Mitchell v. State
543 S.W.2d 637
Tex. Crim. App.
1976
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Willard James MITCHELL, Appellant, v. The STATE of Texas, Appellee.

No. 51140.

Court of Criminal Appeals of Texas.

Dec. 1, 1976.

531 S.W.2d 637

There is no evidence in the record to suggest a contrary view.

“Manifest” is defined in Black‘s Law Dictionary, 4th Ed. (1968):

“Evident to the senses, especially to the sight, obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident, and self-evident.

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We find that the forty-five automatic, even though missing a firing pin and without a clip when found (following the robbery), was manifestly designed and made for the purpose of inflicting death or serious bodily injury and that this fact was evident to the senses and understanding of the victim. We conclude that the evidence was sufficient to prove that appellant used a “deadly weapon.”

Further, in Mosley, it was undisputed that the weapon was not a “firearm.”1 V.T.C.A. Penal Code, Sec. 46.01, provides in pertinent part:

“In this chapter:

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“(3) ‘Firearm’ means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . .”

While it appears that the definition of firearm is designed for Chapter 46, “Weapons,” in Title 10, “Offenses Against Public Health, Safety, and Morals,” we find that the definition furnishes guidance in determining whether the weapon in the instant case is a “firearm.” It should be borne in mind that the clip and firing pin were missing when the gun was recovered by the officer and that there is no testimony that the weapon was in such condition when the robbery occurred. However, assuming, arguendo, that the clip and pin were missing at the time of the robbery, we find the forty-five automatic pistol to be a “firearm.”

Appellant contends that the evidence was insufficient because the victim did not testify that the money was taken without her consent.

We conclude that the testimony of store manager Ortega that appellant pointed a gun toward her, told her to open the cash register, and that she opened same because she was in fear of death or serious bodily injury sufficiently proves that the money was taken without her consent. See

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The judgment is affirmed.

Opinion approved by the Court.

Sam A. Maida, Houston, for appellant.

Carol S. Vance, Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State‘s Atty. and David S. McAngus, Asst. State‘s Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated assault; the punishment is imprisonment for 4 years.

The appellant was charged with the offense of aggravated robbery. The allegations for enhancement of punishment were abandoned and the appellant entered a plea of guilty to the offense of aggravated assault.

We have reviewed this appeal in the interest of justice as required by Article 40.09, Sec. 13, V.A.C.C.P., and reverse the judgment because the evidence does not support a conviction for an aggravated assault that is a lesser included offense of the offense charged.

Article 37.09, V.A.C.C.P. provides:

“An offense is a lesser included offense if:

“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;”

The indictment in the instant case drawn under the provisions of V.T.C.A. Penal Code, Secs. 29.02(a)(2), and 29.03(a)(2), in pertinent part, alleges that the appellant:

“. . . did then and there unlawfully while in the course of committing theft of money, owned by Serafin Calo, hereafter styled the Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a chain . . . .”

The only aggravated assault that is a lesser included offense to the offense charged in the indictment is aggravated assault committed by intentionally and knowingly threatening Serafin Calo with imminent bodily injury by using a deadly weapon. See V.T.C.A. Penal Code, Secs. 22.01(a)(2), and 22.02(a)(3).

The only evidence offered to prove the included offense was the stipulation of the appellant that “I did intentionally and knowingly cause serious bodily injury to Serafin Calo.” This stipulation is evidence of an aggravated assault, V.T.C.A. Penal Code, Secs. 22.01(a)(1), and 22.02(a)(1); however, this stipulation is not evidence of an aggravated assault included within the offense charged in the indictment.

In order to sustain a conviction for aggravated assault as a lesser included offense to the robbery charged in this indictment, the stipulation should have been that “I did intentionally and knowingly threaten Serafin Calo with imminent bodily injury by using a deadly weapon.”

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ODOM, Judge (concurring).

I concur in the majority‘s reasoning and disposition, but take this opportunity to express a second reason that dictates reversal.

It is well established that upon trial by jury, if the charge authorizes conviction under a theory not supported by the indictment, reversal will follow. E. g.

;
. It follows that a conviction based solely upon a theory not supported by the indictment must fall. Such was the case here, as demonstrated by the facts set out in the majority opinion.

With these remarks, I join the majority.

Notes

1
In Mosley it was shown that the air gun was spring activated rather than “adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . .”