Casares v. State
703 S.W.2d 246
Tex. App.
1985
Check Treatment

*1 we could appellant’s not 69; reverse Id. at see also Henderson v. The jury is the judge exclusive of the credi- S.W.2d (fail 700 (Tex.Crim.App.1981) bility of the witnesses the facts. If ure jury to inform pro of all conditions jury gave weight more testimony error); J.G.’s bation is not fundamental O’Neal v. than to El-Mahmoudi’s, Doctor jury act- (Tex.Crim.App. ed properly. Johnson v. 1967). all, After under Article 42.12 Sec 6(a) 196 (Tex.Crim.App.1984) (en banc). Code, tion court, it is the trial jury, also note that not the partially imposes J.G.’s aunt which cor- conditions testimony. probation; roborated J.G.’s terms of The there is no aunt tele- funda mental, phoned appellant, overriding step-father, her reason to submit them once he jury. Appellant’s to the out on ground bail. She second testified that error is overruled. sexually J.G., admitted he abused although she did not discuss the details exactly judgment of the trial court is AF- what doing. admitted to FIRMED.

Viewing the light evidence

most favorable to jury’s verdict, penetration

find'the evidence of sufficient appellant’s overrule ground first

error. ground, his second appellant assigns error to the trial court’s charge failure to CASARES, Appellant, Richard jury imposed conditions to be on him jury should the find eligible for Texas, Appellee. STATE of probation. requested charge was tak directly en from TEX.CODE CRIM.PROC. No. 13-85-101-CR. 42.12, 6(a) (Vernon

ANN. art. Supp.1985). Appeals Texas, Corpus Christi. Appellant cites Kemner v. (Tex.Crim.App.1979) for the Nov. 1985. proposition that it was error for the trial court requested refuse his charge.

Kemner, however, the Court of Criminal possible held that conditions and probation

terms of could be submitted to jury; the Court did not they hold that

had to be. See Kemner at 409. We find

the correct rule of law Flores v. stated

State, 513 S.W.2d 66 (Tex.Crim.App.1974).

Although the Flores Court addressed the

propriety of a trial imposing court’s a con probation

dition of on a defendant which

was not submitted jury, to the the lan

guage the Court is relevant here. good

While it is practice considered

enumerate in the court’s pro-

bationary conditions which the court

impose probation recommended jury, the failure to so enumerate the

said conditions is not harmful to the ac-

cused. ...

attempted burglary apartment of an at the apartment building. third floor of an Offi- building up cer Revis went inside the and exiting Upon the elevator. the elevator on floor, pounding the third he heard a loud coming hallway. from one end of the Lawrence, Christi, James Corpus ap- for pounding very was forceful and was much pellant. knocking gain louder than one on a door to noise, entry. Walking towards the he came Jones, Christi, Grant Atty., Corpus Dist. him, upon walking a man towards whom appellee. for stopped. banging the officer The loud con- NYE, C.J., Before and DORSEY and BE- turning tinued. After a corner the hall- NAVIDES, way, JJ. appellant Officer Revis saw the walk-

ing away apartment doorway. from an splinters Wood were in the area of the OPINION apartment doorway and the door of the DORSEY, Justice. apartment hanging was loose from a secur- Appellant by jury was convicted chain, a ity jam being the door and door attempted burglary of a habitation. Based broken. on this prior conviction and a burglary con- Officer Revis hailed appellant for the viction the trial punishment court assessed stop, whereupon appellant began to run years’ at 25 confinement in the Texas De- stairway exit. He captured by was partment of Corrections. police other officer who was climbing Appellant’s ground sole of error chal- the stairs. lenges sufficiency of the evidence to record, examining the carefully After support the Among in- other any that the to find evidence were unable sufficiencies claimed is that there is no appellant his shoulder to support evidence to a certain apartment into the as effectuate his the indictment. The indictment was for The issue then is alleged in the indictment. attempted burglary provided and “with his shoulder” whether words appellant, specific intent to com- proven, or are surplusage and need not be burglary, mit “attempt to enter a hab- alleged must that once of such a character itation without the effective consent of Wil- State, Franklin v. proven. be Ramsey, owner, liam and with the in- (Tex.Crim.App.1983).

tent to commit theft doing the act of pushing against breaking and the door with language The test to determine whether shoulder, an act which amounted to in an proven indictment must is mere preparation more than mere that tended surplusage language is whether that de but failed to effect the commission of said an scribes essential element of the crime. offense_” (Emphasis added.) Upchurch (Tex. Crim.App., 1985). Where unnecessary mat ground error, his first appellant ter is of that which legally es complains that there is no evidence that he crime, sential to a proven it must be used his push against shoulder to even though needlessly stated. Weaver v. alleged indictment; break the door as State, (Tex.Crim.App.1977). that the words “with his shoulder” are descriptive of an essential element of the Weaver, charged aggra- the crime was crime, and as such surplus- are not mere deadly weapon. vated assault use of a age, proven. agree but must be We provided The indictment that reverse the conviction. intentionally “did then and there and know-

The evidence is police that two officers ingly deadly weapon, use to wit: a .22 responded to a call around Ruger pistol....” 1:30 a.m. of an As caliber automatic tion,” element of the crime

essential was the use in the indictment as was deadly weapon, it was necessary “pushing against of a a door.” weapon” alleged. “deadly The words “with his shoulder” unnecessar- detailed ily “pushing against description deadly weapon describe the means of not a hold, therefore, breaking.” necessary allegation, but since it was de because the words “with his shoulder” de- scriptive of an essential element of the *3 offense, an essential element of the offense, scribe deadly weapon, to wit: the it had unnecessarily, required the was albeit State alleged. proved to be as As the evidence prove appellant used his to to that shoulder weapon Luger, described the as a and not a “pushing against effectuate the and break- Ruger, the convictionwas reversed. Weav ing,” in accordance with the cases cited er, (citing 421 551 S.W.2d at Burrell v. proof, such above. As there was no we State, (Tex.Crim.App.1975); 526 799 S.W.2d the conviction. are must reverse State, (Tex. Rowland v. 523 S.W.2d 676 States, obliged by 437 Burks v. United State, Crim.App.1975); Goodwin v. 320 2141, (1978) U.S. 98 S.Ct. 57 L.Ed.2d (Tex.Crim.App.1959). S.W.2d 852 Massey, 98 S.Ct. Greene v. 437 U.S. Windham v. (1978), 57 L.Ed.2d 15 to order an (Tex. Crim.App.1982), analyzed by as the acquittal. See Franklin Appeals Upchurch, in an Court Criminal (Tex.Crim.App.1983). alleged attempted indictment for murder judgment of the trial court is RE- “by shooting gun” at her a which was with ACQUITTAL VERSED and an is ordered. amounting held to of “an act preparation” to more than mere and was NYE, Justice, concurring. Chief necessary proven. held to be See Frank agree majority IWhile with the that lin v. 659 S.W.2d 831. appellant’s acquit- mandates stare decisis (1) burglary if person A commits a with tal, justice for the I am distressed that owner, the he out the effective consent of easily people of Texas can so thwarted. (2) (3) portion of enters a habitation or appellant allegation But for the that the (4) building open public not then to the with attempt into used his shoulder to felony intent to commit a or theft. TEX. residence, af- his conviction would be (Vernon PENAL CODE ANN. 30.02 § allege firmed. The State did not have to 1974). attempted entry; appellant how the if, person attempt A commits a criminal such in the indict- yet, because was offense, an specific “with intent to commit ment, requires prove to the law State amounting he an act to more than does in his appellant fact use shoul- preparation mere tends but fails to so, der.1 Because the State did not do we in effect the commission of the offense compelled to conclude that this vari- TEX.PENAL CODE ANN. 15. tended.” proof ance and the between 01(a) (Vernon Supp.1985). appellant acquittal. Our deci- entitles to case, appellant indict- It defies today the instant sion defies reason. common however, Unfortunately, attempted burglary. ed for An essential it ade- sense. long-standing Tex- attempted burglary, quately element of the “an act tracks a rather law. amounting prepara- to more than mere as common presents that AND THE GRANDJURY further 1. The indictment said: Defendant, Casares, previous has Richard unlawfully ... did then and there with the ly felony, namely been of one Bur specific burglary, convicted intent to commit 13, 1981, glary, August enter a habitation without the effective con- on in Cause Number owner, 81-CR-348-G, Ramsey, sent of Willilam and with styled Texas vs. The State of by doing Casares, theft the act of the intent to commit Richard in the 319th District pushing against and a door with his (Emphasis sup County, Texas.... Nueces shoulder, an act which amounted to more plied) preparation than mere that tended but failed to effect the commission of said offense crete, concurring opin probably I would this con- pointed my As out affirm certainly gave ap- ion in Blevins v. viction. The indictment pet.), (Tex.App. Corpus being charged Christi no pellant notice that he was — long reform in area of attempted this the law is of the com- burglary overdue. appellate As an intermediate apartment; does plainant’s appellant not court, we must follow the law rules of appeal on lacked notice complain established and laid down the Court enough prepare his defense. adequate Appeals. opinion The majority appellant Nor would a conviction of correctly sets out variance even rule as prosecu- subject case him to further at bar recently reaffirmed the Court of Crimi attempted burglary; tions for we had State, 703 Upchurch v. nal conviction, affirmed would 1985). Neither (Tex.Crim.App., any ample have material available defeat ad Upchurch majority nor Court attempt by re-prosecute the State to rule, how behind the *4 dresses the rationale for this same offense on another trial. See Ap Indeed, the Criminal ever. 137; Ramos at Gill at 760. and purpose peals examined the has seldom Thus, purposes “prohibition of the the against variance. prohibition basis of the against rule” would not be offend variance 253, State, 56 v. Tex.Cr.R. Worsham by affirming appellant’s ed (1909), 439, of the object 444 the 120 S.W. Yet, past by decisions the of Crimi Court being avoid stated as “to variance rule was acquit Appeals require nal us to this de State, Tex. In Martin v. 152 surprise.” words, fendant. In other I believe (1948), 261, Court 213 548 the Cr.R. S.W.2d long purpose basic behind the rule has been of held: and, forgotten; sight because we have lost of the purpose requirement of the rule, purpose of the and rationale the allegation between the correspondence one, cases, many like have led variance this first, on proof put to an accused and is: to bizarre or absurd results. See Blevins him charge against the notice as to what 828, (Tex.App. S.W.2d v. 672 837-39 second, of; he in order that consists and 1984, (Nye, C.J., —Corpus pet.) Christi no can, in the necessary, plead the same if concurring). put event of a further I in propose that the entire case law this again jeopardy in for the same re-examined, keep- area to be while needs act. ing eye on the of the purposes a close twin rule. The of the variance current status Martin, v. 213 at 548. In Hall actually impor- case tends to the law defeat 156, (Tex.Crim.App. fully purpose tant that an indictment must 1980), the held Court that “a variance be apprise an accused of the offense tween an indictment currently charged Prosecutors have with. proof only is a material fatal variance allege the anything a disincentive to but preju a defendant to it would mislead his of an offense in indictment bare bones the recently dice.” This Court has (i.e., for fear some matter minute above-quoted language of affirm Martin to shoulder) may proved at used his not be the despite convictions variances between set trial and the accused then be free allegations proof. pleadings or the See people “a techni- on what the of Texas call (Tex.App. Ramos v. cality.” superi- not an accused have Would 1985, —Corpus pet.); no v. Christi Gill prosecutor freely allege or notice if could (Tex.App. Corpus expected good-faith — all he in matters 1984, ’d). pet. ref Christi prove at trial? Would not an accused then appellant’s present defense? If we were to examine case be better able his Is light purposes encourag- stated two behind this not what law should rule, answers, course, light ing? not in variance of the case obvious. instance, defendant, by seems to con- should law which now be set in For not the ending phrase could to the court’s “with his shoulder” through attorney, object his not in- proof surplus description. state’s then be defendant “used clude evidence that the discouragement feeling It is with a shoulder,” and, if the state did not either I with the ma- and frustration that concur proof, indictment or the correct ac- jority’s holding that acquit- defendant be entitled to the would quitted. contend that Few would otherwise, tal; it objection, without an done. today justice result reached has been happens in waived. This is what would be appeal its have The trial of this case and Sadly, current the trial of civil cases. time and cost the of Texas a lot of State status of the law does not allow for increasingly in money, resources which are goals. accomplishment these appel- supply. if a retrial of scarce Even An to the Texas Constitution amendment possible, that too would be lant could be by recently passed the voters this trial, or no costly; and the risk of an unfair majority. That State a two-thirds all, grows passes, as time new trial at amendment, along trig the statute with fade, become more memories and witnesses gered effectively eliminates passage, its But impossible to call at trial. difficult charg the doctrine of fundamental error jeopardy, a retrial of this because of double 16, ing law. Tex.S.J.Res. instrument See place. defendant for this crime cannot take (1985) Leg. (proposing an amendment 69th 1, States, 437 U.S. Burks United V, 12); Act of June to TEX. CONST. art. (1978). S.Ct. 57 L.Ed.2d ch. 1985 Tex.Sess.Law Serv. *5 considerations, appellant is Despite these (Vernon) codified at TEX.CODE [to 25-year sentence is today acquitted. His 1.14, 28.09, arts. 28.10 CRIM.PROC.ANN. he did not set aside. Not because (Vernon Supp.1986) The amendment and ]. burglarize apartment; not because wide-spread discontent the statute reflect door; and not because he did not break judicial system which allows offend with a only guilty; but because he was not acquitted “technicali ers to be on mere his foot to break down the may have used course, the courts do not bow ties.” Of shoulder. door instead However, public opinion. acquiesce people of this State cer will justice scales of have become Again, the tainly important factor to consider when lopsided. making reshaping

judges engaged

the common law. might possible have been to affirm this

It by severing phrase “with his

conviction attempted allegation of

shoulder” from the against (“by doing pushing the act shoulder”) with his a door descriptive treating portion of the HERNANDEZ, Appellant, surplusage. The Court of averment as Fidel M. repeatedly said that Appeals has v. as sur- unnecessary words be treated HERNANDEZ, Appellee. Lidia R. something not‘descriptive when plusage validity. to an indictment’s legally essential No. 13-85-047-CV. v. See Weaver Texas, Appeals (cited majority (Tex.Crim.App.1977) Corpus Christi. por- analysis, only the opinion). Under this language “by doing tion of the Nov. 1985. against breaking a pushing the act essential door” would be the Posey and means.”

“manner See (Tex.Crim.App.1977). The