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573 S.W.2d 231

Armstead v. State

Court of Criminal Appeals of Texas

Decided November 15, 1978

Court of Criminal Appeals of Texas · decided 1978-11-15

Cited by 8 later decisions — most recently February 1990

8 state decisions

Key passage — most relied on by later courts

““Now if you find from the evidence beyond a reasonable doubt that on or about the 17th day of June, 1974 in Harris County, Texas, the defendant, HORACE GEORGE CULLUM, JR. did, without the effective consent of Norma Battle the owner, take and exercise control over the corporeal personal property of Norma Battle to-wit, money from the possession of Norma Battle with intent then and there to deprive Norma Battle of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said money intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Norma Battle or defendant used or exhibited a deadly weapon, to-wit, a pistol then you will find defendant guilty of aggravated robbery as charged in the indictment.” (Emphasis supplied.)”

quoted by 1 later decision, including Cullum v. State

““Robbery “(a) A person commits an offense if, in the course of committing theft as defined in Chap ter 31 of this code and with intent to obtain or maintain control of the property, he: “(1) intentionally, knowingly, or recklessly causes bodily injury to another; or “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.””

quoted by 1 later decision, including Cullum v. State

Relies on Robinson v. State · Davis v. State · Smith v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1978-11-15

View the full empirical analysis of this case →

¶1 OPINION

ROBERTS, Judge.

¶2 This is an appeal from a conviction for robbery, an offense denounced by V.T.C.A., Penal Code, Sec. 29.02. 1 The punishment, enhanced by a prior felony conviction, was assessed by the court at twenty-five years’ imprisonment.

¶3 We conclude that the court’s charge to the jury at the guilt-innocence phase of the trial was fundamentally erroneous. Therefore, in the interest of justice, the judgment of conviction must be reversed. Article 40.-09(13), Vernon’s Ann.C.C.P.

¶4 Omitting the formal portions, the indictment charging appellant with robbery alleged in relevant part:

“. . . that Curley Armstead, Defendant, on or about the 1st day of May, A.D. 1976, and before the presentment of this indictment, in said County and State, did then and there while in the course of committing theft and with intent to appropriate property of Gloria Slavinski, the owner of the following described property, to-wit: cash money, without the effective consent of said owner and intent to deprive the said owner of said property, did then and there placed Gloria Slavinski in fear of imminent bodily iniu-ry.” (Emphasis supplied.)

¶5 Thus, it is readily apparent that the indictment charged appellant with robbery based *232 on the theory embodied in Sec. 29.02(a)(2), supra, that appellant “intentionally or knowingly threatened] or place[d] another in fear of imminent bodily injury or death.” 2

¶6 In applying the law to the facts in its charge to the jury, the court not only authorized the jury to convict appellant if they found him guilty as alleged in the indictment; but, the court also allowed the jury to convict appellant for robbery if they found that appellant “intentionally, knowingly, or recklessly caused bodily injury to said owner. . . Consequently, the jury was authorized by the charge to convict appellant under a theory described by Sec. 29.02(a)(1), supra, a manner of committing robbery which was not alleged in the indictment. This charge then, was fundamentally erroneous and the cases of Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Robinson v. State, 553 S.W.2d 371, 374 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303, 304 (Tex.Cr.App.1977), require that we reverse appellant’s conviction.

¶7 The judgment is reversed and the cause remanded.

1

¶8 . Section 29.02, supra, provides that:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”
2

¶9 . We express no opinion on the validity of this indictment.

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