625 S.W.2d 13 | Tex. App. | 1981
OPINION
This appeal is taken from a judgment of conviction for robbery by threats, a second-
The record reflects that on March 31, 1978, appellant went into an S. H. Kress & Co. store in San Antonio, picked up two butterfly necklaces, and began to leave the store. Delores Rossel, a department supervisor for the store, attempted unsuccessfully to stop appellant at the door, but he ran out the main entrance. Rossel reported the incident to Andrew Dominguez, the Kress stockboy, who pursued appellant down an alley. Dominguez testified that appellant stopped in the alley and turned to him with a knife in his hand, whereupon Dominguez returned to the store. Shortly thereafter, appellant was apprehended by police, and a show-up was conducted at which both Ros-sel and Dominguez testified that appellant threatened them in Spanish.
Appellant’s sole ground of error alleges that the court committed fundamental error in failing to charge the jury on the statutory definition of “in the course of committing theft” because without the definition, the charge authorized conviction upon facts that could not constitute any offense.
Under Tex.Code Crim.Pro. art. 3.01 (Vernon 1977), all words used in the Code are to be understood according to common usage, “... except where specially defined.” The phrase “in the course of committing theft” is specially defined at Tex.Penal Code Ann. § 29.01(1) (Vernon 1974) as “. . . conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” It has generally been held that such specially defined words are to be defined in the charge to the jury, King v. State, 553 S.W.2d 105, 107 (Tex.Cr. App.1977), unless, under the facts of the case,.the jury could not have been misled by the failure of the charge to define the word or phrase. Rohlfing v. State, 612 S.W.2d 598, 603 (Tex.Cr.App. 1981). If the jury might have been misled, then such failure to include the definition is considered “calculated to injure the rights of appellant” and is fundamental error. Id.
After reviewing the record, we find that the omission of the definition of “in the course of committing theft” falls within the general categories of fundamental error
As a result, the jurors were instructed to decide whether appellant’s threats occurred “in the course of committing theft,” but were not apprised that this element could be satisfied by evidence that appellant was in flight from a completed theft. Without an awareness of the fact that such circumstances could constitute robbery, there is a substantial likelihood that the jury could have been misled into convicting appellant for robbery by finding him guilty of the elements of the offense of theft.
We agree that appellant’s case was prejudiced by the trial court’s omission of a defi
The judgment is reversed and the cause is remanded.
. Even if this had not been deemed fundamental error, the record reveals that the State objected to the trial court’s omission of the phrase definition directly after the charge was read to the jury and twice tried to inject the definition ■ into its closing argument without success. The State itself treated the omission as fundamental error at trial.