Cleland v. State
575 S.W.2d 296
Tex. Crim. App.
1978
Check Treatment

*1 Texas, Appellee. The STATE of ROBERTS, Before PHILLIPS and VOL- LERS, JJ. No. 54100. Appeals

Court of Criminal OPINION Panel No. 3. ROBERTS, Judge. 12, April 1978. This is an appeal from a conviction for Dissenting Opinion On State’s Motion For robbery. After a trial jury, the trial 24, Rehearing Denied Jan. judge assessed appellant’s punishment years’ at fifteen confinement in the Texas Department of Corrections.

The record reflects that the appellant sprayed mace in the eyes manager a service station in Houston and took mon- ey register from the cash in the station. The appellant apprehended fleeing from the scene of the crime. outset,

At the we are confronted with fundamental error in the which dic- judgment. tates that we reverse the V.T.C.A., Code, 29.02(a) Penal Section states:

“(a) A person if, commits an offense committing the course of theft as defined Chapter 31 of this code and with intent to obtain or prop- maintain control of the erty, he: “(1) intentionally, knowingly, reck- another; lessly bodily causes injury to “(2) intentionally or knowingly threat- places ens or another in fear of immi- nent injury or death.” In the case the indictment stated pertinent part July that on committing in the “while course theft money by Stephanie owned styled Complainant, hereafter with intent to obtain and maintain con- property, trol of the intentionally and cause Complainant.” It is clear that the indictment Houston, L-fngversen, robbery under Antonia M. committed V.T.C.A., Code, 29.02(a)(1), by Penal appellant. Section

297 aggravated V.T.C.A., alleging appellant intentionally bery was that the under Penal Code, caused to the knowingly bodily injury 29.03(a)(2). However, and Section the complainant. charge in Robinson the jury authorized to every convict defendant the under conceiva- portion judge’s pertinent The of the trial Code, V.T.C.A., ble under theory Penal Sec- charge stated: 29.02(a) 29.03(a). tions and there We stat- you “Now if find from the evidence ed: on or beyond a reasonable doubt that charge “While the authorized convic- day July, about the of A.D. in 26th upon theory tion the in alleged the indict- defendant, County, Harris the ment, also upon it authorized a conviction Cleland, did, the David Travis without every theory other conceivable under Sec. Wolff, Stephanie effective of the consent 29.02 and Sec. 29.03 which was not al- owner, take exercise control over the and leged in the We indictment. conclude property Stephanie corporeal personal that fundamental error is reflected and Wolff, wit, money, possession the conviction . must be re- Stephanie with intent and then Id. at versed.” 375. Stephanie there to of said deprive Wolff the in so money, and that said State, Davis See also v. 557 S.W.2d 303 doing, acquire and with intent and (Tex.Cr.App. 1977); State, Dowden v. 537 money, maintain control of said inten- (Tex.Cr.App. 1976). tionally, knowingly, or caused recklessly case, present charge the the authorized bodily injury to said owner or intentional- the jury to convict the appellant on a theo- ly knowingly or said placed threatened or ry alleged not in the indictment. This was owner in fear of imminent bodily injury fundamental error. death, you or then will find the defendant judgment is reversed and the cause guilty robbery charged in indict- the remanded. ment. you “Unless so find from the evidence VOLLERS, J., dissents. doubt, beyond a you reasonable or if the Before court en banc. thereof, a reasonable doubt will ac- you quit the defendant.” DOUGLAS, Judge, dissenting on State’s It is clear that the charge authorized a rehearing. motion for V.T.C.A., robbery conviction for under Pe- original submission, On an objec- without Code, 29.02(a)(1), nal jury Section if the tion charge presented to the court found, among things, appel- other that the a brief without filed in the trial court intentionally lant and knowingly caused calling any the court’s attention to error in bodily injury Stephanie Wolff. How- charge, the ever, Court reversed this equally is clear that the also cause on fundamental error. authorized a conviction for under robbery Code, V.T.C.A., 29.02(a)(2), Penal Section The error was not reversible found, jury among the things, other that in the charge Such an error was held not to intentionally be reversible error by all members of the placed Stephanie threatened Wolff State, Court Williams v. S.W.2d 352 fear of imminent or death. was charged Williams Thus, jury authorized the robbery by with intentionally knowing- convict the two theories when ly threatening placing another in fear only alleged one was in the indictment. bodily of imminent death. injury and charged In Robinson court to convict if it found alleged (Tex.Cr.App.1977), indictment that Williams threatened or caused robbery that had committed injury just defendant as the case Code, V.T.C.A., under Penal 29.- did. Court recognized theory Section This that a 02(a)(2) rob- charged and further not in the indictment was sub- vision, that it was impaired

mitted to erroneous fied the mace her respect. in that The Court held: “In the eyes puffed up her and that she could see presented circumstances facts of this momentarily after eyes mace hit her we hold the giving case erroneous they completely closed and she lost her charge was not reversible error. Article sight temporarily. She stated that they *3 36.19, V.A.C.C.P.” lot, smarted an awful people that some came eyes and flushed her out Article with a ap- should be in the case water hose. In the plied because same meantime she was hol- principle provides, in cases. applies lering, both It “robbery, robbery,” and the two men in part, that where nearby caught the appellant brought any requirement

“. . Articles him back to the service station. 36.14, 36.15, 36.16, 36.17 and 36.18 has Raymond Foster, L. a seventeen-year-old judgment disregarded, been shall not senior of High working Kashmere School as appearing be reversed unless the error porter a at the Tides II Motor Inn on South injure from the record was calculated to Houston, Main in Stephanie heard Wolff rights ap- or unless it calling he, for help along another, with pears from record defendant started chasing appellant. They caught impartial has not had a fair and trial. him, shirt, they up and as raised his bandage that he had had on his head had appellant The indictment that They gun fallen out. a person. found on his knowingly bodily injury committed during The mace was wrapped up bandage in the the course of a robbery. sub- that fell out when his shirt was raised. He jury if mitted authorized conviction appellant caught. identified as the one he that appellant intentionally, found An appellant officer who came and took knowingly recklessly or caused injury into custody testified that he took the intentionally knowingly or or or threatened items, mace, bandage gun and the placed said owner in fear of imminent bodi- replica which turned out to be a aof .357 ly injury or death. Magnum gun toy and that it was not a All the evidence is direct that he caused moving had parts type and looked like that bodily injury intentionally knowingly. of gun. There is no evidence that he her threatened bodily injury just with or death. He caused The jury appellant guilty found and the bodily injury. judge punishment assessed at years. fifteen punishment court had before it at the Let us look to the record to see if this was hearing probation a record of that he had such an error that was calculated to granted appellant and the record shows prevented appellant of the or him that he had been for convicted other of- having impartial from a fair and trial. places fenses and had a list of other that he day question, appellant On the in stood apparently Appellant intended to rob. tes- by the Conoco Station at the 6600 Service tified that he had been for a convicted block of in Houston near a South Main felony Virginia had been convict- forty taxicab stand for about and hour and Jersey ed in New separate felony for a operator minutes. He told the of the sta- placed probation. 1947 and had been He tion, he Stephanie that had been possession had in his a notebook which list- long. bandage there that He had a around stations, group ed a of service and he ex- working and as she was he walked his head plained, things “Those that are written said, here,” and behind her and “Look up there I trying my was to make mind grabbed He sprayed eyes. mace in her then get enough money pay where to the rent. money the cash drawer and she knocked the my I made those choices.” He stated out of his hand. He headed toward the followed, going pick that he As she the mace one of these Tides Hotel. places her and she fell down. She testi- to rob. blinded record, With this that cannot said The hundreds cases fun- reversed for a judge punishment assessed that was during years by damental error the last two too severe. a apparently of the Court would has change mean there been a in this Could the have been misled when Court or that the trial are courts less able they con- the court instructed should they cases ever try than have been in the they vict found history of past, objections Texas. recklessly or “intentionally, knowingly owner, bodily injury required have been ruling cause said or inten- tionally, place threaten or said court obtained before cases been re- owner fear of imminent Heretofore, versed. the trial judge has death”? put been on notice that counsel is contend- ing that there been some error. When Judge Dally wrote the Williams case *4 done, judge this is a trial a has chance to highly the Court and stated that it was correct the error whether be it to unlikely beneficial was misled because a defendant or whether it be some complainant there was no evidence that the error (the form. any bodily injury in that case received

theory indictment). not alleged the We Ordinarily, errors in a to a change stage. should not the at rules this a cause defendant less than harm errors in During past years, the two a of majority admitting that, evidence. This Court holds this Court has become quite benevolent. if a defendant fails to object in the trial being by With the trend established the alleged court an illegally taken confes rule, error” be “fundamental there should sion in violation of the Fifth Amendment no need for defense counsel because a ma- the of States, Constitution the United the will jority search the record to see it if is Taylor State, error waived. v. 489 case, the would tried with the benefit (Tex.Cr.App.1973); S.W.2d 890 Crawford v. hindsight, of its the trial court de- State, 480 S.W.2d 724 (Tex.Cr.App.1972). cursory fense counsel tried it. A inspection parte Bagley, See Ex (Tex. 509 332 S.W.2d shows that there has been more fundamen- Cr.App.1974), State, v. Moore 480 according tal error to a this S.W.2d 728 (Tex.Cr.App.1972). also See during Court last years the three than dur- State, v. (Tex.Cr. Gibson 516 S.W.2d 406 ing the rest of the time there has been a App.1974). Texas, including time that it was a a object If defendant fails to to evidence Republic. illegal obtained as a result of an search in During history our Courts violation of the Fourth Amendment have been many known names. Now we States, Constitution United this have a “fundamental error” court. holds Court that such error is waived. Her holdings majority, From of the a case State, (Tex.Cr. nandez v. 538 127 S.W.2d will be reversed if there is some error even State, Milligan App.1976); v. 465 S.W.2d though such an error is de- beneficial to a 157 State, fendant. See Brewer v. 572 S.W.2d Other violations of constitutional rights (1978), opinion 940 and the dissenting bemay objection waived unless there is an denial of leave to file the State’s motion court, in the trial such being as one tried rehearing). decision Ar- contrary This is jail Williams, clothes. Estelle v. 425 U.S. provides ticle which 501, 96 (1976), S.Ct. 48 126 L.Ed.2d a case should not be for an reversed error State, (Tex. and Williams v. 477 S.W.2d 24 ap- “error unless such State, Cr.App.1972). also See Boulware v. pearing from the record was calculated to defendant, 542 677 (Tex.Cr.App.1976), and Men injure rights unless State, doza v. (Tex.Cr.App. de- 552 S.W.2d 444 appearing] from record 1977), impartial fendant has not had a fair and where this Court wrote: “This Court added). (Emphasis consistently trial.” held that in order to com plain federally guaranteed of denial of a such circumstances, and should not con- rights, constitutional there must an ob sider such grounds on appeal when the jection in the trial court. . . .” If all trial court’s attention was not called to the above and others which can be such matters before the charge was read ” defendant, violated, harmful to a can be jury. to the . . . objection, why waived absent an cannot an State, In Wright v. 73 Tex.Cr.R. regarding charges error in form be waived? (1914), S.W. the Court held that increasing by Fundamental error is a ma required statute exception an jority by geometric progres of this Court at the time of the trial and wrote: Reynolds sion. See “. . itSo is clear that the intent (Tex.Cr.App.1976), which was reversed and purpose Legislature of the is that we prosecution ordered dismissed on “fun should not reverse a case because of error damental error.” The indictment in the charge, be, if error there unless it that Reynolds property stole the was excepted trial, to at the time of the witness, complaining allege but did not and not then unless the error appearing it was taken without his effective consent. from the record was calculated to Hundreds of cases based upon Reynolds the rights or unless it prosecutions have been reversed and the appears from the record that the defend- parte ordered dismissed. See also Ex Can ant has not had a fair impartial trial. *5 non, 546 ” added). (Emphasis ,528 (Tex.Cr. Bouie v. See State Other cases have followed this construc- App.1975). tion of the statute until a without We should follow the statutes: Articles overruling those cases has found many er- 36.19, V.A.C.C.P., require 36.14 that an rors in to be fundamental objection to the court’s be made at without considering effect, its harmful the time trial before the will matter any. When a dear friend or a well estab- be reviewed. Article re- lished rule for so many years departed, quires that there must be an error calculat- proper respect paid. should be A re- ed to of a defendant be- searcher looking to the citator to see if a fore there is a reversal. The majority holds case has been followed or overruled should exactly opposite provisions be able to reading determine it without judges these articles. Good from 1913 until every case written by this Court on a sub- now have followed Article 36.19 and its ject prior to publication. their If the cases predecessors. from 1913 present were well rea- 369, In Echols v. Tex.Cr.R. then, soned there should be at least some (1914), S.W. 786 the construction of the attempted given reasons following for not statute is correct. The wrote: Court them. This writer hates to see the depar- just “It is such cases as this that caused ture of departed proper without serv- Legislature 723, to amend old article ices. now of the Code of Criminal Proce- It is hard to understand how all of those dure, provide the errors in the judges able in the past could have miscon- reversal, should not be cause for strued Article years. 36.19 for all those t,o objected presented unless to when This Court as now constituted should re- inspection. counsel for their Errors of alize practically that there are no cases that complained the character now of in the clean, antiseptically are and that error charge were under the old law raised in should be harmful before a case is reversed. trial, court, new motion for a and this matters, impelled because of such felt case it should be assumed Legislature reverse the jurors case. desired appellant guilty who found evil, (just to correct what it considered an and were not stupid like the earlier judges said this court stupid). jurors should not reverse under were not heard the and knew there was no evi- evidence threat, only evidence that of a

dence injured by complaining witness They could not sprayed eyes. in her

mace charge, court’s

have been misled been shown. The reversible error has

No granted rehearing should

motion cause should be affirmed. DAVIS, J., joins this dissent.

W. C. KIRVIN, Appellant,

Willie Lee Texas, Appellee.

The STATE of

No. 56759.

Court of Criminal Appeals

Panel 3.No.

Dec.