Public-domain · open source
OpenJurist

601 S.W.2d 358

Ex Parte Snelson

Court of Criminal Appeals of Texas

Decided July 9, 1980

Court of Criminal Appeals of Texas · decided 1980-07-09

Cited by 8 later decisions — most recently February 1986

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 26th day of May, 1975 in Harris County, Texas, the Defendant, DAN THOMAS, did, without the effective consent of O. D. HALLMAN, the owner, take and exercise control over the corporeal personal property of O. D. HALLMAN, to wit, cash money and a wrist watch, from the possession of 0. D. HALLMAN, with the intent then and there to deprive O. D. HALLMAN of said cash money and wrist watch, intentionally and 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 used or exhibited a deadly weapon, to wit, a pistol, then you will find the Defendant guilty of aggravated robbery as charged in the indictment.” (Emphasis added.)”

quoted by 2 later decisions, including Thomas v. State, Morgan v. State

““The precise question presented is whether in an aggravated robbery case fundamental error attends a charge of the court to the jury applying the law to the facts which omits the specific intent element of robbery as alleged in the indictment — ‘with intent to obtain and maintain control of the property’ — but, instead states it as ‘with intent to appropriate the property.’ When, as here, the charge elsewhere instructs the jury that ‘appropriate’ means ‘to acquire or otherwise exercise control over property other than real property.’ we find that such a charge is not fatally defective.” pp. 834 — 5.”

quoted by 1 later decision, including Martinez v. State

Relies on Ex Parte Cannon · Ex Parte County · Ex Parte Garcia

Good law ✅— No negative treatment on recordhow we know

Decided 1980-07-09

View the full empirical analysis of this case →

¶1 OPINION

DALLY, Judge.

¶2 The petitioner, in this post-conviction proceeding, Art. 11.07, V.A.C.C.P., seeks to have set aside a judgment of conviction for aggravated robbery.

¶3 The petitioner asserts that the conviction is void in that the trial court did not have jurisdiction because there was a failure to allege in the indictment a necessary element of the offense. See Valdez v. State, 550 S.W.2d 88 (Tex.Cr.App.1977); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Ex parte Garcia, 544 S.W.2d 432 (Tex.Cr. App.1976). It was not alleged that the petitioner had the “ . . . intent to obtain and maintain control of the property

¶4 To allege the offense of aggravated robbery, V.T.C.A. Penal Code, Sec. 29.03, it is first necessary to allege the elements of robbery as defined by V.T.C.A. Penal Code, Sec. 29.02. Sec. 29.02 provides that a person commits an offense if in the course of committing theft as defined in Chapter 31 of the penal code he with the intent to obtain or maintain control of the property either intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

¶5 The indictment under which the petitioner was convicted wholly fails to allege that the petitioner had the “ . . . intent to obtain and maintain control of the *359 property . . . .” Since this allegation, a necessary element of the offense, was not made in the indictment, it is insufficient to allege the offense. See Ex parte County, 577 S.W.2d 260 (Tex.Cr.App.1979).

¶6 The petitioner is entitled to the relief he seeks; the judgment of conviction will be set aside and the indictment dismissed.

¶7 It is so ordered.

/601/sw2d/358 · .json · Public domain