*1 303 (1969); 1726, 250, 23 L.Ed.2d 89 S.Ct. 18, California, 87 S.Ct. v.
Chapman (1967). L.Ed.2d 705 is af- judgment of the trial court The firmed. DOUGLAS, J., concurs in the result for Houston, appellant. for Gray, Will dissenting opinion
reasons set out in Vollers, Austin, Atty., Jim D. for State’s State, for supra, v. on motion Escamilla the State. rehearing.
OPINION ROBERTS, Judge. appeal
This is an from a conviction for enhanced, robbery. As punishment was assessed at 30 years’ Depart- confinement the Texas ment of Corrections. DAVIS, Wayne Appellant,
Lonnie The record reflects that companions gunpoint two robbed at proprietor pool parlor of a hall and domino STATE in Houston. brief, By supplemental appellant urges error a conviction “. under conceivable under V.T.C.A. 29.02 and Section it to the Appellant argues
in the indictment.” our recent decision in Robinson v. (delivered 13,1977), July is con- trolling. agree We and reverse.
Omitting parts, the formal in the case at bar . did then and there while in the theft of one watch owned Paul hereaf- Complainant, and with in- styled ter control of the tent to obtain and maintain place Complainant threaten and of imminent fear by using namely, The court “Now if find from the evidence on or beyond a reasonable doubt 1975 in day January, about the 12th Texas, defendant, did, _County, without the effective consent *2 owner, and gravated robbery Schiro the take exercise con- they found, if among personal trol corporeal over the things, other he intentionally, knowingly to-wit, of Paul one watch and or recklessly bodily injury Schiro caused to the found, of Paul if possession from the Schiro and further beyond doubt, a with there reasonable the deprive intent then and to bodily injury caused serious to the com- money, Paul Schiro of said and that said plainant. alleged was defendant, doing, simply This not in in so and with intent to Further, charge the indictment. the acquire and control of maintain said would have authorized a conviction for money intentionally, watch and knowing- aggravated robbery if the jury found he ly, bodily or recklessly injury caused to intentionally, knowingly recklessly or intentionally said or knowingly owner or injury by using caused bodily and exhibit- said placed threatened or owner in fear ing weapon. deadly This not al- injury imminent or if bodily of and fact, leged In either. autho- you further find from the evidence be- rized a conviction under conceiva- yond doing a reasonable that in so doubt V.T.C.A., Code, ble theory under Penal find, foregoing you the acts if do so the 29.03, and Section 29.02 Section bodily defendant caused serious to injury to the it in Paul Schiro or defendant used or exhibit- the indictment.” to-wit, ed a pistol then you guilty ag- will find the defendant of Accord Dowden v. gravated robbery charged in the as in- (Tex.Cr.App.1976), and the other authorities dictment. Robinson, supra. cited in you “If the find from evidence that the Because rec- of the error we defendant the committed offense of rob- ognize, appellant’s we discuss oth- need not bery, defined, you as herein but have a grounds er of error. reasonable to whether he doubt as caused judgment is reversed and the is cause to serious or as Schiro remanded. to whether he or deadly used exhibited a weapon committing said robbery, then DOUGLAS, Judge, dissenting. you will find the guilty only defendant of The majority reversed this conviction be- robbery, and not of permitted cause the find charge the to you “If have a reasonable doubt as to aggravated robbery of un- guilty whether the is guilty any defendant alleged der a not the indictment. offense, is, aggravated robbery or V.A.C.C.P., 36.19, governing Article errors robbery, acquit then will the defend- provides in the charge, part say by your guilty.” ant and verdict not judgment . . shall re- not be seen, alleged As can be appearing versed unless the error from the V.T.C.A., Code, robbery under Penal Sec- rights record was calculated to 29.02(a)(2), by alleging defendant, appears it or unless from intentionally knowingly threat- and record that the has not had fair defendant ” and ened no impartial and trial. Because death. The in- objection be- was made aggravating then fac- dictment been shown appellant, cause no harm has to exhibiting a “by using deadly weap- tor be judgment should affirmed. V.T.C.A., on, namely, Penal Code, 29.03(a)(2). charge The instant are indictment if, commits an offense Robinson, those in
practically identical to theft as course Robinson, supra. In we held Chapter defined in 31 of this code and with intent obtain or maintain con- “This property, trol of the he: ag- convict the as Capone or reck- ever was.” The robbers then “(1) intentionally, knowingly, made another; bodily injury to lie on the floor in front lessly causes Schiro of a confec- tionary They counter. tied his hands be- or put chair over his hind him head or threat- before left. in fear of immi- places ens or another injury or death. bodily nent testified that was afraid the *3 is a “(b) under this section An offense him, robbers would or kill but that degree.” of the second felony anyone. did not hurt He further testi- gave he the robbers his money fied that guns. because exhibited appellant placed offense if he The record is clear that commits an robbery as life commits defined his dis- code, playing exhibiting and he: gun. 29.02 of this There is no evidence anybody whatsoever sus- “(1) bodily injury to an- causes serious tained bodily injury during the robbery. other; or jury charge While the is not a model of deadly weapon. exhibits a uses or clarity, it any jury could not have misled “(b) offense under this section is a An under the facts of this case. No harm is degree.” of the first felony Moreover, shown. -by failing to substance, alleged, in The indictment object jury charge”, appellant may appellant injected have “. proc- into the trial threatened the very type objec- ess of error which the and death fear of requirement designed to avoid.” pistol while in the using and Kibbe, 145, 157, Henderson v. committing theft. The court’s 1730, 1738, (1977) S.Ct. L.Ed.2d to convict J., (Burger, concurring). aggravated robbery upon finding lant of No reversible error is judg- shown. The allegations in the indictment were that the ment should be affirmed. true, and further authorized a conviction upon finding for the same offense had caused serious while the course of commit- A fair
ting theft. evaluation of this however, requires an evaluation in the con-
text of the entire record. presented
The evidence at trial shows complainant, Paul owned a SHAW, Appellant, Thomas Walter parlor in Houston. On pool hall and domino 12, 1975, appellant and two other January the establishment and robbed men entered The STATE of gunpoint. several customers at the robbers made the customers lie While floor, ordered Schiro on the building. Appel- the front of the come to “casing” told him that he had been pre- during
establishment the three months ceding
Although appellant pistol, had his own caliber revolver behind found Schiro’s .38 waiving counter started it in the air, A1 saying that he was “badder than