*1 parte Ruben SANTELLANA. Court of Criminal
En Banc. Oct. Johnson, Land, appel- for Sugar
Paul G. lant. Holmes, Jr., George Atty.,
John B. Dist. Secrest, Jr., Atty., Dist. Hous- Asst. McCall ton, Austin, Huttash, Atty., Robert for the State.
OPINION
ONION, Presiding Judge. post-conviction application This is an for corpus relief under V.A.C.C.P. upon alleges
Petitioner he was convicted of which for bery fundamentally defective fail- element of a necessary ure to cf. Ex culpable mental state. See and Winton, (Tex.Cr.App.1977). And a defective in way may challenged by dictment application for writ of ha- post-conviction Lewis, corpus. Ex beas Omitting parts, the formal 9, 1974, January that on or about County, petitioner Harris “. . . then while and there money theft of course of Oyervides, hereafter owned Susie complainant, with intent styled the control of the to obtain and maintain place the com- property threaten and in fear of imminent plainant death, by using . .. weapon, pistol namely, a (Robbery), part: *2 332 if, “(5b)
“(a) threatens in fear person places A commits an offense or committing the course of theft defined bodily injury of imminent or death Chapter 31 of this code and with intent and either prop- to obtain or maintain of the “(6a) bodily injury to an- causes serious erty, he: other or “(1) intentionally, knowingly or reck- “(6b) deadly weapon.” or a uses exhibits another; lessly bodily injury causes to (citations omitted). 261 577 S.W.2d at found fundamental- indictment therein was “(2) intentionally knowingly elements ly defective in its omission of places threatens or another in fear of (4b)-“knowingly intentionally,” and bodily . . . injury imminent or death (5b)-“threatens places another in fear of (Emphasis supplied.) injury or death.” bodily (Aggrava- alleged flaw in the instant indict- Robbery), provides ted in part: removed that in Ex step ment is one from “(a) person A commits an offense if he cases, County. In both the defendant robbery commits as defined in Section robbery un- aggravated code, 29.02 of this and he: 29.02(a)(2)and der “(1) bodily injury causes serious case, 29.03(a)(2). a in the instant another; or alleged, “threatening and in fear” is “(2) uses or deadly weapon exhibits a there is no but intentionally knowingly. necessary pre-condition It is a ato defect was contends that the conviction for that the cured robbery. maintain control had “intent to obtain and County, 577 260 S.W.2d is invit- property.” over the Our attention attempted The instant indictment State, 805 ed Teniente v. robbery under 29.- it was held that (Tex.Cr.App.1976),in which 02(a)(2), alleged and ele aggravating to al- burglary the failure of a using ment of lege knowing or intentional en- expressly a Y.T.C.A., weapon. 29.- that the try was cured 03(a)(2). complained The defect of is the the intent was “with failure of the indictment to complainant in death fear of imminent Teniente was in turn cited Clark knowingly. was done State, (Tex.Cr.App.1977),an S.W.2d case, authority for indecency with a child parte County, supra, In Ex we held that sufficiency upholding the adequately alleged an indictment which charged that the therein. The indictment robbery fatally aggravating element of there unlaw- appellant, “did then and defective for failure to two of the desire to arouse the sexual fully with intent underlying robbery. elements of It was Defendant, contact have sexual stated that L_ M- touching genitals bery are: M_, age under the of seventeen child “(1) person there- spouse.” not his The court years and “(2) in the course of theft in, allega- held that the relying “(3) with the intent to obtain or maintain appellant’s tion intent property either control of sexual desire was sufficient “(4a) knowingly or reck- intentionally, V.T.C.A, Code, 6.02. requirement lessly “gist” of the analogy drawn was to the “(5a) causes question in the two cases. offense in to be “(4b) gist was held Teniente knowingly entire statute in to be effective. gist and the con- (Tex. held to be the act of sexual child was Morter v. tact in 5429b-2, Clark. Since 3.01(2), Cr.App.1977); clearly applied constitu- each case act accept argument To V.A.C.S. offense, ting gist the indictments long reject would this sound *3 were held sufficient. so. law. We decline to do standing body of exists, however, in A different situation Clark, Teniente, supra, and The results of might the it be instant case. While The supra, with this view. are consistent single apparent what act constitutes the Teniente, V.T.C.A., in in statute child, of “gist” burglary or Code, 30.02(a)(1), a specific contains Penal § “gist” the of is consid- element, made the be that simple erably to determine. Two crimi- less felony “with commit a intent to implicit aggra- nal acts are in the offense of Code, V.T.C.A., However, Penal unlike theft, robbery: attempted, vated whether 29.02(a)(2), general is no additional there § assault, completed, and an progress in The in the statute. intent element stated in allegedly which the instant case was done Teniente, the in which tracked V.T.C.A., deadly weapon. threat with verbatim, the all of statute thus Code, 29.02(a)(2),29.03(a)(2); Penal cf. §§ The attack express burglary.1 V.T.C.A., Code, 31.03, 22.01. The V.T.C.A., Penal the was that Legislature defining in express- the offense 6.02, Code, proof required allegation and placed two into ly requisite mental states intentional, knowing an or reckless language the of of the statute: the offender must act with intent to maintain obtain and elements of the in addition the threatening property, control over and his re- properly This contention was statute. the be victim in fear must inten- jected already for the reasons stated. or knowing. tional Clark, slightly situa- supra, In different light, in it appears Viewed this face, its presented. tion was On the phrase “intent to obtain main any 21.11(a)(1), fails state property” tain deals the However, culpable state. requisite mental robber’s mind the prop state of is in the statute the term “sexual contact” erty question. “intentionally requiring specific as in turn defined knowingly” is his element directed to state de- intent “to arouse or the sexual mind the victim of V.T.C.A., any person.” of sire fear, component assaultive Thus, 21.01(2). in Clark aggravated robbery. offense of mental state expressly culpable stated language “in contends essence that statute, implicit applicable in the that was tentionally knowingly” in the statute is stated ele- alleging well as all of the superfluous, and that offense can be 21.- ments in adequately alleged without it. Teniente, 11(a)(1).2 ground As in we find that the of the statute allegation, out- was additional error that an explained above is more consistent intentional, statute, of penal side the an principles statutory interpretation. sound was re- knowing, or reckless mental state guiding every standard is that word 6.02. quired by presumed have been a statute must be reasoning re- And as in this purpose, Legislature used for a jected. presumed must be have intended felony required Again, degree of detail
1. The “intent 21.05, Victory theft,” express V.A.C.C.P. Cf. an ele- addition definition, 1976), (Tex.Cr.App. statutory where be ment of the would also held required contact” was mere of “sexual to be stated in the indictment under requirements authority said V.A. insufficient of Articles 21.05 and Article 21.05. C.C.P. The defect in the indictment in the the victim with serious that, instant case is unlike the indictments appeal. death. There was no There should in Teniente and it omits an element granting be an end to relief after one had clearly required by applicable statute to many years been tried before. He had suf- plead proven. We hold that ficient notice of the offense. indictment is defective. legislation pre- There should be some requested granted, pros- is vent relief in cases such as this where the ecution under the instant indictment or- is properly offense is identified in the indict- dered dismissed. Cannon, ment. in Ex See dissent test
DOUGLAS,Judge, dissenting. was, be, and should used was set out in Merriell, majority holds that the in Ex Tex.Cr.R. (1956). indictment that Santellana S.W.2d 400 It is as follows: *4 “.. place complain- threaten and “There a valid law under which a ant in fear of complaint sufficient and information death, by using could have been drawn for the act of weapon, namely, pistol ...” obtaining property injure check, by giving of and defraud does not “intentionally” that he information, draft or order out in set “knowingly” made such threat. How can any irregular or insufficient averment of one threaten another with death without facts would not entitle to relief intending to make such a threat? corpus.” 21.17,V.A.C.C.P., sub- stance in charging sought an offense an in- should be denied. dictment does not have to the exact crime, setting
words in out the but words of meaning may similar be used. part All one has to do is read that indictment which complainant by threatened death of the us- ing pistol. It shows that the threat was recklessly negligently
intended. Can one (and Perales, In- pistol? threaten to kill another with a Victor OZUNA Olivia 0. dividually Next Friend of Her and as “Threat” is defined in Black’s Law Dic- Son, Perales), Appellants, Minor Victor Ed., Rev., tionary, 4th as follows: “A or determi- declaration intention loss, punishment, pain nation to inflict DYER FRUIT BOX MANUFACTURING another, injure or to COMPANY, Appellee. (Cita-
commission of unlawful act. some omitted)” tions Court Civil According to the the ma- Tyler. jority, prosecutor has to in effect that a defendant intended to Sept. injure another. Prom the set out definition above, it is seen that threaten in- Why prosecutor
cludes intent. does a have that one threatened when both words include intent?
Petitioner was tried and convicted attorney 1974. He and his knew that he robbery by threatening