*2 by tо Fred Billy Lanford bodily ODOM, and Before TOM G. DAVIS on wrench striking him the head with a CLINTON, JJ. of you then will find the defendant robbery. aggravated of the offense OPINION so the evidence you “Unless find from doubt, have you beyond a reasonable DAVIS, Judge. TOM G. thereof, you will find a reasonable doubt Appeal аg- is taken from a conviction of guilty.” not gravated robbery. jury The found charge include The failed to guilty. lant to be Punishment was en- “knowingly” or culpable of mental state and by prior robbery hanced a conviction fatal. “intentionally.” Such an omission is by set life jury prison. Apрellant at in 29.02 29.03. and V.T.C.A. Secs. erred fail- by contends that trial court See, State, 577 S.W.2d Mendoza ing requisite State, 583 S.W.2d Cr.App.); Holloway v. of culpable mental state for the offense State, 567 (Tex.Cr.App.); West aggravated robbery. Thompson v. (Tex.Cr.App.); S.W.2d 515 Appellant charged by State, (Tex.Cr.App.); Ely v. which stated: (Tex.Cr.App.); West 582 S.W.2d (Tex.Cr.App.); present- Three: And it is further (Tex.Cr. “Count Windham v. ed to said court the said in and App.). also Williams See Porter, County of Tarrant (Tex.Cr.App.). aforesaid, about and on or the 31st State is and cause judgment reversed The and did then remanded. knowingly unlawfully, intentionally court en banc. Before the while in the course theft and maintain with intent obtain REHEARING MOTION FOR STATE’S owner, property control DOUGLAS, Judge. Fred with- to-wit: be- out Fred the conviction majority the effective consent The reversed deprive Billy did instruct the Lanford and intent court cause the , property appellant “intentionally” Fred then Lanford find that knowingly robbery. committed cause opinion. The set No facts are out striking on the head with Lanford him two majority paragraphs uses wrench;” [Emphasis added.] charge and cоurt’s law to the facts of the It does not consider reverses. guilt whole; as a the record applied it does not consider phase and innocence wherein Article 36.- whole, it does consider recites: law to the facts the case the time of the 19, V.A.C.C.P., excepted to at provides which substance appearing error that no case shall be reversed unless unless the error and not then Article in the court’s harmful. from the record was calculated supra, applied should be defendant, or unless it part, thаt: present provides, case. It defend- the record that the appears from *3 appears by “Whenever it the record trial impartial fair and ant has not had a ” any upon appeal any criminal action that added) (Emphasis .... 36.14, 36.15, requirement of Articlеs 36.- upon which part of the indictment That 16, [concerning 36.17 and 36.18 the court’s reads as follows: was convicted charge] disregarded, judg- has been ment shall not be reversed unless further And it Three: “Count the record was cal- appearing error from court that presentеd in and to said defendant, injure culated to of Porter, of County from the record that appears or unless aforesaid, on or about Tarrant and State the defendant has not had a fair and ” 1977, did then the 31st of impartial trial.... intentionally and know- unlawfully, there many years This Cоurt for has followed committing ingly while in the course State, 75 this statute. In Echols v. Tex. obtain and main- theft and with intent to 369, (1914), Cr.R. S.W. 786 the construc- owner, property of the tain control of tion of the statute is correct. The Court to-wit: wrote: the effective consent just “It is such that causеd cases as this Fred Lanford and with intent Legislature to amend old article property, of said Billy Fred Lanford now Proce- Code Criminal intentionally and know- then and dure, provide that the errors in the bodily injury to ingly cause serious reversal, charge should not be cause for head by striking him on the Fred Lanford objected presented unless to when wrench; added) (Emhphasis ...” counsel for their inspection. Errors complained the character now of in the charge defined armed Paragraph 1 of the charge were under the old law raised in robbery as follows: court, the motion for new and this offense of rob- person “A commits the matters, impelled because of such felt theft, if, bery in the course of reverse Legislature the case. The desired property, he intent to obtain with evil, to correct what it considered an bodily knowingly or causes said this court should not reverse under becomes to another. The offense circumstances, such and should not con- if a commit- aggravated robbery person grounds appeal sider such when the ting robbery cаuses trial court’s attention was not called to added) (Emphasis to another.” such matters was read before words, and “know- These “intentional” jury....” to the to their Pe- according were ingly”, defined present In the the matter was not Y.T.C.A., nal Code definitions. raised in the trial or in а motion for new Section 6.03. trial. reads 3 of the court’s Paragraph 178, 163 Wright as follows: (1914), that S.W. 976 the Court held intentionally, or with “A acts exception person statute of his intent, respect the trial wrote: to the nature the time of with when of his conduct or to a result conduct it is thаt the intent and “... So clear or desire to objective it is his we conscious purpose Legislature is that cause of in the conduct or engage because of error should not reverse case be, charge, if error there unless it result. on the sub- most recеnt cases One of the knowingly, with person “A acts record should showing that the entire knowledge, respect ject nature with sur- his conduct or to the circumstances State, 606 S.W.2d to is Gant v. be looked when he is rounding his conduct aware by Judge Clinton. the nature of his conduct Woоdley, Quinn person A acts know- circumstances exist. (1956), Tex.Cr.R. noted knowledge, with respect ingly that for there to be a reversal must when he is the results his conduct be error in the court’s and that such cer- reasonably that his conduct is aware error must have been calculated cause tain to the result.” the rights of the defendant. These cases Paragraph charge applied 4 of the state the rule. correct reads follows: law to facts and mind, we should consider the With this *4 “Now, you if find from the evidence 1, 1977, facts. Fred May Billy Lanford On in Tаr- beyond a reasonable doubt that manager was working as a of Carl’s Pawn or about 31st County, rant the Shop entered the store and appellant when 1977, then the defendant did asked a When fishing to look at rod. Lan- and there in the course commit- while around, to ford turned struck him ting appellant theft and with intent obtain property Billy maintain control of Fred the the head with several times in back of a Lanford, wit, the fell on socket wrench. When the Lanford floor, the said Fred Billy effective consent of display broke cabi- appellant glass the intent and with the taking pistols. net and stole two After the prop- the said Fred Lanford pistols, money he removed from the the erty, did then and there cause serious register cash and fled. When Lanford was by Fred Lanford by neighbor, found a he was wounded and striking him head with a wrench on the neighbor an ambu- bleeding. The called guilty will the defendant you then find lance. robbery. offense of aggravated the Smith, treating physician, Clayton Dr. you find from evidence “Unless so was struck testified that Lanford doubt, ifor have beyond you a reasonable was times. Thе skull frac- least three thereof, you find a reasonable doubt will fragments tured bone had actu- and guilty.” (Emphasis defendant ally in cut the brain. Lanford remained added) days hospital until his death some three to, A verdict form and re- submitted later. He died as a result of the as follоws: by, turned is the brain complications brain and from “We the find injury. charged in Three of the indict- Count
ment.
robbery
pistols
The two
taken in the
were
Michael Bedford
/s/ Don
shops
were traced to
pawn
found in
and
Foreman”
for this
appellant. Appellant was arrested
added)
(Emphasis
signed
a
gave
and
confession admit-
offense
ting
reads as
robbery.
confession
alleged
Three
Count
follows:
intentionally and know-
appellant
no
robbery. There was
ingly committed the
31, 1977,
May
shortly after
“Tuesday,
charge.
to the
objection
Pawn
Carl’s
12:30 P.M. I walked into
When I
on 8th Avenue.
Shop located
record as man-
Let us look
the entire
in,
man who evident-
walked
I saw an old
was
to see
dated
statute
he
manager
when
turned
ly was the
...
error calculated to
picked
I
go
register
to the cash
around to
words
оmitting
in
“intention-
appellant
and hit
up
wrench of
sort
a socket
some
from the court’s
ally”
“knowingly”
He fell to
him
of the head.
in the back
charge.
as a
charge should be viewed
“The
thing that I
dropped
the floor and I
not be limited
review should
whole and
him
stepped
him with.
I then
over
hit
standing alone. Cain
parts of the
got
pistols
two
...
I reached inside and
154 Tex.Cr.R.
lying
which were
in boxes
After
...
(1950).”
over to the
getting
pistols,
I went
register, opened
cash
it and removed
years that
many
It has
rule for
been the
money
I then stuffed the
about $50.00.
apply-
elemеnts in
scienter
the omission of
the old
my pocket.
glanced
in
I
over and
not render
the facts will
ing the law to
I then
lying
fundamentally
man was still
on the floor.
defective. In Sexton
”
(1906),
S.W.
ran out of the store....
concealing
proper-
stolen
in a
admit-
light
In
of the fact that
omitted;
“frаudulent”
ty
the word
striking
ted
Lanford in the head
State, 57 Tex.Cr.R.
Wigfall
stealing
guns
wrench and
the two
admitted
(1910),
word “willful”
S.W.
immediately
striking
after
him
money
case was omitted.
an arson
leaving
lying
his
victim
on the
wounded
MeCary
scene,
highly unlikely
floor and fled
by Presiding
opinion
Cr.App.1972), an
by the
that the
was confused оr misled
Onion,
objection
no
“intentionally”
court’s failure to include
held that absent
the Court
the law to the
scienter re
omission of all
timely objection
no
facts. There is
evidence of the lack
*5
error.
not reversible
quirements was
knowingly doing
or
the act.
relatively recent case of Rivas
In a
The omission of the word “intentional” or
1973),
State,
(Tex.Cr.App.
600
496 S.W.2d
“knowing”
charge
in the court’s
did not
Odom,
Judge
the
opinion by
an
deny appellant
impartial
a fair and
trial.
malice
in this murder with
law to the facts
majority
The
of the Court did not con-
left out.
“voluntary”
the word
sider the whole record to see if the
of the
part
Murder was defined in the first
impartial
lant was denied a fair and
trial.
ap-
was not instructed
charge;
Let us consider next the construction of the
be
plying the law to the facts that it had to
chargе
just
para-
as a whole instead of
held no reversible
voluntary. The Court
graph
charge
of the court’s
to see if the
Also,
of Thomas v.
error.
in a recent case
jury was misled or if there was harmless
State,
an
(Tex.Cr.App.1980),
599
812
S.W.2d
error.
Odom,
applica-
Judge
the Court’s
оpinion by
judge
The trial
defined
gave
improp-
facts
tion of the law to the
and set out the elements of
“intentionally”
jury’s
on the
consideration
er restriction
aggravated robbery
the offense of
in the
error,
Finding no reversible
self-defense.
beginning
charge.
Then
pаrt
Judge
wrote:
Odom
form,
jury,
in the
verdict
submitted
when fundamental error in the
“...
jury was instructed not to return
however,
be
jury charge
urged,
it must
guilty
verdict unless it found
calcu
determined whether
error was
guilty
charged
The
indictment.
rights of
lated to
indictment included the words “intentional-
he had been denied а fair and
whether
ly”
“knowingly.”
construing
V.A.C.C.P.,
impartial
Article
whole,
definitions,
charge as a
including
as a whole.
charge
and the
must be read
law
application
the verdict and
State,
(Tex.
839
541 S.W.2d
Smith
the facts and the indictment which was
Cr.App.).”
to,
referred
be no harmful er-
there could
State,
(Tex.
In Jackson v.
ing graph, directed the to ac which recent cases There have been some quit aggravated rape the defendant of part of a only have considered did nоt find that he threatened death they law to the facts without applies which “When bodily injury. considering parts other entirety, is read in its it does not authorize considering if a defendant did finding guilt aggravated rape The Court should fol receive a fair trial. threat of unless the alsо finds the Legislature passed by low the statute bodily injury.” death or serious This was cases and not and all of the well reasoned fundamentally defective. charge prevented reverse unless error in the State, 190 In Pittman v. a defendant from a fair trial. See Davis, writing for Cr.App.1977), Judge State, Tom dissenting opinion in Cleland Court, charge must be read wrote that a (Tex.Cr.App.1979). S.W.2d as a whole and review is not limited to rehearing State’s motion for parts standing alone. See Peterson v. should be granted judgment and the (Tex.Cr.App.1974); S.W.2d affirmed. also, see Mathis v. Dally. written misapplication
Where there is a of law to facts, where there is it is not reversible Tex. objection.
no Landrom v. (1942).
Cr.R.
Intent to kill was not included
charge. objection was no and no There Johnny and Daniel Clark BILLIE Clough
reversible error. 161 Tex. Lee Billy, Appellants, (1955). Cr.R.
Failure to on the intent objection. whеre there is no reversible error Texas, Appellee. The STATE of Tex.Cr.App. Soto 58146, 58147. Nos. (1955). Appeals of of Criminal prop stolen Court conviction “fraudulently” En Banc. the failure to insert erty, the law to the court’s April 1980. the facts is not reversible error. Czernicki Rehearing As Modified on Denial 169, 211 S.W. 1, 1980. Oct. (1919). cited, point could be Many other cases in enough. examples
but these consideration of the only
Not does the charge as a whole show
entire record or the error, consideration of but
harmless charge applying the three of the
paragraph no reversible error. the facts shows
law to convict, before it can requires jury,
It ap- doubt that a reasonable beyond
believe while intent to commit theft
pellant had the
striking the victim on head to show that enough
wrench. This is robbery. How
lant committed