*1 649 vehicle in a motor placed The sions and effects disagree. a warrant. We taming of privacy of expectation the during hearing appellant’s the with a reasonable State who then is argued to that the search a citizen suppress motion their content (other im- inventory, pursuant was a to valid for a traffic violation stopped inven- poundment public of automobile. Such in a driving alone speeding) while being in tory searches have been held as not security against way.1 appellant’s When violation of the Fourth Amendment easily rights is so privacy deprivation Dakota United States Constitution. South one to “[tjhere was no because shattered The does Opperman, supra. appellant v. given posses- have police could whom argue inspection allege not solo being operated the automobile” sion of bag pretext concealing the bank was “a motor vehicles light, ran a red by him as he investigatory police motive.” Dakota South have been effective- to each of us belonging supra, v. at 3100. We Opperman, S.Ct. otherwise ly protections removed from are left with the issue of whether or not guarantees the constitutional afforded Daniels v. legally impounded. car was and seizure.2 unreasonable search against I dissent. custodial appellant placed The under arrest. There was no one to whom the J., TEAGUE, joins. police could have possession Daniels v. The supra. automobile.
inventory prompted by presence have police
valuables in the car. The would in their left the duty they
been derelict had bag
automobile on the with a bank street inventory on the front seat. The
lying not bag clearly contents of the ANTUNEZ, Appellant, Eduardo Garcia excessive; bag’s purpose is to hold mon- ey papers, policy or other valuable and the Texas, Appellee. The STATE protecting considerations of the owner’s property protecting police against 63725. No. are clear- property claims of lost and stolen Appeals of Court of Criminal ly invoked in this situation. Da- See South En Banc. Opperman, supra. bag kota v. The bank lawfully and its contents were seized. 9, 1983. Feb. rehearing is appellant’s on Motion Dissenting Opinion
overruled. Opinion Written Rehearing Without 30, 1983. March CLINTON, Judge, dissenting. join tolling
I do not the deathknell I, 9,
the Fourth Amendment and Rights papers, posses-
Texas Bill of vis a vis Supreme after the stipulation parties is that is that 2. Often overlooked 1. The between the inventory upheld an placed appellant the United States arrest “for Court of officers under po- impounded under weapon” any carrying of an automobile demonstrat- search —without caretaking procedures, Dakota v. rendering in South lice ed consideration of circumstances 96 S.Ct. by way Opperman, U.S. “innocent” of one that act unlawful or Supreme (1976), Court provision L.Ed.2d 1000 Penal or another of V.T.C.A. it to be an unreasonable may, held South Dakota But be that as it the officers 46.03. State constitution. under its state arrest search authorized to effect a custodial were still (S.D.1976). To violation, Opperman, 247 N.W.2d without so that even for the traffic privacy citi- rights our own protect weapons still loses his offense the citizen South well to emulate do rights privacy. zens this Court would Dakota. *2 found a jury to be guilty of the lesser included 29.02, offense of Section supra. Punishment, enhanced by prior conviction, was assessed at imprison- life 12.42(b), ment. supra. Section At the out- set we confront unassigned fundamental er- ror in the jury charge guilt innocence, or which we justice. consider in the interest of 40.09, 13, V.A.C.C.P. The court pertinent instructed the in part as follows: you “Now if find from the evidence beyond a reasonable doubt that on or day March, 1979, about the 6th in El defendant, Paso County, ANTUNEZ, EDUARDO GARCIA did then and there unlawfully while in the course of committing theft and with in- tent to property obtain of ROBERT UR- RUTIA, to-wit: Currency, American without the effective consent of the said URRUTIA, ROBERT with intent to de- prive the said ROBERT URRUTIA of property, then by using did and there and exhibiting deadly weapon, to-wit: a knife that in the manner of its use and intended capable causing use was bodily injury, death and serious intention- ally and threaten knowingly place and ROBERT in of imminent URRUTIA fear you and then will aggrava- find the defendant GUILTY of robbery charged ted as in the indictment (Verdict ‘B’). Form If you beyond find from the evidence defendant, reasonable doubt EDUARDO GARCIA com- Paso, Dick Stengel, El appellant. mitted the robbery offense of as herein Simmons, Steve W. Atty., Dist. and defined, you but have a reasonable doubt Leeds, Paso, Stuart Asst. Atty., Dist. El as to whether he or used exhibited Huttash, Robert Atty., State’s and Alfred deadly weapon committing said rob- Walker, Austin, Asst. Atty., State’s for the will bery, find defendant State. guilty only robbery, aggra- and not of (Verdict 1’).” robbery vated Form ‘B— The court’s rather law merely stating propositions abstract OPINION general principles contained stat CLINTON, Judge. utes, very the law to the clearly apply must Appellant of the case. Williams v. charged by indictment facts with the aggravated robbery, offense of In the 29.03(a)(2), V.A.T.S. Penal present and was case the contained certain if, offense “(a) commits an person the law of A principles governing abstract theft as defined committing the course of principles robbery apply but did not those with intent this code and Chapter 31 of specific facts of this case. the prop- control of or maintain to obtain speculate left about erty, he: specific appellant’s part, which actions on if knowingly, “(1) intentionally, true
believed *3 to an- bodily injury recklessly the would con- causes under evidence of this other; For that or robbery. stitute the offense of judgment reason the must be reversed knowingly “(2) intentionally or the cause remanded. another fear places threatens or injury or death. bodily imminent DAVIS, ONION, ?.J., McCOR- and W.C. section is “(b) under this An offense CAMPBELL, JJ., dissent. MICK and degree.” felony of the second Code, V.T.C.A., (Aggrava- 29.03 Penal § OPINION ON OVERRUL- DISSENTING Robbery), provides: ted ING OF STATE’S MOTION FOR if he commits an offense “(a) person A LEAVE FILE FOR TO MOTION defined in Section robbery as commits WRITTEN REHEARING WITHOUT code, and he: 29.02 of this OPINION “(1) causes serious ONION, Presiding Judge. another; or weap- deadly exhibits a “(2) uses or again, Color me amazed this time with on. deep Aldrighetti shade of concern. See section is (Tex.Cr.App. “(b) An offense under this (Emphasis
1974) major degree.” first (dissenting opinion). felony The bare ity of five mo judges supplied.) overrules the State’s rehearing tion leave to file a robbery the above that It from is clear opinion. without written Such action is the de- robbery if aggravated can become given incredible the circumstances of this deadly weapon. or exhibits a fendant uses case. established 29.03(a)(2). It is also well § offense is a lesser included robbery original On submission the conviction was 37.09, robbery. See aggravated “unassigned reversed because of fundamen- V.A.C.C.P. charge guilt tal error” in the court’s at the
stage objection of the trial. There was no primary indicted for Appellant was ground appeal to the no of error on robbery under aggravated offense of yet found fun- majority raised and the court ab- charge 29.03(a)(2). In to the charge relating damental error in the jury: stractly instructed appellant lesser included offense of which defendant, EDUARDO GARCIA “The was convicted. indict- charged by stands rob- aggravated the offense ment with indictment
Appellant
charged
committed
to have been
bery, alleged
He was found
aggravated robbery.
with
March, 1979.
day
6th
about
of the lesser included
guilty by
jury
found
After the
has
offense of
charge the defendant
“To this
conviction
allegations
prior
as true the
guilty.
not
pleaded
aggravated robbery, punishment
connection,
are
“In this
imprisonment.1
at life
assessed
following definitions:
if,
robbery
“A
commits
V.T.C.A.,
(Robbery),
person
Penal
29.02
in-
and with
committing theft
course
provides:
jury.
felony
prior
was submitted
alleged
prior
conviction
con-
one
indictment
two
1. The
Only
punishment.
victions for enhancement of
tent to obtain or maintain control of the
(1981),
Practice”
pp. 145-148. There was
property, he intentionally or knowingly
objection
no
to said
any special
nor
threatens or places another
requested
fear of
charges. See Articles 36.14 and
36.15,
imminent bodily injury or
V.A.C.C.P.
person
“A
aggravated
commits
robbery
In the
trial court informed the
if he
robbery
commits
and he uses or
jurors as to the facts which they must find
deadly
exhibits a
weapon.”
in order to convict for aggravated robbery.
thereafter,
Immediately
after having earli-
Other
appropriate
terms were
er and abstractly
told the
that a
defined. The court in applying the law to
person
aggravated robbery
commits
if he
charged
facts
jury:
commits robbery and uses or exhibits a
“Now, if you find from the evidence
deadly weapon, the court
jur-
instructed the
beyond that on or
ors that
in order to convict for robbery,
about
March,
the 6th day
in El
*4
they must
necessary
find the same facts
for
Paso County,
defendant,
a conviction
aggravated robbery, except
ANTUNEZ,
EDUARDO GARCIA
did
they
that
must have a reasonable doubt as
then and there unlawfully while in the
to whether
deadly
weapon was used or
course of committing theft and with in-
exhibited.
tent to obtain property of ROBERT UR-
RUTIA,
At the guilt stage
to-wit:
of the trial
the jury
American Currency,
without
returned the following
the effective
verdict:
consent of the said
URRUTIA,
ROBERT
with
“We,
intent
to de-
Jury,
in the above entitled
prive the said
cause,
ROBERT
defendant,
URRUTIA of
and numbered
find the
property,
did
ANTUNEZ,
then and there by using
EDUARDO
GARCIA
and exhibiting a deadly weapon, to-wit:
GUILTY of the lesser
included offense
a knife
that in the manner of its use and
intended use
capable
of causing
/s/ Blanca
Prona
S.
death and serious bodily injury, intention-
FOREMAN”
ally and knowingly threaten
place
and
It is
they
obvious that
knew
ROBERT URRUTIA in fear of imminent
convicting
were
the appellant of the lesser
and
then
will
you
included offense and not the offense actual-
find the defendant GUILTY of aggrava-
ly charged in the indictment.
ted robbery as charged in the indictment
Appellate
charge
courts should view the
(Verdict
‘B’).
Form
whole,
as a
and review should not be limited
you
“If
find from
the evidence
parts
charge standing
of the
alone.
defendant,
a reasonable doubt that
State,
(Tex.Cr.
v.
Jackson
591
820
S.W.2d
EDUARDO GARCIA
com-
State,
App.1979); Slagle v.
570
916
S.W.2d
mitted the offense of robbery as herein
State,
v.
(Tex.Cr.App.1978); Crocker
573
defined,
you
but
have a reasonable doubt
Pittman v.
(Tex.Cr.App.1978);
S.W.2d 190
as to whether he used or
exhibited
State,
(Tex.Cr.App.1977);
554
190
S.W.2d
deadly weapon in committing said rob-
Crim.Law,
822(1). All
Tex.Digest,
12A
bery,
you
then
will find the defendant
instructions must be looked to in
guilty only
robbery,
aggra-
and not of
is
determining
particular portion
whether a
(Verdict
‘B-l’).
vated robbery
Form
State,
Mobley
erroneous.
v.
89 Tex.Cr.R.
you
“If
have a reasonable doubt as to
646,
(Tex.Cr.App.1921);
robbery,
acquit
will
the defend-
499,
(Tex.Cr.App.
Tex.Cr.R.
1981), citing Robinson v. 596 S.W.2d view surprising case is of the court’s 130 (Tex.Cr.App.1980). (Tex. recent decision McClure State whole, 62,125, 3/9/83). When the Cr.App. is reviewed as a # There error, there is clearly no much panel less funda- court en banc held that *5 course, mental error. Of there have con may original be oth- submission should not er ways to submit the lesser included of- erroneous of evi sidered the admission fense or even better way, but this does not an of error. unassigned ground dence as render the manner of submission in the The McClure en banc court wrote: instant case was erroneous. The charge did at trial waived may “Just as error be not, as the opinion on original submission object, appeal may failure to error states, leave “the to speculate about be abandoned failure to assert it in the specific which actions appellant’s part, on if brief. Because the issue was not raised believed true Court, by appellant panel before this under the evidence of this would con- not have considered it. The mat- should stitute the offense robbery.” Rather ter does not constitute fundamental error leaving than to the jurors “speculate” to interest that should be considered ” about the facts necessary justice.. constitute the .. lesser included offense of robbery, the trial opinion apparently en McClure banc court charge very its effectively and long enough has not survived for McClure’s intelligently informed the of such rehearing to considered. be So facts. much the short life of the McClure opinion despite
It is the fact that the author of true that fundamental error exists voting judges where the McClure and several other court in its fails utterly today’s bare ma- part therefor constitute apply State, the law to the Perez facts. case. It is difficult for jority instant 455 (Tex.Cr.App.1976); S.W.2d Harris the bench and bar to determine which road (Tex.Cr.App.1975); week- traveling. this court seems to be Our (Tex.Cr. Williams v. ly maps utterly are useless. Clark, App.1977); parte Ex few quarrel And would uncalled, complete- I the totally dissent to with the statement in the opinion origi majority in unwarranted action of the ly nal submission the court’s rath reversing this case. er merely stating propositions abstract general DAVIS, of law and principles continued in McCORMICK and CAMP- W.C. JJ., BELL, opinion. the statutes in this clearly apply join must the law to