Selvage v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: W.C. DAVIS
• Citation: Selvage v. State, 680 S.W.2d 17 (Tex. Crim. App. 1984)
• Decision Date: 11 July 1984
• Docket Number: No. 67620,67620
• Parties: John Henry SELVAGE, Appellant, v. The STATE of Texas, Appellee.

Page 17

680 S.W.2d 17

John Henry SELVAGE, Appellant, v. The STATE of Texas, Appellee.

No. 67620.

Court of Criminal Appeals of Texas En Banc.

July 11, 1984.

Rehearing Denied Oct. 10, 1984.

Donald W. Rogers, Jr., Houston (court appointed on appeal), for appellant.

John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr. and Andy Tobias, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death.

The record reveals that on July 30, 1979, at approximately 6:15 p.m., Brenda Joseph entered Ventura's Jewelry Store in Houston. Several minutes later, appellant and Wilbur Kelly ¹ entered the store; both carried shoulder bags. Also present in the store at that time were: Stephen Ventura, the store owner; the victim, Harris County Deputy Sheriff Albert Garza; ² and Charlye Jo Ivy and Ken Roberts, employees of Ventura.

Ventura testified that when appellant, Kelly, and Joseph entered the store, he was uncomfortable because they had been in the store earlier that day and were not regular customers. Ventura further stated that he informed Garza of his apprehension. Ventura then waited on the men while Ivy helped the woman. Garza, apparently in an effort to ensure that the three would cause no trouble, removed his coat and approached the counter in order to display his Deputy Sheriff's badge and his service pistol. Garza then escorted appellant to another section of the display counter in order to wait on him.

Subsequently, Kelly asked Ventura to fill out a layaway order on a ring. To complete this transaction, Ventura and Kelly moved to the section of the counter where appellant and Garza were standing. When Ventura bent over to obtain a layaway sales ticket, he heard a gunshot and Garza fell against him; Ventura did not see who fired the shot. As Ventura retreated to his office to obtain his revolver, he heard more gunshots; he then came out of his office, observed appellant bending over a broken jewelry case and removing the contents, and fired his revolver as he ran to the display section of the store.

Ken Roberts obtained a shotgun from inside the jewelry store, and he and Ventura pursued appellant and Kelly to the parking lot, where a shootout ensued between the four men. Ventura and Roberts testified that appellant and Kelly fired at them during their pursuit. ³ Ventura and Roberts returned to the store where they found that Deputy Garza had been shot in the neck. Neither Roberts nor Ivy saw who shot Garza.

In his first ground of error, appellant contends that the charge to the jury at the guilt phase of the trial was fundamentally defective in that it authorized a conviction with respect to count one of the indictment upon a theory not alleged in the indictment.

Count one of the indictment alleged the offense of capital murder pursuant to V.T.C.A. Penal Code Sec. 19.03(a)(2), and stated in pertinent part that:

... John Henry Selvage, hereafter styled the Defendant, heretofore on or about July 30, 1979, did then and there unlawfully while in the course of committing and attempting to commit Robbery of Stephen Ventura, intentionally cause the death of Albert Garza, hereafter styled the complainant, by shooting the complainant with a gun. (Emphasis added)

The trial court's charge to the jury applied the law to the facts of the case as follows:

Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, John Henry Selvage, on or about July 30, 1979, in Harris County, Texas, acting alone or as a party as that term has been defined, while in the course of committing or attempting to commit robbery, intentionally caused the death of Albert Garza by shooting him with a gun, you will find the defendant guilty of capital murder.

Appellant argues that he was charged with committing and attempting to commit the robbery of Stephen Ventura; therefore, the charge was fundamentally defective as it failed to name the victim of the robbery or attempted robbery. Appellant made no objection to the charge; neither did he request a different or supplemental charge.

In Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980) (Opinion on Rehearing), this Court held that a charge on aggravated robbery that did "not include certain details of the underlying offense of theft alleged in the indictment and proved by the State ... is not enough to render it fatally defective. Trostle v. State, 588 S.W.2d 925, 930-931 (Tex.Cr.App.1980); Frank v. State, 558 S.W.2d 12, 15-16 (Tex.Cr.App.1977)." Id at 285. This Court further stated that:

[i]f not otherwise faulty, a charge of the court that requires the jury to find each essential element of the offense charged and comports with the legal theory presented by the State through evidence that proves every factual allegation made in the charging instrument is not fundamentally defective, for the accused has been apprised of everything that due process and due course of law mandate. Id at 285.

Applying the reasoning in Sattiewhite v. State, supra, we first recognize that the essential elements of capital murder as charged in the instant case, pursuant to Sec. 1903(a)(2), supra, are:

1. a person,

2. intentionally,

3. caused the death of an individual,

4. in the course of committing or attempting to commit aggravated robbery.

In the instant case, the indictment alleged and the evidence presented by the State showed that appellant engaged in conduct which constituted each and every essential element of the offense of capital murder under Sec. 19.03(a)(2), supra. ⁴ Further, the charge of the court in applying the law to the facts required the jury to find each essential element of capital murder under Sec. 19.03(a)(2), supra, in order to convict.

We additionally point out that a charge must be viewed as a whole to determine whether fundamental error exists. See White v. State, 610 S.W.2d 504, 507 (Tex.Cr.App.1981). Review should not be limited to parts of a charge standing alone. Jackson v. State, 591 S.W.2d 820, 824-25 (Tex.Cr.App.1979). In the instant case the second paragraph following the application portion of the charge stated:

You are further instructed that the mere presence of the defendant, John Henry Selvage, at the scene of the alleged robbery of Stephen Ventura, if you have so found, would not constitute him a party to the offense.

The ground of error is overruled.

Appellant next contends that the court's charge to the jury was fundamentally defective for failing to apply the law of parties to the facts of the case.

The record reflects that the abstract portion of the charge defined the law of parties pursuant to Sec. 7.01; 7.02(a)(2); and 7.02(b), V.T.C.A. Penal Code. The charge, in applying the law to the facts, stated in pertinent part as follows:

Therefore, if you find from the evidence ... that the defendant, John Henry Selvage ... acting alone or as a party as that term has been defined, ... [Emphasis added]

Appellant did not request that a charge be submitted applying the law of parties, and did not object to the court's charge because it failed to apply the law of parties to the facts in detail. Rather, appellant requested that no instruction on parties be given.

While the court should have explicitly applied the law of parties to the facts of the case, in the absence of an objection or a specially requested charge no fundamental error is present. See Bilbrey v. State, 594 S.W.2d 754 (Tex.Cr.App.1980); Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978) (Opinion on Rehearing). The ground of error is overruled.

Appellant also contends that the trial court erroneously submitted the issue of his guilt as presented in count two of the indictment because the evidence was insufficient to show: (1) that appellant knew that the deceased was a peace officer, or (2) the deceased was in the lawful discharge of an official duty at the time of his death. Appellant did not object to the charge on these grounds.

Count two of the indictment stated in pertinent part:

It is further presented that in Harris County, Texas, JOHN HENRY SELVAGE, hereafter styled the Defendant, heretofore on or about July 30, 1979, did then and there unlawfully, intentionally and knowingly cause the death of ALBERT GARZA, hereafter styled the Complainant, a peace officer in the lawful discharge of an official duty, knowing at the time that the Complainant was a peace officer, by shooting the Complainant with a gun.

Considered in the light most favorable to the verdict, the evidence showed that Deputy Sheriff Garza, at the time he was killed, was wearing both his badge and his service pistol. As stated previously, when Garza approached appellant and Kelly, he removed his coat in order to prominently display these items. Exhibit photographs show that Garza's badge was on his belt and plainly visible. One eyewitness testified that as Garza approached appellant "he made a big thing of saying let me help them and taking his coat off so his gun and badge was visible." We find the evidence ample; the jury could reasonably have concluded that appellant was aware of Garza's status as a peace officer.

Further, appellant contends that the evidence was insufficient to support a finding that at the time he was killed Garza was in the lawful discharge of an official duty. While it is true that Garza initially entered Ventura's for personal business, when Stephen Ventura expressed his anxiety about appellant and Kelly, Garza assumed the role of a peace officer when he removed his coat to identify himself as a Deputy Sheriff and approached appellant in an attempt to deter him from wrongdoing.

The evidence is sufficient to lead a reasonable jury to conclude that Garza was in the lawful discharge of an official duty. ⁵ Ground three is overruled.

Appellant next challenges the sufficiency of the evidence to support the...