Public-domain · open source
OpenJurist

576 S.W.2d 382

Docket No. 53807.

Gooden v. State

Charles Ray GOODEN, Appellant, v. The STATE of Texas, Appellee.

Court of Criminal Appeals of Texas

Decided January 24, 1979.

Court of Criminal Appeals of Texas · decided 1979-01-24

Key passage — most relied on by later courts

“"Now, if you find from the evidence, beyond a reasonable doubt, that the defendant, DONALD RAY MORRIS, acting either alone or with another person, or persons, on or about the 17th day of September, 1975, in Hunt County, Texas, did then and there while in the course of committing theft, as that term is defined to you in this charge, and with intent to obtain or maintain control of the property of Mary Lou Anderson to-wit: lawful money of the United States without the effective consent of the said Mary Lou Anderson, of said property, did then and there intentionally or knowingly threaten or place the said Mary Lou Anderson 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, acting either alone or with another person or persons, used or exhibited a deadly weapon, namely a firearm, then, you will find the defendant, DONALD RAY MORRIS guilty of aggravated robbery, as charged in the indictment. If you do not so find and believe from the evidence, beyond a reasonable doubt, then, you will find the defendant not guilty of aggravated robbery." (Emphasis added).”

quoted by 3 later decisions, including Morris v. State, Cullum v. State

““Now if you find, from the evidence, beyond a reasonable doubt that on or about the 8th day of April, 1980, in Cameron County, Texas, the Defendant, ALFREDO C. MARTINEZ, with the intent to deprive Donald Wayne Keener, the owner of his personal property, to-wit, United States currency belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from said Donald Wayne Keener said United States currency and that the Defendant, in doing so and with the intent to obtain or maintain control of said United States currency, then and there intentionally or knowingly threatened or placed said owner in fear of eminent bodily injury or death and if you find from the evidence beyond a reasonable doubt that the defendant, in committing the foregoing acts, if you do so find, used or exhibited a deadly weapon, to-wit: a firearm which was then and there in the manner of its use, capable of causing serious bodily injury or death, then you will find the Defendant guilty of AGGRAVATED ROBBERY, as charged in the indictment.””

quoted by 3 later decisions, including Moring v. State, Young v. State

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

Good law ✅— No negative treatment on recordhow we know

Decided 1979-01-24

How this case has been cited

Cited by 29 later decisions — most recently March 1998 · most notably Cumbie v. State (1979), Harris v. State (1983)

27 state decisions

170197919801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1William C. Denton, Houston, for appellant.

¶2Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.

¶3Before the court en banc.

¶4

OPINION ON APPELLANT'S MOTION FOR REHEARING

¶5W. C. DAVIS, Judge.

¶6Appellant was convicted of the offense of aggravated robbery, and the jury assessed his punishment, enhanced by one prior felony conviction, at twenty-five years confinement in the Texas Department of Corrections.

¶7On original submission, this appeal was affirmed by this Court in a per curiam opinion, 558 S.W.2d 897, delivered December 7, 1977. Leave to file appellant's motion for rehearing was granted on January 18, 1978. In this motion for rehearing, appellant raises a ground of error not previously raised on original submission. He now contends that there is fundamental error in the court's charge to the jury.

¶8The indictment in the instant case alleges in part that appellant:

"... did then and there unlawfully while in the course of committing theft of one camera owned by Jack Robinson, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol ..."

¶9The trial court charged the jury:

*383 "Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of January, 1975 in Harris County, Texas, the defendant, Charles Ray Gooden, either acting alone or together with another or others, did without the effective consent of Jack Robinson the owner, take and exercise control over the corporeal personal property of Jack Robinson to-wit, one camera from the possession of Jack Robinson with intent then and there to deprive Jack Robinson of said property, and that said defendant, in so doing, and with intent to acquire and maintain control of said camera 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 Jack Robinson 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.
"If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty ..."

¶10The indictment in the instant case alleged robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), by alleging that the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death. The indictment then alleged the aggravating factor "by using and exhibiting a deadly weapon, namely, a pistol." V.T.C.A., Penal Code, Section 29.03(a)(2).

¶11The instant indictment and charge are practically identical to those in Davis v. State,557 S.W.2d 303 (Tex.Cr.App.1977) and Robinson v. State,553 S.W.2d 371 (Tex. Cr.App.1977). As this Court held in Robinson and reaffirmed in Davis,

"This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A., Penal Code Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment."

¶12In both cases, we held this error in the charge to be fundamental, requiring reversal even though no objection was made to the charge at trial. In the instant case, no objection to the charge was made, but since the charge authorizes a conviction on a theory not charged in the indictment, we find fundamental error.[1]

¶13Appellant's motion for rehearing is granted and the judgment is reversed and the cause remanded.

¶14DALLY, Judge, concurring.

¶15The jury instruction does authorize a conviction for a theory not charged in the indictment. Such a charge constitutes error; however, there was no objection to the charge at the time of trial. I believe that in these circumstances, where no objection to the charge has been made in the trial court, this Court, should determine from the record whether harm resulted from the giving of the erroneous charge. See the opinion which I authored while a Commissioner in Williams v. State,535 S.W.2d 352 (Tex. Cr.App.1976). However, the majority of this Court has since held that the error is *384 fundamental and reversal is mandated in instances such as this. E. g., Robinson v. State,553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State,557 S.W.2d 303 (Tex.Cr.App. 1977); Edmond v. State,566 S.W.2d 609 (Tex.Cr.App.1978); Jones v. State,566 S.W.2d 939 (Tex.Cr.App.1978); Smith v. State,570 S.W.2d 958 (Tex.Cr.App.1978); Brewer v. State,572 S.W.2d 940 (Tex.Cr. App.1978); Armstead v. State,573 S.W.2d 231 (Tex.Cr.App.1978); Johnson v. State,573 S.W.2d 778 (Tex.Cr.App.1978); Cleland v. State,575 S.W.2d 296 (Tex.Cr.App.1978); Fella v. State,573 S.W.2d 548 (Tex.Cr.App. 1978); Bridges v. State,574 S.W.2d 143 (Tex.Cr.App.1978); Donald v. State,574 S.W.2d 119 (Tex.Cr.App.1978); Moore v. State,574 S.W.2d 553 (Tex.Cr.App.1978).

¶16I have again expressed my view which I still believe is correct, but the law of this State is now expressed by the majority in the numerous cases cited; therefore, I concur in the reversal of the judgment in this case.

¶17DOUGLAS and TOM G. DAVIS, JJ., join in this concurring opinion.

NOTES

¶18[1] I believe the better reasoning applicable to this case is that in Williams v. State,535 S.W.2d 352 (Tex.Cr.App.1976) but since this Court has overruled Williams by the Robinson and Davis cases, I reluctantly concur.

/576/sw2d/382 · .json · Public domain