Newton v. State

648 S.W.2d 693

Tex. Crim. App.

1983

Check Treatment

Dennis NEWTON, Appellant, v. The STATE of Texas, Appellee.

No. 64513.

Court of Criminal Appeals of Texas, En Banc.

April 13, 1983.

650 S.W.2d 693

he had been to one of the bars and “didn‘t think” he made any comment concerning the size of the drinks. Juror Bradford stated one of the jurors commented that the size of the drinks testified to “were large enough to be double shots,” but he could not recall the juror saying he had personally been to the bars. Juror Somerville stated that Hart did say he knew where the bars were. She also stated, “Although there was discussion of the size of drinks testified to, we agreed that we did not know whether they were single or double shots because the evidence did not indicate.”

Clearly, the State did not controvert Mitchell‘s claim that Hart had told the other jurors that he had been to one of the bars. In fact, the affidavits offered by the State substantiated Mitchell‘s claim. Nor did the State controvert Mitchell‘s claim that Hart also said that, because of his knowledge of the particular bars in question, he believed the drinks consumed by appellant were “doubles.”

Somerville‘s affidavit stated that there was some discussion about the size of the drinks, but that the evidence did not indicate whether they were “singles or double shots.” She is correct, the evidence did not so indicate. Nevertheless, she does not dispute Mitchell‘s claim that Hart made such a statement.

The facts of record previously recited show that this “other evidence” was detrimental to appellant. The amount of alcohol consumed by appellant was one of the central issues, and the juror‘s statements were adverse to appellant‘s attack on that issue and influenced the verdict of at least one of the jurors.

The State contends that, although Article 40.03(7), V.A.C.C.P., has created a per se rule for felonies requiring a judge to grant a motion for new trial in such cases, see

Hunt v. State, 603 S.W.2d 865 (Tex.Cr.App. 1980) and , misdemeanor convictions do not fall under the same per se rule by virtue of the permissive “may” in Article 40.04, V.A.C.C.P. Therefore, the State contends, the judgment should be overturned only if there was a clear abuse of discretion.

We do not find it necessary to address such an issue in this case where there is uncontroverted evidence that the jury, during deliberation, received other evidence that had a harmful, detrimental effect on appellant. See

Trevino v. State, 582 S.W.2d 111 (Tex.Cr.App.1979). Article 40.03(7) was designed by the legislature to guarantee the integrity of the fundamental right to trial by jury by restricting the jury‘s consideration of evidence to that which is properly introduced during the trial. See . The right to trial by jury is no less protected because the trial is for a misdemeanor. See Article 1.12, V.A.C.C.P.; Tex. Const., Art. I, § 15.

The trial court erred in overruling the appellant‘s motion for new trial.

The judgment is reversed and the cause is remanded.

Lanny Voss, Plainview, for appellant.

Marvin F. Marshall, Dist. Atty. and Ron Felty, Asst. Dist. Atty., Plainview, Robert Huttash, State‘s Atty., and Alfred Walker, Asst. State‘s Atty., Austin, for the State.

OPINION

CLINTON, Judge.

Appellant was charged by indictment with the offense of aggravated robbery, V.A.T.S. Penal Code, § 29.03(a)(2), and was found by a jury to be guilty of the lesser included offense of robbery. Section 29.02, supra. Punishment was assessed at imprisonment for twenty years. At the outset we confront unassigned fundamental error in the jury charge on guilt or innocence, which we consider in the interest of justice.¹ Article 40.09, § 13, V.A.C.C.P.

The court instructed the jury in pertinent part as follows:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Dennis Newton, heretofore on or about March 23, 1979 in Hale County, Texas while in the course of committing theft and with intent to appropriate property of Cathy Landa, to wit: current money of the United States without the effective consent of the said Cathy Landa and with intent to deprive the said Cathy Landa of said property, did then and there by using and exhibiting a deadly weapon, to wit: a pistol, intentionally and knowingly place Cathy Landa in fear of immient [sic] bodily jnjury [sic], you will find the defendant guilty of aggravated robbery.

If you find from the evidence that the defendant committed the offense of robbery, as herein defined, but you have a reasonable doubt as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery, and not of aggravated robbery.

If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, then you will find the defendant and say by your verdict not guilty.”

The court‘s charge, rather than merely stating abstract propositions of law and general principles contained in the statutes, must clearly apply the law to the very facts of the case.

Williams v. State, 622 S.W.2d 578 (Tex.Cr.App.1981). In the present case the charge contained certain abstract principles governing the law of robbery but did not apply those principles to the specific facts of this case.³ The charge left the jury to speculate about which specific actions on appellant‘s part, if believed true beyond a reasonable doubt under the evidence of this case, would constitute the offense of robbery. .²

For that reason the judgment must be reversed and the cause remanded.

McCORMICK, Judge, dissenting.

Because the majority has again erroneously decided the issue presented in this case, I must register my dissent. Although not assigned as error by the appellant, the majority elevates the issue in this case to the level of fundamental error which they have considered in the interest of justice. The same issue was recently before the Court in

Antunez v. State, 647 S.W.2d 649 (1983). Being in total agreement with Presiding Judge Onion on this point, I hereby adopt his dissenting opinion on the overruling of State‘s motion for leave to file motion for rehearing without written opinion in that case.

I dissent.

ONION, P.J., and W.C. DAVIS and CAMPBELL, JJ., join in this dissent.

Notes

Appellant complains in a pro se supplemental brief that the court‘s charge, “in applying the law to the facts, authorizes a conviction on the theory alleged in the indictment [aggravated robbery] and on a theory not alleged in the indictment [robbery].”

All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

See, e.g., Texas Criminal Jury Pattern Charges § CPJC 29.03(a)(2), Willson‘s Criminal Forms Annotated, Morrison and Blackwell § 99.02, 8 Texas Practice at 372.