Lead Opinion
This is an appeal from a conviction for the offense of robbery. The punishment, enhanced by two prior felony convictions, is imprisonment for life.
The appellant asserts that: (1) the trial court erred in overruling his motion to quash the indictment which he says does not allege the offense in plain and intelligible language; (2) in overruling his motion to quash the enhancement paragraphs of the indictment; (3) in refusing to submit requested charges for lesser included offenses; (4) in overruling his objection to his in-court identification; and (5) in overruling his motion for mistrial after the prosecutor allegedly asked an improper questiоn.
The indictment alleges in pertinent part: “... on or about the 16th day of OCTOBER, A. D. 1977, DAVID ROYSTER, hereinafter called defendant, did then and there intentionally and knowingly cause bodily injury to RONALD SIMMONS, while the said defendant was in the course of committing theft of property, namely: ONE (1) PURSE, from MRS. DAN WARD, JR., the owner of said property, without the effective consent of the said MRS. DAN WARD, JR., and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property;”
The complaint is that the indictment does not charge the offense of robbery in plain and intelligible language as required by Art. 21.02, Sec. 7, V.A.C.C.P. Specifically, the appellant says it does not allege from whom the purse was taken and does not allege that the appellant knowingly or intentionally committed or attempted to commit the theft from either Ronald Simmons or Mrs. Dan Ward, Jr. It is alleged in the indictment in plain and intelligible language that Mrs. Dan Ward, Jr. was the victim of the theft; her purse was alleged to have been taken. Also, it is alleged that in the course of committing that theft the appellant caused bodily injury to Ronald Simmons.
The holding in Servance v. State,
Next the appellant complains: “The trial court erred in overruling appellant’s motion to quash both enhаncement paragraphs because there was no reference to the authenticity of the sentences included in either prison packet certification.” We interpret this ground of error to be addressed to the insufficiency of the pleading, and the decision in Hollins v. State,
“Further, and more importantly, we observe that if the proof failed to support the enhancement allegations the punishment could not be legally enhanced. But this would not be grounds to quash that portion of the indictment. The office of a motion to quash an indictment is normally addressed to the sufficiency of the allegations therein, and not to whether there may be or is a variance between the allegata and probata.”
Whether or not the evidence is properly admissible and whether it supported the allegations regarding the enhancement of punishment may not be tested by a motion to quash. Johnson v. State,
Complaint is made that the trial judge refused to submit to the jury appellant’s requested charges on the lesser included offenses of assault causing bodily injury and theft from the person. He argues that the indictment alleges an assault against Ronald Simmons and theft from the person of Mrs. Dan Ward, Jr., and that these of
“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”
See Watson v. State,
The pertinent facts will be summarized. Mr. and Mrs. Dan Ward, Jr., and Mr. and Mrs. Walter S. Falk, Jr., were among a large group of people who were in San Antonio attending а conference of the Texas Municipal League. They left one of the social events and were walking toward a parking lot when Mr. Falk, who was the Mayor of Rockport, heard a scuffle in front of him where the Wards were walking and heard Mrs. Ward exclaim: “Oh, no!” Then Falk saw a man running past him with Mrs. Ward’s purse. Falk started to chase the man who ran into some bushes. Falk thought the man was going to surrender, but a lady then warned Falk that the man had a knife. The man came face to face with Falk at a distance of about three feet and slashed at Falk twice. Falk testified he got a good look at the mаn at this time. The man continued his attempt to escape; officers and several other men pursued him. During the chase the man cut Ronald Simmons with a knife. The man was caught by those who had been pursuing him. Falk identified the appellant on the scene and at the trial as the man that he chased and the mаn who brandished the knife. The appellant did not testify or present any evidence and rested with the State.
The evidence does not raise issues which would have required the court to submit to the jury the requested charges on the lesser included offenses.
Appellant argues that his trial identification by the witnеss Falk was tainted by an impermissibly suggestive pretrial photographic identification procedure and that the in-court identification by that witness was not shown to be of independent origin.
During a suppression hearing the trial court ruled that Falk could not identify the appellant for the jury. Thereafter Falk’s testimony was interrupted; the jury was removed and more testimony was elicited in the suppression hearing. After the trial judge heard this additional testimony he ruled that Falk could identify the appellant for the jury.
Appellant’s complaint stems from an incident which occurred at the police station when Falk wаs there to make a written statement concerning this offense. There was no lineup and Falk was not shown a photographic spread. Falk saw a photograph of the appellant on a desk and volunteered that that was the man who grabbed the purse. An officer then told Falk the aрpellant’s name.
The trial judge did not err in allowing Falk to identify the appellant. The evidence supports the trial judge in finding that the witness’ ability to make an in-court identification had an origin independent of the alleged improper photographic identification. Thomas v. State,
The appellant urges that thе court’s failure to grant a mistrial was reversible error. The court sustained an objection and instructed the jury to disregard a question
The judgment is affirmed.
Dissenting Opinion
dissenting.
Some six months ago, in Watson v. State,
Now, writing for the Court Panel in this cause, Judge Dally has restаted the Sansone rule, which the Court En Banc has just resisted in Watson v. State. Though I respectfully disapprove of the continued adherence to the Daywood/McBrayer test, I cannot agree to adopt the federal Sansone rule.
Accordingly, I must dissent.
Notes
. Daywood v. State,
. McBrayer v. State,
. In Sansone v. United States,
Indeed, the most recent authority cited for the federal rule stated by Justice Goldberg, Berra v. United States,
.Contemporaneously with Sparf, however, the Supreme court decided Stevenson v. United States,
“The question is whether the court erred in refusing this request. The evidence as to manslaughter need not be uncontrаdicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then becаme a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. * * * The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in sеlf defence [sic], and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.”
It then found that there was “enough, in any view that could be taken of suсh evidence, to require the submission of the question of man
Lead Opinion
OPINION ON COURT’S MOTION FOR REHEARING
Appeal is taken from a conviction for robbery. After the jury found appellant guilty, punishment, enhanced by two prior convictions, was assessed at life.
This cause has been resubmitted on the Court’s motion with regard to the manner by which a penal of this Court, on original submission, disposed of appellant’s fourth and fifth grounds of error. In those grounds of error, appellant maintains the trial court erred in refusing to submit his specially requested jury charges on the lesser included offenses of assault and theft. Appellant contends that while proving he committed a robbery, the State also proved the commission of an assault and a theft.
Betty Ward testified that on October 16, 1977, her purse was “snatched” on Market Street in San Antonio. Ronald Simmons pursued the individual who took Ward’s purse. During the chase, Simmons received a knife wound above his left eye. Walter Falk identified appellant as the person who took Ward’s purse. Appellant did not testify at trial or call any witnesses.
On original submission, the panel found no error in the court refusing to submit appellant’s requested jury charges on assault and theft. In stating the rule of law applicable to the necessity of charging on a lesser included offense, the panel held:
“... It is only when there is conflicting evidence concerning an element of the greater offense which is not an element of a lesser offense that a charge on lesser included offense need be given. The rule stated another way by Mr. Justice Goldberg in Sansone v. United States,380 U.S. 343 ,85 S.Ct. 1004 ,13 L.Ed.2d 882 (1965) is:
“ ‘A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’
“See Watson v. State,605 S.W.2d 877 (Tex.Cr.App.1980; Dally J., concurring in part and dissenting in part); Berra v. United States,351 U.S. 131 ,76 S.Ct. 685 ,100 L.Ed. 1013 (1958); Sparf v. United States,156 U.S. 51 ,15 S.Ct. 273 ,39 L.Ed. 343 (1895); United States v. Madden,525 F.2d 972 (5th Cir. 1976); Yates v. United States,384 F.2d 586 (5th Cir. 1967).”
In Campbell v. State,
Thus, in determining whether a charge on a lesser included offense is required, a two step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Eldred v. State,
In the instant case, while proving the robbery, the State likewise proved the theft from Ward and assault upon Simmons. Thus, the lesser included offenses of theft and assault were included within the proof necessary to establish the offense charged of robbery. However, there was no evidence presented at trial which showed that appellant, if guilty, was only guilty of the lesser included offenses of theft and assault. We find no error in the court refusing to submit appellant’s specially requested jury charges on the lesser included offenses of theft and assault. Therefore, although the panel opinion failed to rely on the rule heretofore established by the cases of this Court, the disposition made of the grounds of error was nevertheless correct.
The judgment is affirmed.
Concurrence Opinion
concurring.
I cannot agree that the Daywood-MeBrayer rule is correct. I adhere to my views and the test set out on original submission.
Dissenting Opinion
dissenting.
For the reasons given in my dissenting opinion on original submission, I continue to urge careful reexamination of the “guilty only” test of Daywood-McBrayer and, therefore, dissent to its application here.