Jock Demitri RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
No. 01-91-00521-CR.
Court of Appeals of Texas, Houston (1st Dist.).
July 2, 1992.
Opinion on Denial of Rehearing Aug. 20, 1992.
835 S.W.2d 535
Finally, The Island argues that the arbitrators improperly used the “total cost” method in calculating Hayman Company‘s damages. As we stated above, however, errors in law or fact are not sufficient to set aside an award unless they are such as to imply bad faith and failure to exercise honest judgment. Having reviewed the arbitration record and Hayman Company‘s evidence concerning its damages, we conclude that the arbitrators’ decision concerning damages was not so erroneous as to result in fraud or manifest injustice or to imply bad faith and failure to exercise honest judgment.
We conclude, therefore, that the arbitrators did not commit a gross mistake in determining that Hayman Company had the right to assert the claims in question; nor did they commit a gross mistake in calculating the award.
3. Fraudulent Inducement
Finally, The Island argues that Hayman Company fraudulently induced it to enter into a construction contract containing an arbitration clause when Hayman Company had already assigned the contract to TJH Company or was planning to do so. The Island claims that it specifically relied on Hayman Company‘s reputation in entering the contract, and that it would not have agreed to arbitrate with TJH Company. Therefore, The Island argues, since the arbitration agreement was fraudulently induced, there was no valid agreement to arbitrate and the award must be set aside under
This argument is yet another attempt by The Island to have the ownership issue relitigated in a court of law. As discussed above, the arbitrators determined that Hayman Company owned the claims it asserted. At no time, therefore, did The Island arbitrate with TJH Company. There is no question that a valid agreement to arbitrate existed between The Island and Hayman Company. In order for this Court to determine that the contract was fraudulently induced, we would have to conclude that TJH Company was the real party in interest; the arbitrators have already decided that issue, and we again decline The Island‘s invitation to revisit it. Further, at no time during the arbitration proceedings did The Island claim that it had been fraudulently induced to enter into the contract; therefore, it has waived any such complaint. We reject this argument as being without merit.
CONCLUSION
We conclude that the arbitrators neither exceeded their authority nor committed a gross mistake in their award to Hayman Company. Further, we conclude that The Island was not fraudulently induced to enter into the construction contract in question. Accordingly, we overrule The Island‘s point of error and affirm the judgment of the district court confirming the arbitration award.
Stanley C. Kirk, Houston, for appellant.
John B. Holmes, Jr., Julie Klibert, Joan Huffman, Houston, for appellee.
Before DUGGAN, COHEN and PRICE, JJ.
COHEN, Justice.
A jury convicted appellant of aggravated robbery, and assessed punishment of life imprisonment. We reverse.
The State presented evidence that appellant, his girlfriend, and the complainant were together in the complainant‘s car doing errands on the day of the offense. The complainant drove, appellant‘s girlfriend was in the front seat, and appellant was in the back seat. When they arrived at an apartment complex, the complainant parked the car.
As appellant‘s girlfriend began to open the door to leave, she suddenly heard a shot. No threatening words or acts preceded the shot. She turned around and saw appellant holding a gun and the complainant bleeding from the head. Appellant then shot the complainant again. Appellant took the complainant‘s jewelry, pulled him from the car, and drove off in the car.
The indictment charged that appellant:
while in the course of committing theft of property owned by [complainant], and with intent to obtain and maintain control of the property, intentionally and knowingly threaten[ed] and place[d] [complainant], in fear of imminent bodily injury and death, and the [appellant] did use and exhibit a deadly weapon; to-wit a firearm.1
The jury was instructed that in order to convict appellant of aggravated robbery, it must find that he:
intentionally or knowingly threaten[ed] or place[d] [complainant] in fear of imminent bodily injury or death, and the [appellant] did use or exhibit a deadly weapon; to-wit a firearm.
The jury convicted appellant of aggravated robbery “as charged in the indictment.”
Appellant contends the evidence is insufficient because it does not show he threatened or placed the complainant in fear of imminent bodily injury or death.
The State was required to prove beyond a reasonable doubt that the complainant was threatened or placed in fear of imminent bodily injury or death. See Taylor v. State, 637 S.W.2d 929, 933 (Tex.Crim.App. [Panel Op.] 1982); Vaughn v. State, 634 S.W.2d 310, 312 (Tex.Crim.App. [Panel Op.] 1982) (offense of aggravated robbery may
When robbery is committed by threats of bodily injury or placing another in fear, that fear of imminent bodily injury must be such that it would induce a person to surrender property against his will. See Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989). Threats can be communicated by action, conduct, or words. McGowan v. State, 664 S.W.2d 355, 357 (Tex.Crim.App.1984).
The McGowan court reversed an aggravated assault conviction under similar facts. 664 S.W.2d at 357-58. By unanimous vote en banc, the McGowan court held the evidence was insufficient to show the defendant used a knife to threaten the complainant because the complainant never saw the defendant holding a knife, nor did she testify that defendant threatened her with a knife.2 Here, the evidence shows that before appellant shot the complainant from behind without warning, appellant did not display the gun and did not threaten the complainant with it. The evidence in this case of threats and placing in fear is no stronger than the evidence held insufficient in McGowan. No evidence shows the complainant was threatened or placed in fear of imminent bodily injury or death.
The State relies on Davis v. State, 796 S.W.2d 813 (Tex.App.—Dallas 1990, pet. ref‘d). However, the complainant in Davis testified at trial that the defendant placed her in fear of imminent bodily injury. Id. at 816-17. There is no such evidence here.
The State proved that appellant committed aggravated robbery by 1) causing serious bodily injury, and 2) by using a deadly weapon and causing bodily injury; however, no such allegation was alleged in the indictment or submitted to the jury. See
Appellant‘s points of error one through three are sustained.
We reverse the trial court‘s judgment and render judgment of acquittal.
OPINION ON STATE‘S MOTION FOR REHEARING
The State contends that a threat can be inferred from the fact that appellant shot the complainant a second time. The State argues that this suggests the complainant was still alive after the first shot, and if alive, he would certainly have felt threatened and placed in fear as a result of having been shot.
The evidence did not show which shot caused the complainant‘s death, but it is undisputed that appellant fired the first shot into the complainant‘s head at point-blank range. The State‘s argument requires us to assume, without evidence, that the victim survived the first shot, and in addition, was still conscious enough to perceive the threat. The law does not allow us to stack one inference upon another in order to find the evidence sufficient. Threats can be communicated by conduct, but only if the victim perceives the threatening conduct. We find no evidence that the victim did so.
The motion for rehearing is overruled.