*2 DOUGLAS, Before PHILLIPS and W. C. 37.09(1) is required. Article Vernon’s See DAVIS, JJ. Ann.C.C.P. aggravated Since is a com- robbery theft
OPINION
specific
aggravat-
and
mitted under certain
circumstances,
rob-
ing
proof
aggravated
of
W. DAVIS, Judge.
C.
circumstances,
should,
in-
bery
under most
Appeal follows a
for aggrava-
conviction
Code,
Penal
proof
clude
of theft. V.T.C.A.
ted robbery
punishment
where
was en-
Indeed,
lacking,
proof
31.03.
if such
is
Sec.
imprisonment.
hanced to life
V.T.C.A. Pe-
to-
our attention should be directed
then
Code,
nal
12.42(d).
and
Secs. 31.03
Four
of the evidence.
sufficiency
ward
grounds
error
presented.
are
We affirm.
case,
produced
In
the State
error,
his first
appellant,
to
armed
evidence
the effect that
in
claims error
the refusal
the trial
court
company
with
in the
of another
pistol
a
and
grant
to
specially requested
charge on
subject,
into
male
burst
Appel-
lesser included offense of theft.
intrusion, com-
At the time of this
home.
lant argues
relied
the evidence
on
plainant and
had asked to use
a female who
aggravated
State to establish the
rob-
bery
theft;
phone
therefore,
present. Appellant threat-
also established a
a
were
charge
gun,
then
on theft
a lesser
ened
as
included
offense
money.
was required.
Campbell
looking
571 “frisked”
for
161 (Tex.Cr.App.1978).
complainant’s person,
no
Finding
money on
gun
complainant,
escorted
In Campbell, supra, we held that
point,
a
there removed
to
bedroom and
theft was a
ag
lesser included offense of
clothing
a credit
hundred dollars from
gravated
However,
robbery.
complainant.
belonging
card holder
require
must
be
read to
a
on
as
in
closet
Complainant was then locked
a
theft
every
aggravated
prosecution for
companion
fled.
robbery.
necessity
for such a
must
a case-by-case
be determined on
basis.
cross
sufficient
evidence is
Such
test,
Campbell,
set forth in
to be
its
proving
Campbell.
the first hurdle of
used to determine whether a
on
es
aggravated robbery, the
case on
required
theft
prosecution
aggra
is
in a
for
end
our inquiry
Should
tablished
theft.
robbery
vated
is:
here,
on theft as a lesser
“
robbery
.
.
. not whether
would
primary
aggravated
of-
offense
must, however,
capable
proof
theory
fense is
some
examine
required.
been
We
that would not show
but whether
second
light
the record further
presented
case as
required by Campbell.
State’s
step
charged
offense
also included theft.”
requires an examination
step
The second
interpretation
application
aof
in the course
produced
of all evidence
Campbell test is now
us.
before
robbery.
prosecution
aggravated
for
evidence which
here
not on the
focus
is
separate steps
Under
rather,
elements, but
proved
statutory
necessary
are
a charge
to determine if
which shows
for evidence
required
prosecution
we must search
aggra
is
in a
First,
guilty
he is
robbery.
guilty,
is
vated
the lesser included
lesser
only.
offense
given,
options
our task is
then the
has two
equally
examination
which are
distasteful. The first
of the entire record.1
guilty
situation
option is to vote
“step
Under our
two” examination of the
where
the defendant commit-
they believe
record, we are searching
evidence
option
ted a
The other
is to vote
theft.
which would show
that if
is guilty
robbery, an offense
*3
all,
at
he is guilty only of the lesser included
they believe the defendant did not commit.
55,142,
(No.
offense. Thomas v. State
appellant’s
case does not
record
January
1979);
delivered
v.
Williams
step requirement
second
satisfy the
State,
(Tex.Cr.App.1979);
We approval holding Espinosa v. admits that our State, supra, is (Tex.Cr.App.1971) where the 463 8 defendant raised con- position, us to recon- tention that adverse but asks she entitled to an instruc- position. sider our We decline this invita- tion on theft as lesser included offense four ground tion and overrule of error aggravated robbery: Espinosa, supra. based on “Our law ‘a provides on the required lesser is not judgment is [included affirmed. offense] unless there is testimony raising such is PHILLIPS, Judge, dissenting. sue that appellant, guilty, guilty only State, lesser v. offense.’ Dovalina I er Appellant’s first dissent. (Tex.Cr.App.1978); S.W.2d 378 reversibly alleges ror the trial court McBrayer (Tex. 504 S.W.2d specially re failing grant erred in Cr.App.1974). quested The State’s evidence included of the lesser *4 Although showed all of the I from elements of fense of theft. dissented this v. robbery. Appellant Court’s En Banc decisionin did not take the State, 161, I 571 feel that the Panels S.W.2d testify stand. Robert Williams did for the decisions of this Court should adhere to appellant; testimony appel was that Therefore, of the En it clear Banc Court. anyone lant did not stab and had left the that can be a lesser included offense fight began. store when a Robert Wil was with aggravated robbery of “theft testimony appellant liams’ indicates that facts relied question proven out within the Thus, was not guilty of offense. the aggrava the its of byon to make case State appellant State’s evidence indicated that Id. further stated robbery.” ted at As as charged; the defense evi the Campbell, “the issue is whether in dence indicated she was not guilty of the of presented as State’s case Appellant offense. was not entitled ato proof of theft.” charged fense lesser included offense.” case, this I find the Turning to the facts of We hold that was not entitled following. to a on theft. error Ground of one First, prior reading of the the is overruled. the trial jury, appellant’s court to the error, ground appel his second specially requested counsel submitted two complains lant in by of error trial court apply which would law instructions admitting hearsay testimony police a from permit of the case and theft to the facts testimony officer claiming that such as a lesser included jury to consider theft impermissible bolstering guilt of a and deliberating witness. on the offense in being objection only difference appellant. There no at trial directed The innocence of in- impermissible specially requested two bolstering, ground toward of between the a that the latter one included nothing structions is presents error for review. al- money current range of value (Tex.Cr. Fazzino 818 Both legedly complainant. stolen from the App.1976). were refus- specially requested instructions Likewise, three, ground appel- in of error Further, appellant’s court. ed the trial complains improper bolstering, lant re- objected to the trial counsel sulting concerned with the lesser to include for the failure court photographic lineup. no being There trial This ob- charge of theft. included offense objection, ground presents of error three jection is certifi- overruled and there Fazzino, nothing supra. for review. objection presentment cation of the four, of error charge and reading of the before the complains paragraph enhancement ruling exception such trial court’s has sufficiently the indictment does not al presiding judge. error lege ground of prior successfully preserved that the convictions were final this 36.15, V.A.C.C.P. Article purposes Appellant of enhancement. for review. See Second, the presented bly alcoholic, three wit- positive but that he was in nesses its case in complainant chief: the about the and activities appellant’s presence and two investigating police officers. on the night 7. On recross-exami- complainant The approxi- nation the denied that the complainant ap- mately 7, p. 9:15 m. on he re- pellant compa- was ever in his home sponded to his doorbell and admitted a ny of one Jack Locklin. young seeking woman the use of his tele- in his appellant testified own behalf phone on problems account of with her and prior felony admitted convictions for automobile. After apparently being unsuc- (2), passing a burglary forged cessful in reaching she anyone, requested a instrument. testified that he He further glass of water. complainant rose from since he complainant knew the chair began glass obtain the eighth grade Jack Locklin through and that water when two house, men burst into his he had been at the home nu- carrying pistol pointed at the com- merous times. that the com- He testified plainant’s stating, move, head and “Don’t plainant bought him and Locklin beer S_ B_” you of a identi- relationship and lent them his auto. This fied the as speaking gunman. prison continued until the entered stated that the appellant on his first He testified felony conviction. struck him on the right temple, breaking his engaged he had homosexual rela- glasses proceeded upon to force him tionships (oral sodomy) frisked, floor. After being he was asked *5 ant as companion did his Locklin. money where his was. He stated it was in 7, 1975, respect With to the events the bedroom and he then was forced into appellant the that he took a wom- testified the bedroom with gun the at his head. The Nancy the to the name of Nabors men then took more than a hundred dollars complainant’s she had him home after asked pants pocket from his his credit card if he knew any way she could make holder before placing complainant the in a money. that he Appellant testified knew hallway furnace The complainant closet. prostitute prior she was a familiar- his said, testified that the “[W]e S_ B_.” ity with They her. arrived the ought to kill the of a The com- doorbell, home, rang ant’s and were his plainant testified money that his and credit shortly thereafter invited to enter. After cards were taken his without effective con- sitting complainant’s a short while the sent. After the departed, intruders he noti- room, living where the the woman asked police fied the gave the investigating complainant’s was bathroom and the com- a description officers of the three individu- to the plainant escorted her bathroom in als. The day next he identified the woman bedroom, the bathroom in the passing by was who involved in a photograph array. hallway. Appellant that he sat in testified Less than one month after the offense the watching the living ap- room television for complainant identified the defendant in an- proximately 20 to minutes at which time other photograph array. On cross-examina- tion, the bedroom. The he was called back to the complainant testified that may he woman the the victim would told possibly seen the defendant once be- pay her what he owed her for her fore when he was years robbed or three then Appellant services. asked the com- previously. His identification of appel- the pay, to which he plainant lant as the whether he would robber time at that was at best When he asked the response. uncertain. The received no complainant further admit- was, complainant money the com- having prior felony ted five where his DWI convic- pointed tions and billfold on a table at plainant admitted that he never to his identified any individual, other or which time the took out. person by way $50.00 photograph array, de- Thereupon appellant as the other male intrud- and the woman 7,1975. er on On redirect examination testified that the parted. complainant the that he possi- only people present complainant’s admitted to a re- he, woman, is entitled whether a defendant evening
home that where included of- complainant, quested and the that he did not harm on a lesser instruction step of complainant, addressing that he did not threaten the second fense. harm, complainant majority requires he now and that analysis, their gun. not have firearm or He fur- at least some guaranteed did that the be thought they require ther that he that the com- in that reward for its efforts be- plainant’s approval silence was a tacit the lesser offense judicial confession taking money. cross-examination required. On on it is an instruction fore testified that the was the “taking” In this case the glasses when he en- wearing any was not subjective- Appellant element. undisputed only for glasses tered and that he used his “effective complainant’s thought he had ly reading. denied same. while consent” Upon being by the recalled disputed. likewise weapon of a The use met Jack complainant testified that he had meaning, is to have jury system If the picked he him Locklin in 1966or 1967when range of the entire given should be He up walking along highway. while charges by the supported offenses potential given Jack Locklin beer stated he had Otherwise, majori- under evidence. with him. He but had no sexual relations supra, ty’s interpretation with Jack having admitted sexual relations testimo- none of the jury must believe all or brother, Roger. Locklin’s He testified Here it witnesses. ny of the State’s he Jack Locklin’s previously robbed have disbe- jury would that the reasonable brother, Roger, report did his name but testimony about complainant’s lieved police fear of shame and adverse to the weapon and the publicity He testified that to his business. he acted subjective belief about this Roger approxi- him for Locklin blackmailed consent.” “effective with threats of mately five or six months words, is sufficient the evidence In other payments of mon- destroying his business robbery sustain a conviction He testified that ey forthcoming. were not to his entitled Appellant theft! or *6 provided he Jack Locklin beer order I dissent. instruction. requested Roger with Locklin. to have sexual relations he was bi- admitted that sexual, no sexual relations but that he had anyone 1975. Locklin testified that he was way of mar- brother-in-law appellant’s wife. He
riage to the sister of complain- in the testified that he was often HALIBURTON, Appellant, Eugene Ricky complainant was home and that the ant’s Appel- appellant by him. introduced to the acquainted as lant Jack Locklin were Texas, Appellee. The STATE of grade in the same school. fellow students 55038, 55039. Nos. State, Jack Locklin recalled When Texas, Appeals beer, of Criminal played poker, Court that he drank testified Panel No. complain- sexual relations and had home. He further ant while 28, 1979. March whether the that he did not know ant sexual relations with the had brother, Roger
or his Locklin. admittedly reinterprets majority cre- Campbell, supra,
decision reached question to the approach
ate a two-tiered