*1 zomng validity The had lost in was the of certain plaint Carrier Certificate. State action, City in that The prior judgment City of Bellaire. ordinances binding upon case was held to be Allied Van to the pursuant joined defendant 2524^-1, relitigate Lines who later wanted to of Article mandatory provisions identical question keep and to Central For- 11, TEX.REV.CIV.STAT.ANN. Section warding from hauling permit. its rendered judgment The summary The reasons the judgment former was held parties of all disposed court on its face trial be an in rem action, as stated in the importantly, More litigation. opinion court, were that the Motor dispute issue judgment resolved Carrier Act expressly states that it was not valid. City’s ordinances by declaring enforceable by private parties. TEX.REY. merits, reach the urging In this Court to 911b, (Vernon CIV.STAT.ANN. art. 16 that remand would City argued has Supp.1982-1983). The had already resubmission of a prompt lead to a tried the against Forwarding, issue Central judgment by all the summary motion for Inc., and the whole was bound Defendants, grant- which motion that decision under the statute. 535 S.W.2d summary salutary principle ed. at 415-16. not be rendered in favor judgment should There is no statute or other law that is, overshad- of a non-movant authorizes defendants Duddlesten and H- dispute policy expeditious owed R-D-37, Ltd. to act on behalf the public. 166-A, Tex.R. in Rule resolution embodied It great would be a risk to the public to Civ.P., language Article 2524—1. The hold that one bring proceeding can Declaratory Judgment Act is unam- against one individual a municipality, have “... such declarations shall biguous: give notice to and proceed only against the judgment effect of a final the force and individual, judgment but obtain a decree.” art. TEX.REV.CIV.STAT.ANN. binding upon then the city and the whole 2524-1, 1. I am of the public. the trial court is final and judgment of judgment in the summary judgment resolve the proceed and would appealable proceeding erroneously City merits of the case. Bellaire. The judgment correct was one adjudicate that did not plaintiffs’ rights KILGARLIN, J., in this dissent. joins against It City. should have been an inter- locutory or partial summary judgment. We
reverse the judgments of the courts below
and remand the cause to the trial court for
a trial against action of Bellaire. City
ROBERTSON, J., opin- dissents with an KILGARLIN, J., ion in which joins. SANDERS, Appellant, Robert Lee ROBERTSON, Justice, dissenting. decision, Texas,
I respectfully By Appellee. dissent. STATE majority requiring City of Bel- No. 63900. laire on remand to act. perform useless Texas, Appeals Criminal remanding this cause we needlessly will En Banc. waste the parties time and effort of the courts involved in The mer- litigation. Dec. cause, its of this forward Plain- brought 4, 1984. Rehearing On Jan. tiffs’ appeal of their declaratory Denied March Rehearing action, properly before the court and passed upon. should be
This is a action. declaratory judgment
The single issue raised Plaintiffs’ com- *2 property
dence took the appellant showed from the complainant as he was conduct entering a bank. This consti- tutes a Sec. 31.- degree third 03(d)(4)(B),supra. a different
Appellant testified to set of He admitted the property, facts. steps but claimed he found it on bank and did take it from not even know to whom it complainant or steal belonged. testified he did He he intended to admitted de- The prive true owner warranted testimony issue is whether this charge property, submission on theft of a class B under Sec. 31.- misdemeanor 03(d)(2)(A),supra. arguments three State advances that no error resulted
support position the requested charge. from refusal of First, that value argues element and jurisdictional a prosecution must be for a alleged and that because 31.03(d)(2)(A),supra, Sec. prose no such was made there 31.03(d)(4)(B), cution under Sec. jurisdiction charge no for submission Liberty, Hughes, appellant. Frank R. it is true indictment requested. While Holmes, Jr., allege every fact Dist. or information should Atty., John B. James C. Childs, or kind of degree which affect Brough Atty., and Mollie Asst. Dist. Huttash, 517 S.W.2d Houston, punishment,” Standley Atty. Robert State’s Walker, Austin, Wilson (Tex.Cr.App.); Asst. Atty., Alfred State’s rule of law (Tex.Cr.App.); State. for an offense prohibit does conviction properly alleged included in of the included merely because the elements out in the indictment. OPINION offense are not all set 314-316 Day v. ODOM,Judge. in this case (Tex.Cr.App.). The indictment appeal This is an from conviction for necessary to es facts properly alleged all V.T.C.A, person. theft under Sec. punishment tablish 31.03(dX4)(B). Code Punishment was Sec. jurisdic to invoke 31.03(d)(4)(B),supra, and at ten years. assessed The court there court. tion district had ground In his of error ar- fore bearing
gues when render reversible error was committed alleged requested charge proper relationship refused his the trial court 37.08, V.A.C.C.P., Arts. theft of with val- misdemeanor indictment, elements are not ue of five dollars or more less than $20. defendant V.T.C.A., 31.03(d)(2)(A). subject objection to any Penal Code Sec. notice. See grounds of insufficient Evidence showed first con- 7. The State’s evi- footnote taken to be about State’s $19. This person. tention is without merit. us to Conviction for theft under brings contention, 31.03(d)(2)(A) second included of- State’s 31.03(d)(2)(A) theft under person. is not a less- fense of theft from the er included offense of theft from the merit. argument without son, and the charge was for this reason brings argu- us to the last denied. properly ment, which is that under the facts of this *3 case the issue was not raised. The State point The central “ appellant testimony relies on elicited from ‘Theft,’ argument is: if taken to mean cross-examination, he during that when appropriation alleged with a value picked property he did not know how up of the subject matter and long it had been there or where the owner value proved punishment, is not a lesser contends this shows might be. included offense per to theft from [the] he appellant finding admitted what argument son.” The relies on the fact that to be abandoned and that thought theft from the is a third degree one, property, belonging abandoned to no under 31.03(d)(4)(B) Sec. regardless object cannot be the of a theft. Abandon- the value of the property, while convic ment, however, depends on an intentional charge tion under the requested by appel relinquishment by abandoning owner. require proof lant wrould This, of value. Property 1 T.J.3rd Abandoned 1. The reasons shows that additional property here was not abandoned. Had required is for conviction under Sec. appellant testified that he believed the 31.03(d)(2)(A)than is under Sec. abandoned, property had been he would 31.03(d)(4)(B). argument While this charge have been entitled to a on mistake have merit with respect to whether a V.T.C.A., of fact. Penal 8.02. Code Sec. charge 31.03(d)(2)(A) under Sec. however, Appellant, testify did not that he authorized as a lesser included offense un thought the owner the prop- had abandoned 37.09(1),V.A.C.C.P., der Art. argument erty. during The closest he came was cross- merit when Art. is con without examination he it was thought when he said sidered. That provides: statute lost Lost is not the re- “An offense is a lesser included offense relinquishment, sult of an intentional if: property. Appellant thus not abandoned stealing property, saying admitted “(2) it differs from the offense deprive intended to the owner of the that a less serious erty. judicial His was a confes- testimony injury or risk of to the same theft, sion to those elements of and raised son, property, interest suffices the issue that he was of the lesser guilty commission; to establish its included offense. The trial court erred in refusing requested charge. proven the cause is reversed and State and the offense by appellant admitted remanded. when he testified differ only in the “less serious injury or risk of injury to the same ONION, P.J., McCORMICK,J., dis- i.e., person,” to the owner of the property. sent. Theft from the includes a risk of injury to the person from whom the proper- MOTION OPINION ON STATE’S ty is taken that is not when theft FOR REHEARING committed by taking property from DAVIS, Judge. TOM G. sidewalk, the facts testified have been. Injury resulting depriva- is taken from a conviction for Appeal tion of the value is the same person. V.T.C.A. both instances even Punishment was though proof 31.03(d)(4XB). Sec. value is not required to establish theft years. from assessed at ten submission, 31.03(d)(4)(B),
On the Court In the instant Sec. charged” is the “offense conclud- Sec. appellant’s versed conviction after 31.03(d)(2)(A), purportedly supra is ing improperly that the trial court refused When the two “lesser included offense.” requested his on misdemeanor theft compared, “offenses” it is clear that less of property with or more but value (d)(2)(A) risk serious less than Y.T.C.A.Penal Sec. $20.00. them. difference between Under 31.03(d)(2)(A). held that 31.- We (d)(2)(A) value of the stolen 03(d)(2)(A),supra, can be a lesser included (d)(4)(B)this is must be established. Under offense of 31.03(d)(4)(B),supra, Thus, according necessary. 37.09(2), Art. V.A.C.C.P. V.A.C.C.P., wording 37.09(2), Art. 37.09(2),V.A.C.C.P., Art. reads: (d)(2)(A) not a lesser included offense a lesser included offense (d)(4)(B). *4 of theft defined stat- by “offense” as must, given include one of ute “(2) charged it differs from the offense An (d). of exami- provisions the Subsection the only in less serious law will illuminate this nation of our case injury same injury risk of to the point.
person, property, interest In Peoples commission;” to its suffices establish (Tex.Cr.App.1978),appellant convicted (Emphasis added.) V.T.C.A. Penal of under 31.03(d)(4)(A), felony. a third degree we opinion, our noted that: fundamentally ruled indictment was defec proven “The offense by failing allege prop tive for value of State and the by appel- offense admitted that, “the stolen. We held value erty only lant when testified differ it is property must be stated where made ‘less serious or risk of to the injury injury injury punishment; the basis of person,’ i.e., same to the owner done to the owner must person Theft from the includes injury an the amount of averred where person risk of to the from whom in the punishment.” essential element that is taken also Smith v. when theft is committed where the conviction was App.1978), sidewalk, erty from the testi- indictment, theft of over $200.00. fied the facts have been. Injury alleged value over but failed from sulting deprivation $10,000.00, was not allege value instances is the same in both it defective since invoked fundamentally though proof value court, but we district required per- to establish theft from the proof shown theft of noted if had (Emphasis added.) son.” $10,000.00(a degree felony) over as used This sound “offense” limit to a indictment would the conviction Y.A.C.C.P., 37.09(2), in Art. refers degree felony. third the conduct of the accused. In Christiansen conduct, 1.03(a) under Sec. that, “Re- we stated (Tex.Cr.App.1979), “does not constitute an offense value ceipt statute, unless it is defined as an offense of theft.” elements in critical municipal ordinance, com- county order added.) (Emphasis court, by and missioner’s or rule authorized appropriat- Appellant was adopted lawfully statute.” MONEY, namely ing, “property, CASH Martinez, Thus, hereafter the “offense” must differ owned Paul Gomez with the intent Complainant, in one charged” way styled the “offense the Defend- deprive Complainant, as established “offense” statute. ant stole the property or con- procedural, evidentiary sive of other Complainant.” (Emphasis added.) Or, If merely does it principles? stitutional the indictment had not alleged theft “from for deter- provide evidentiary procedure of the Complainant” it would has mining when a lesser included offense have been fundamentally defective for fail- been offered on trial of implicated by proof ure to invoke the jurisdiction of the court. subject charged, the offense which is then principles, notably to other of constitutional Thus, under our interpreting decisions dimension? 31.03, supra, the value of the property stolen anis essential element of the offense when it is made the basis punishment What is a Lesser Included Offense? and theft from the person is an essential face, lan- Though enough clear on its element of the offense when it is made the has treated guage of been of punishment. way, basis Put another as if it were ambiguous: “offense” of theft as defined statute will “An offense is a lesser included offense always include one of the provisions of Sub- (d). section (1) it by proof established so, being (d)(2)(A) does not differ same or less than all the facts (d)(4)(B), only in the respect that a to establish commission1 less serious risk of same charged....” son suffices to establish the commission of “required What is to establish commission” *5 (dX2)(A). Less serious risk of injury does any Clearly, only proof offense? of the not alone suffice. Value between and $5.00 factual elements “re- of the offense is also must be Accordingly, shown. quired” to establish “commission” of the the was not entitled to a charge Thus, Court, offense charged. for the Pre- on misdemeanor theft as a lesser included siding Judge Day Onion reasoned in v. offense of theft from the person. State, 532 302 (Tex.Cr.App.1976), S.W.2d motion for rehearing grant- is the elements of the lesser offense must be ed and the is affirmed.1 in necessarily included the elements greater, the elements are not the TEAGUE, JJ., ODOM and dissent for the same.2
reasons stated in opinion original on prior sug- But some opinions submission. gest that “facts com- required to establish MILLER, J., not participating. in means mission” as used Article CLINTON, Judge, concurring “any during in evidence offered the course of dissenting in part. the trial.” appears
It
to me that what
(which
is fundamen-
interpretation
was embraced
in
tally
dispute in this case is the import,
opinion
original
on
submission in this
meaning and correct application
case)
of Article
no-
patently
general
is
offensive to
law,
V.A.C.C.P. Does the statute “define”
tions of due course and
one
process
lesser included offenses in a manner exclu-
constant
rudiment of which is “notice.”3
1.Appellant
ground
trespass
containing
requirement
raised the one
of error
that
entry
discussed herein.
actor had “notice that
was forbid-
Id.,
den.”
at 306.
emphasis
supplied
throughout
1. All
is
3.Indeed,
opinion
quarrel
jury
writer of this
the Court’s basic
unless otherwise
indi-
a
cated.
instructions which “authorize conviction on
is,
it,
theory
alleged”
not
as I understand
bot
Day, supra,
correctly
legal
upon
it was
determined
this
See
on
tomed
fundamental.
Cum
original
(Tex.Cr.App.1979);
submission that the
in a bur-
bie v.
glary
indictment
that
the accused
553
371
“entered a
Robinson
building
open
public”
1977).
Virginia,
App.
not then
See also Jackson v.
443
307,
adequate
support
2781,
(1979).
a conviction for criminal
U.S.
99 S.Ct.
710 Moreover, 37.09 is construction Article antidote for result only palliative, violative of the constitutional specifically that must an offense be submitted as lesser “de- dictate that the accused entitled accused, included if requested by against mand the nature accusation behest submitted at I, Tex. him.” Article 10 Const.4 It objection! over a defense cannot be proposed by opinion antidote Article interpretation such an irrational original for this submission unconstitutional Legislature par- 37.09 was intended — rationale, feature of the accused be con- ticularly provision may when the object no- grounds “on insufficient harmony other strued in rationally, tice,” citing dictum contained provisions.7 and constitutional procedural Day, rehearing State’s motion Accordingly, wholeheartedly I concur supra. the fail- That dictum characterizes Judge Tom Davis premise on which allegations ure of an indictment to make essen- begins his in this case: inclusive which conviction must ingredients tial had, protect as “insufficient ultimately construction, en- least liberal through defendant,” certain... interests thereby include the constitu- compass by noting “any objec- dismisses the matter by appel- tion for defect order such waived ents lesser [is] requested lant’s in- submission of “lesser offense” latter to be a included [lesser 302, 315, charge....” 37.09, supra. cluded] meaning within n. 7.5 sub- (Opinion State, Campbell v. mission); Accord: right what of submis- 161, (Tex.Cr.App.1978) sion of instructions?6 [“the problem Whether 7.Another constitutional created one believes this constitutional provision person grand requires Day implicates jeopardy. accuse a double dictum constituting year, Only majority of an act or omission em- last the Court more, nothing see Brasfield provided braced the “same offense” test (Dis (Tex.Cr.App.1980) States, S.W.2d 288 Blockburger v. United 284 U.S. senting opinion on State’s for rehear motion (1932): S.Ct. L.Ed. ing); grand jury must find believes *6 applicable the same rule is where “[T]he every state detail of the ele factual elaborative of constitutes a violation act or transaction offense, id., (Opinion ments of motion on State’s statutory provisions the test two distinct agree rehearing), it all for seems we applied be whether there to determine minimum, that at a have the is entitled to accused one, only each whether two offenses or provision requires accusatory pleading reflect proof fact which every each and offense—not element other does not.” only “substance,” as a also as a matter of 815, McWilliams, parte 634 S.W.2d Ex Food matter of “form.” See American Plant (Tex.Cr.App.1982)(Opinion on motion Corp. 1974). (Tex.Cr.App. v. rehearing). supra, Blockburger, The Court observed gards there Paradoxically rehearing opinion fact that trial as irrelevant the “[a]t 5. overlap supra, acknowledged process may in the the due be a substantial offense; however, earlier through separate is the statu- violation that could result construction each it tory be 37.09: offense which must elements of each origi- [Emphasis absurdity this test.” (statutory) examined under “An violative [obvious process] might principles 634 S.W.2d at of basic of due au- nal.] Therefore, Arti- upon of A murder of term “facts” as used thorize the trial C, than B a conviction for the murder of rape or “mere evidence” rather cle means contraband, D, possession Day or the as the would “factual elements” dictum pro- it, The violations of due other offense. in a case included offenses have lesser cess occur are manifest.” that would from the face of not be determined 302, 313, n. 5. alleges the “facts indictment which offense;” it establish commission 36.15, provides pertinent 6. Article V.A.C.C.P. though an be a follows included offense of another tum, part: “Before the court reads his Day dic- under the jury, sides a reason- counsel for both shall have punished person convicted and be time able written instructions Blockburger. for both under they given jury.” ask that Cannon, 546 parte Ex statutory prosecution. included the charged facts here (Opinion (Tex.Cr.App.1976) committing element ‘in the course Casey see also rehearing); each sub- theft.’ This is consistent with motion ”] 37.09, uni- section of Article and assures (Tex.Cr.App.1982). reading formity within a single immediately apparent trial of what is But it is statute, is not a functional lesser theft 31.03, “consolidated” our § regardless of which an party requests words, submis- “a commits person catch that the ” sion of the issue. in- the most basic signal offense if he... “unlawfully all theft offenses: gredients of In this subsection 2 of Article to de- with intent appropriates cited submis- the owner.” prive “the provision sion as the under which relationship” er between misdemeanor parte Ex sure, To be demonstrated estab- and theft from a has been containing Cannon, supra, lished the “evidence adduced” it enough. And these essentials provides: case. That subsection theft contain some acts of is clear that is a lesser included offense con- “forbidden features of the additional jury duct,” must be found “guilty” may be verdict of general
before for such. Gant prosecutions returned in (2) charged it differs (Tex.Cr.App.1980). 606 S.W.2d that a less serious the fact an Gant, it was held that or risk the same two convicted previously accused “has been person, property, interest theft” is “a any grade or more times suffices to establish commission...” con- ‘forbidden jurisdictional element—a agree Judge proper I that “the Davis proscribed by duct’—of contemplat- relationship” between offenses both must therefore be 31.03(d)(4)(C),and provision, ed concerns elements of as such before the two offenses instead of “evidence ad- verdict of general to render a is authorized duced” at trial. Likewise, Id., n. 9. guilt.” that, Having my disagreement said the fact that (dX4)(B), 31.03(a) and Judge by comparison; Davis seems small an- stolen from property “is my to a different but because leads a human ... other” or “is stolen result, compelled I am to continue. ... a human stolen ... from or “is corpse” theft offenses “element” of is an grave,” it provision, because What Are The “Elements” Theft? prosecuted Of *7 “forbidden conduct” comprise the serves to 1.07, provides: V.T.C.A. Penal denounced. “In this code: contrast, By :jc ‡ neither constitutes appropriated (13) ‘Element of offense’ means: conduct,” culpabil- “required the “forbidden conduct; (A) the forbidden Though of theft. result” ity” “required (B) required culpability; in requirement” “jurisdictional surely result; (C) any required pled which must be cases felony some exception (D) negation clearly cases, equally it is in those proved the offense.” of the commission not an “element” Cannon, supra; parte Ex 31.02 theft. See While V.T.C.A. J., dissenting). (Roberts, supra formerly Campbell, to abolish distinctions sought of the affect- descriptive merely ac- “Value” varying acts of unlawful made between any way cannot be in now ed “property” is clear quisition personalty, it conduct” “the forbidden the 1974 characterized “elements” of that the knowingly by statute one is prosecution code can penal vary avoiding. (Indeed, strictly the actor is held
liable for the value the steals LIPPERT, he Appellant, John L. turns out have: no defense is available to who, thinking jar, one an old in Texas, Appellee. The STATE of vase.) fact a Ming takes No. 023-83. The Court has now deter repeatedly Texas, Appeals be Criminal mined a lesser included Banc. En aggravated robbery because it is and, the elements robbery Feb. depending specific theory the State trial, establishes at be evi raised proof.
dence incident to that Griffin
State,
Eldred v.
App.1979); Campbell, supra. While in
Campbell, supra, disput the issue was hotly
ed, it was (or never suggested there Griffin)
Eldred or “value” feature some thefts constitutes an addi
tional “element” allega not contained in an
tion robbery. The same rationale should here, Griffin,
apply Campbell Eldred and
overruled, for they cannot be distinguished
on this point. sum, the fact that no “value” of the (and
affected need
therefore “required establish com- of”)
mission theft from a person, does not
preclude misdemeanor theft offenses
being “included” therein. I Accordingly,
would hold that because “value” is not an theft,
element misdemeanor it is estab-
lished of “less than all the [factual required to establish the commis-
elements]
sion” of theft from a person. fundamental approach Court, taken by issue I fully concur.