Wells v. State
| Citation | 634 S.W.2d 868 |
| Decision Date | 01 April 1982 |
| Docket Number | No. 01-81-0474-CR,01-81-0474-CR |
| Parties | Marshall WELLS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Kenneth W. Sparks, Houston, for appellant.
Larry P. Urquhart, Asst. Dist. Atty., Houston, for appellee.
Before SMITH, BASS and DYESS, JJ.
This is an appeal from a conviction of the offense of robbery, in which the jury found that the appellant had twice before been convicted of a felony; the sentence, life imprisonment.
The complaining witness testified that on the afternoon of October 3, 1980, he noticed three men in an old white pickup pull up to his liquor store in Crosby, Texas. The three men, one of them being the appellant, entered the store and one requested a half pint of whiskey, whereupon the complainant turned to get the bottle off of the shelf. When he turned back around he heard someone say, "Get down," and he saw that one of the men had Mr. Hand, an employee, in a headlock. At this time the complainant got down behind the counter as he was told. One of the men who had entered the store, came behind the counter and took the complainant's wallet and a money box. The complainant did not see what the appellant was doing during this robbery. The men forced the complainant and Mr. Hand into the back room and told them to stay there. About a minute after the three men had left, the complainant ran from the room, took down a part of the pickup's license number, and called the police. He then made an inventory of what was stolen, which was $65 to $75 in loose coins, several Canadian coins and some American currency, consisting of one, five and ten dollar bills. Subsequently a police officer took the complainant to Verallo Road, where the complainant identified the pickup and the three men who robbed the store. Three days later the stolen property was returned, including some of the Canadian coins.
Mr. Hand, the employee, testified that a co-defendant in this case, Mr. Armstrong, grabbed him around the head, put a gun to his stomach, and told him to get down. Mr. Hand was not able to see the face of the man who took the money box and wallet, nor did he positively identify the appellant.
A police officer testified that while he was responding to the robbery call, he came upon and pursued the vehicle and occupants described in the report. The police officer turned on his siren and flashing lights, and pursued the pickup for about four or five minutes, reaching speeds of seventy-five to eighty miles per hour. The driver of the pickup truck finally pulled over and the officer ordered the men out of the truck. The men's pockets were bulging with wadded up bills, and loose change and bills were dumped on the floor of the truck. He further testified that the wallet, coin box, and pistol were recovered, and the appellant was the driver of the truck.
The appellant asserts in his first ground of error that the trial court erred in permitting the jury to separate after the charge had been read, and that the appellant did not consent to such separation.
The record reflects that the trial court, after having granted the appellant's motion for an instructed verdict as to aggravated robbery, erroneously submitted a verdict form allowing the jury to find the appellant guilty of aggravated robbery instead of robbery. It further reflects that the presiding trial judge had been called out when the jury reached its verdict and that another judge received the verdict. Although the State informed the substitute judge that the verdict form was incorrect, the substitute judge excused the jury for a noon recess. After the noon recess, the presiding judge returned, and when the jury's verdict of guilty on the incorrect verdict form was brought to his attention, he stated into the record that the verdict form was incorrect and that it was inadvertently submitted. He then read a supplemental charge to the jury charging the defendant with the offense of robbery, and resubmitted the case to the jury for its decision. The jury found the appellant guilty of robbery under the supplemental charge.
The appellant complains in his first ground of error that reversible error was committed when the jury was permitted to separate for lunch after the court had received a guilty verdict of aggravated robbery and prior to the time the proper verdict form was submitted to the jury.
At the time the jury was recessed for lunch the appellant objected to the charge and verdict itself, not the separation by the jury. Subsequently the appellant filed a bill of exception in which he stated:
he never consented to any separation of the jury from the time that they entered their verdict of guilty as to aggravated robbery until such time as they entered their verdict of guilty to robbery. Furthermore, that the jurors were allowed to separate between the entry of the above two verdicts and were allowed to go to lunch and separate among themselves without being maintained in a group in the company of a baliff or any other officer.
Article 35.23 of the Code of Criminal Procedure states that when the court has given its charge to the jury, the jury shall stay together until a verdict has been rendered, unless they are permitted to separate by permission of the court with the consent of each party. This statute is mandatory, and in the absence of a showing of personal consent of the appellant, the burden is on the State to rebut the presumption of harm. Goodall v. State, 501 S.W.2d 342 (Tex.Cr.App.1973).
The State contends that the presumption is overcome due to the unusual circumstances of the case and it asserts that the subsequent correct verdict was a finding of guilty of a lesser included offense of the first verdict. It reasons that since the appellant was necessarily found guilty of robbery in the first verdict, a finding of guilty of the offense of aggravated robbery subsumes a finding of guilty of robbery, and therefore the appellant cannot be heard to complain of harm by the second verdict.
A similar situation arose in Jason v. State, 589 S.W.2d 447 (Tex.Cr.App.1979), except in that case the defendant was charged with aggravated rape of a child, but the verdict form required the jury to find the defendant guilty or not guilty of "rape of a child, as charged in the indictment." The defendant in that case claimed that the omission of the word "aggravated" from the verdict required a reversal, but the Court of Criminal Appeals disagreed, stating that since every phase of the trial involved aggravated rape of a child, then the language of the verdict should be interpreted in light of the indictment and charge.
In the present case, the charge of the court stated that the defendant is charged with the offense of aggravated robbery, but the content of the charge, i.e. the law as applied to the facts, the definitions and the instructions, is worded in such a manner as to be applicable to the offense of robbery, not aggravated robbery. The original verdict form was worded in such a manner as to find the defendant guilty or not guilty of the offense of aggravated robbery. The supplemental charge submitted to the jury read as follows:
Ladies and gentlemen of the jury:
The court submitted to you a charge which contained a verdict sheet with the option to acquit or to find the defendant guilty of the offense of aggravated robbery. The verdict of guilty of aggravated robbery was improperly submitted to you. The verdict sheet should read:
We, the jury find the defendant, Marshall Wells, not guilty of robbery.
Foreperson
We, the jury, find the defendant, Marshall Wells guilty or robbery.
You are therefore instructed to consider your verdict concerning the offense of robbery and render your verdict on that charge alone disregarding aggravated robbery.
The supplemental charge was then signed by the presiding judge of the trial court.
The appellant does not complain about the use of the supplemental charge, but he does complain about the court permitting the jury to separate after the charge had been read when the appellant had not consented to such separation. We are of the opinion that the State has sustained its burden of proof to rebut the presumption of harm by a showing of the unusual circumstances of this case. The offense of robbery is of necessity included in the offense of aggravated robbery. With the exception of the clerical error of typing in aggravated robbery rather than robbery in the charge, the charge was a proper charge. The appellant's first ground of error is overruled.
The appellant's second ground of error alleges that the trial court erred by failing to properly apply the law to the facts in the instructions to the jury regarding the appellant's status as a party to the alleged offense. The appellant urges that since there was no evidence to support the fact that the appellant was acting alone, that the trial court erred when it allowed the jury to convict the appellant as "acting alone or together as a party." The Texas Court of Criminal Appeals has addressed this contention in Savant v. State, 544 S.W.2d 408 (Tex.Cr.App.1976), and in Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1978). The court, in both cases, held that even though the evidence did not support a conviction on a theory that the defendant was acting alone, where no timely objection is made then fundamental error did not exist. The issue, then, is whether appellant properly objected to the charge in this case. The appellant's objection is as follows:
And further, that the Court's charge regarding parties is incorrect contained on page three of the indictment beginning with paragraph three; and further, that the evidence introduced by the State in this case does not show that this defendant Wells was a party to the offense and the language on parties does not purport to deal with him individually and...
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