*1 ity at the time of the was not of not man
constitutional dimension and thus datory on the states. itself held Nilsson proof by a insanity
that the burden of of preponderance evidence was placed appellant. Bonner v. See also 901 (Tex.Cr.App.1975), Boykin v.
Cr.App.1974). Appellant’s ground sixth of
error overruled. judgment is The affirmed. KING, Appellant, (Court ap- Hocker, of Wesley STATE M. Houston McLean, (Court Houston pointed), Ken J. No. 62781. appointed), for Atty., Calvin A. En Banc. Tobias, Hartmann, Andy M. Houston, Robert 6, 1980. Austin, for the State. Rehearing Denied March OPINION CLINTON, Judge. for the of- appeal follows conviction pursuant to V.T.
fense of jury 19.03(a)(2).1 The § C.A. finding to each of an affirmative returned under Article special issues submitted V.A.C.C.P., pun- 37.071(b), at death. accordingly assessed ishment 37.071(e),supra. sufficiency the evidence challenged. burglary, kidnapping, tempting pertinent Section 19.03 arson; or commits if he [know- an offense throughout emphasis supplied [All ingly causes the death opinion indi- otherwise writer of this unless 19.02(a)(1) under individual] and; cated.] code (2) person intentionally commits at- in the course
426
Appellant’s complaint initial In v. to the trial Granviel quash court’s failure to the indictment re- that Cr.App.1976), this Court determined which, against omitting turned for- the trial court did not err in to portions, mal alleged: quash charging capital mur attempted the commission or [Appellant] . . .did then and there rape, aggravated commissionof for its fail unlawfully while in the course of commit- allege ure to the name of the intended ting kidnap- However, aggravated rape. ping, aggravated rape inten- victim of the erroneous, not tionally Clay- ruling cause the death of Michael the trial court’s was Underwood, ton styled quash timely hereafter the motion to was not because Complainant, by hitting, striking and filed. v. 580 S.W.2d Goss beating Complainant with a firearm. (Tex.Cr.App.1979), it was held that an in allege should dictment for [appellant]
And
.
.
.
person whom the threat of imminent
to
did then and there
directed,
was
and that
infliction of death3
knowingly
cause the death Michael
timely
to
grant
failure to
filed motion
styled
hereafter
insufficiency
aimed at such
constitut
Complainant, by hitting, striking and
ed error.4
Complainant
with a firearm.
conduct,
By
It is clear that when criminal
timely
written motion to
indictment,
feature of an
appellant apprised
constituting
the trial
an
person
at a
other
allege
may
court that “the indictment fails to
be directed
complainant
following:
victim the crime al-
than the ultimate
person is a
ping, aggravated rape
leged,
specification
of that
fact which the accused is entitled should
allege
does not have to
all the
to
written motion
by timely
essential
he
it
filed
robbery, kidnapping,
request
State, supra;
v.
rape,
quash.
but it
to
Cf. Granviel
party
does have to
State, supra;
also
to whom the harm was
it
Goss v.
see
intended or
fails
(Tex.Cr.App.1975).
the defendant notice of how to
against
ambigu-
defend .'
.
.
an
such
we have
argues
that because
State
ous
court summarily
assertion.” The trial
unnecessary
held that
it is
overruled appellant’s
quash.
aggravating offense com-
elements of the
complaint, having
been
as
the course of
mitted or
serted,
occurs,
question
adequacy
calls into
it follows
capital
of which the
requisite
unnecessary
the constitutional
of notice to the
name the intended
that it is
thereof,
constituting
charge
citing
accused
the facts
victim
Hammett
him;2
against
consequently,
(Tex.Cr.App.1979)
the issue
While this
taken
be well
DOUGLAS, Judge, dissenting.
alleged only kidnapping
had the State
this case because
majority
reverses
robbery
as the
offenses com-
failed to
the com-
which the mur-
mitted
underlying
crimes of
plainant in the
case;
occurred,
such was not the
ping, aggravated rape and
21.03, V.A.C.C.P.,directs:
long held that an indict-
This Court has
Everything should be stated in an indict-
need not
proved.
ment which is
to be
ment
Brei,
Kelly
and while in the course of
5. See Brem v.
App.1978);
attempting
committing
crime. Burns v. YOUNG, Appellant, Jack (Tex.Cr.App.1972); Livingston v. In Ham The STATE of (Tex.Cr.App. mett v. 1979), though we followed that rule even No. there was a motion to the indictment.
The majority’s opinion today does not fol long-standing
low this rule. Panel No. 1. Capital only crime particularized where we have held such unnecessary. *4 charged burglary defendant was with with the intent injury a child.
The failure to the child’s name did fatally not render the indictment defective. In Earl v. App.1974), charged the defendant was with
aggravated robbery ap and contended on
peal the indictment should have al
leged the As constituent elements theft. statute, V.T.C.A.,
with the Code, 19.03, the infliction Penal Section bodily injury threat of serious must occur “in the course of theft.” V.T. C.A., 29.02. Because course of” language “in the includes commit, occurring attempt in an commission, during the or in immediate commission, flight attempt after the the actual commission of the theft is not a
prerequisite to the commission of the rob
bery. proven All that need is that be
theft occurred the course of a rob principle to that bery. have adhered assault cases as well. See Gonzales and cases cited therein.
We should continue to follow rule reasoning. which is based on sound Phillips, Angleton, Michael M. should be affirmed.
lant. J., DAVIS, joins W. in this dissent. C. Atty., Michael C. Wilson,
Kuhn and L. E. Houston, Robert
Austin, for the State. J., ONION, and DOUGLAS
Before P. DAVIS, JJ. W. C.