taken without Wong's effective consent. These allegations in the indictment were unnecessary; it would have been sufficient to allege, without more, than the assaultive conduct occurred "In the course of committing theft."

Once alleged, however, it was incumbent on the State to prove those allegations:

It is well established that where a person, place or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all circumstances of description must be proven, Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927), and cannot be rejected as surplusage, for they are thus made essential to the identity. Maples v. State, 124 Tex.Cr.R. 478, 63 S.W.2d 855 (1933). Thus, if the pleader makes unnecessary allegations descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence. McClure v. State, 163 Tex.Cr.R. 650, 296 S.W.2d 263 (1956).

Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975). See also Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977); Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972); Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927). The allegations in this case cannot be regarded as mere surplusage. Although unnecessary, the allegations are descriptive of "In the course of committing theft," which is an element of the offense charged. They describe the theft that had to be proven up in order to establish the offense of robbery. Davis, supra; Reese, supra.

Inasmuch as the allegations were descriptive of an essential element of the offense the State was required to prove them. The court failed to charge the jury on these allegations in the indictment that were required to be proved, and authorized the jury to convict appellant on a set of facts other than that alleged in the indictment. Fundamental error is presented. Cumbie v. State, supra; Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918).

The judgment is reversed and the cause remanded.

Before the court en banc.

STATE'S MOTION FOR REHEARING

CLINTON, Judge.

The issue in this cause is whether fundamental error attends failure of a trial court to include in that part of its charge to a jury applying the law to the facts certain factual details of the offense of theft that have been alleged in an indictment for aggravated robbery and proved up by the State. On original submission a panel of the Court, analyzing and resolving the problem in a fashion about to be discussed, found fundamental error in the omission.

First, the panel opinion posits a verity that it is fundamental error to fail to charge the jury on an allegation that is required to be proved. The opinion then compares the indictment with the charge and notes that certain allegations in the former are not reflected by the latter. Finding allegations merely descriptive of the offense and, as such, not at all necessary to state the essential element of "in the course of committing theft," the panel invokes and relies on a line of cases holding that the State is required to prove factually those indictment allegations that are descriptive of an essential element of the offense. The descriptive allegations were proved by the State but do not appear in the charge of the trial court in applying the law to the facts. Ergo, holds the panel, fundamental error in the charge of the trial court.

To support much of its analysis and resolution of the problem the panel opinion applies what it perceived to be the teachings of a 1918 decision of the Court.

During the more than one hundred years of its tenure ¹ this Court, like every conscientious appellate court, has endeavored to follow the ancient doctrine of "stare decisis et non quieta movere " to adhere to precedents, and not to unsettle things which are established and to reconcile and harmonize divergent applications of legal principle that inevitably are made from time to time. Today, impelled by a stoutly supported motion for rehearing vigorously advanced by the State, we are constrained to reexamine the obiter dictum that the panel opinion on original submission found "has become firmly established in the criminal jurisprudence of this State" in what the State characterizes as "the landmark case on the subject." The recipient of such flattery is Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683, 684 (1918) and its sixty two year old "rule" is:

"Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment."

The quoted language appears near the end of the opinion reversing the judgment for various "reasons indicated," at least four of which are articulated above the statement of the "rule." While the...