B. L. “Stormy” BLACK, Appellant, v. The STATE of Texas, Appellee.
No. 61390.
Court of Criminal Appeals of Texas, Panel No. 3.
June 9, 1982.
Rehearing Denied Sept. 15, 1982.
629 S.W.2d 923
C. Sidney McClain, Dallas, for respondent.
PER CURIAM.
This cause arose out of a bill of review wherein Rita Moss sought to have set aside the judgment, order of sale and sheriff‘s deed in a delinquent ad valorem tax suit. The underlying suit was brought against Rush Properties for the delinquent taxes upon which the State took a default judgment. Prior to the State‘s taking its default judgment on August 26, 1976, the property was conveyed to two successive grantees. Subsequent to the default judgment, the property was conveyed to Moss on March 31, 1978. The deed conveying the property to Moss contained a provision that made Moss responsible for the taxes on the property and for any outstanding lien on the land. On November 8, 1978, H. R. Fender took the property by way of sheriff‘s sale and deed. On November 21, 1980, Moss was served with a writ of possession whereupon she filed her bill of review on November 27, 1980. Moss moved for summary judgment, which was granted on March 26, 1981. Fender filed no motion for summary judgment or motion in opposition to Moss’ motion for summary judgment, but did file a controverting affidavit.
The court of appeals reversed the judgment and remanded the cause to the trial court. 629 S.W.2d 192. The court of appeals held that Moss failed to allege or prove by summary judgment evidence that she was neither negligent nor guilty of a lack of diligence in preventing the execution of the order of sale in the tax suit and in redeeming the property under
Application for writ of error is refused, no reversible error.
Melvin D. Whitaker, Dist. Atty., Palestine, Robert Huttash, State‘s Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and DALLY, JJ.
John B. McDonald, Palestine, for appellant.
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for aggravated robbery.
In appellant‘s third ground of error he challenges the sufficiency of the evidence. Appellant maintains “the district court erred in failing to set aside the conviction because there was insufficient evidence to establish that the victim suffered a serious bodily injury.”
Clarence Curtis Jamerson, the complainant, testified as to the circumstances surrounding the robbery. He stated that he had been selling preludin, a controlled substance, in the town of Palestine for several months. Jamerson had purchased approximately 200 preludin pills in Houston shortly before the robbery. He related that a co-worker had told him that he wished to buy 100 preludin and a sale was arranged. When Jamerson arrived at the predetermined site for the transaction the co-worker had two other companions with him, one of which was identified by Jamerson as the appellant. Jamerson accompanied the trio in their car, ostensibly on a trip to retrieve the necessary money for the drug purchase. He was driven 9 or 10 miles to an unfamiliar backwoods area outside of Palestine. When the co-worker parked the car Jamerson was hit in the back of the head with a pistol. Jamerson testified he then fell out of the car and the appellant and the other companion pulled his pants down to his knees and began going through his pockets. In the course of going through his pockets, he stated the appellant shot him in the thigh.
The only evidence relating to the severity of the victim‘s wound is recorded in his own
“Q. [State‘s attorney] All right. Then did they say anything else to you when they got your money and your pills?
“A. No, sir.
“Q. What did you do next then?
“A. Ran off.
“Q. Did they let you go?
“A. Yes. His pistol was still on me. I just took off.
“Q. Where did you run to?
“A. Some lady‘s house.
“Q. About how far did you run?
“A. About a mile and a half or two miles.
“...
“Q. And then what happened?
“A. We went to the hospital.
“Q. Who took you to the hospital?
“A. Herman Bell.
“Q. All right. When you got to the hospital what did they do for you there?
“A. Gave me a tetanus shot and then the doctor found a slug and said I‘d have to have surgery.
“Q. Did you have surgery?
“A. Yes, sir.
“Q. Where the bullet went in did it also have a coming out place, or just the one hole?
“A. It just had one hole. I got the surgery scar.
“Q. Surgery scar?
“A. Yes.
“Q. How long did you stay in the hospital?
“A. I think it was three days.
“Q. How long was it before your leg healed up?
“A. A couple of months. Two or three months.
“Q. How long was it before you were able to return to work?
“A. I haven‘t went to work.
“Q. You didn‘t go back to work here?
“A. No, sir.
“Q. How long have you been out in California?
“A. A year.”
The blow to the head was minor and did not create any permanent damage. Jamerson, however, dropped his pants for the jury so that they could see the resultant scar left from the shooting.
The indictment under which appellant was charged alleged serious bodily injury, stating that: “While in the course of committing theft and with intent to obtain property of Clarence Jamerson, to-wit: United States currency, without the effective consent of the said Clarence Jamerson and with intent to deprive the said Clarence Jamerson of said property, did then and there intentionally and knowingly cause serious bodily injury to Clarence Jamerson by shooting him with a gun.” (Emphasis Supplied). Thus, in order to prove aggravated robbery, the State had the burden of showing that serious bodily injury resulted from appellant‘s acts.2 Compare, Davis v. State, Tex.Cr.App., 557 S.W.2d 303, and Robinson v. State, Tex.Cr.App., 553 S.W.2d 371 with Sidney v. State, Tex.Cr.App., 560 S.W.2d 679.
Serious bodily injury is defined in
The record reflects Jamerson ran 1 1/2 to 2 miles after being shot and that he subsequently spent three days in the hospital recovering from surgery on the wound. Although Jamerson testified the leg took two to three months to heal, he did not indicate he had any loss of use of the limb. The State offered no hospital records, nor did they call the physician, surgeon or nurse who administered to his wound. Likewise, there is no evidence to indicate Jamerson was unable to walk after leaving the hospital or that he had suffered permanent damage to his thigh. The evidence, when viewed in the light of the requirements of
In Ex Parte Harris, Tex.Cr.App., 600 S.W.2d 791 this Court was confronted with a similar problem. There we stated:
“In Moss v. State, 574 S.W.2d 542 (Tex.Cr.App.1978) (appellant‘s motion for rehearing), we held that, once this Court has found the evidence insufficient on an alleged aggravating element, retrial on the lesser included offense is not precluded. See Rogers v. State, 575 S.W.2d 555 (Tex.Cr.App.1979).” Id. at 792-93.
The appellant may be retried for the offense of robbery. The judgment is reversed and the cause remanded.
DALLY, Judge, concurring.
I concur in the result reached; however, I seriously question whether the indictment properly alleges either robbery or aggravated robbery. In the event of a new trial the indictment should be reviewed to determine that it properly alleges the offense of robbery in view of the evidence to be offered. Cf. Ex parte County, 577 S.W.2d 260 (Tex.Cr.App.1979); Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975). See also