*1 305 Capone or reck- ever was.” The robbers then “(1) intentionally, knowingly, made another; bodily injury to lie on the floor in front lessly causes Schiro of a confec- tionary They counter. tied his hands be- put chair over his hind him a head intentionally knowingly threat- “(2) they before left. in fear of immi- places ens or another injury or death. bodily nent he testified that was afraid the Schiro is a “(b) under this section An offense him, robbers would or kill but that degree.” of the second they anyone. did not hurt He further testi- gave he the robbers his money fied that V.T.C.A., pro- Section they guns. because exhibited vides: appellant placed offense if he The record is clear that commits an robbery as in fear of life complainant commits defined Section his dis- code, playing exhibiting and he: gun. 29.02 of this a There is no evidence anybody whatsoever that sus- bodily injury to an- causes serious tained bodily injury during a the robbery. other; or jury charge While the is not a model of deadly weapon. exhibits a uses or clarity, it any jury could not have misled “(b) offense under this section is a An under the facts of this case. No harm is degree.” of the first Moreover, shown. “. -by failing to substance, alleged, in object jury charge”, appellant intentionally knowingly appellant injected have “. proc- into the trial placed complainant threatened the very type objec- ess of error which the bodily injury imminent and death fear of requirement designed to avoid.” exhibiting pistol while in the using and Kibbe, 145, 157, Henderson v. 431 U.S. committing theft. The court’s course of (1977) S.Ct. L.Ed.2d appel- to convict J., (Burger, concurring). aggravated robbery upon finding lant of No reversible error is judg- shown. The allegations in the indictment were that the ment should be affirmed. true, and further authorized a conviction upon finding for the same offense bodily injury had caused serious while the course of commit- A fair
ting theft. evaluation of this
however, requires an evaluation in the con-
text of the entire record. trial shows Schiro, complainant, Paul owned a
that the SHAW, Appellant, Thomas Walter parlor in Houston. On pool hall and domino 12, 1975, appellant and two other January the establishment and robbed men entered Texas, Appellee. The STATE of gunpoint. several customers at Schiro No. 53783. the robbers made the customers lie While floor, Appeals ordered Schiro Court of Criminal Texas. on the building. Appel- the front of the come to Nov. “casing” told him that he had been lant pre- during establishment the three months
ceding robbery. he
Although appellant pistol, had his own caliber revolver behind
found Schiro’s .38 waiving counter started it in the
air, A1 saying that he was “badder than *2 199; Tex.Cr.App., 522 S.W.2d
Morter v. Tex.Cr.App., 551 S.W.2d 715; 893; 548 S.W.2d Windham Tex.Cr.App., 530 S.W.2d charged that on or about Jasper Texas, June County, “did then and there enter a building the effective consent George of Gee, owner, and to commit and committed theft ...” (Emphasis added). Code, 30.02, Penal Burgla-
V.T.C.A. Sec. ry, provides pertinent parts: in its if, commits an offense with- out the effective consent of the he: habitation, enters a building or a (or any portion building) of a not then open public, with intent to com- theft; mit a or or concealed, remains with intent to theft, commit a or in a habitation; or (3) enters a building or habitation and commits or attempts to commit a felo- ny or theft.” above, From the it is clear that Section 30.02(a), supra, provides for three separate ways burglary in which the offense of See, comparison, be committed. for Ex Golden, Jasper, appellant. Bob for Joe Cannon, parte opinion on motion for rehear- ing, 266, 271, p. 546 S.W.2d at Martin, Atty. A. Dist. and Monte D. Bill seq. charged et Lawlis, Atty., Jasper, Jim D. Asst. Dist. with as the offense is Austin, Vollers, Atty., for the State. State’s However, 30.02(a)(3), supra. in its jury stating after the provisions of Sec- OPINION 30.02(a)(1), (2), (3), supra, giv- GREEN, Commissioner. ing the definitions of certain terms used in jury appellant In a trial before section, applied only court building. of V.T. convicted (a)(1), evidence, as stated in supra, to the as 30.02. Punishment C.A. Sec. twenty years a fine of was assessed bearing “Now in mind the foregoing in- ten thousand dollars. structions, believe from the evi- doubt, appellate beyond record discloses A review of the a reasonable Shaw, error in the court’s to defendant Thomas Walter fundamental June, guilt stage, day at the which error we about the 23rd justice. County Jasper, Texas, in the interest of consider State should V.A.C.C.P.; indictment, Harris did then Sec. Art. result, fundamental error effective consent there without thereof, enter a Gee, judgment owner must be reversed which open there then and the case remanded. Mitchell v. Tex. theft, with public, Cr.App., 543 S.W.2d Davis v. and there to obtain intent then with (1977). wit: unlawfully from property *3 It is ordered. so consent of effective the and with property, owner of said the Gee approved by the Court. Opinion of said said owner deprive the intent defendant will find the you property, DOUGLAS, dissenting. Judge, and so the offense of guilty verdict, do not so should be affirmed. The you but if conviction say by your doubt believe, proof have a reasonable shows that the entered the you or if defendant thereof, acquit the will and committed theft. The indict- ” Guilty.’ by your verdict ‘Not say alleged ment “did then and there enter a without the effective court, State, the trial supra, v. In Morter consent of facts, to the allowed in applying to commit and commit- that the defend- if it found jury to convict ” theft. . ted proscribed conduct committed other ant alleged in the not statute but applicable if jury ap- The court instructed the this to be funda- holding In indictment. building with pellant entered the judgment must for which the mental error guilty burglary, theft to find him commit reversed, from Dow- quoted this Court be guilty. to find him not otherwise 5, as State, Tex.Cr.App., 537 S.W.2d den objection charge. There was no to the alleging “attempted to com- “ that a conviction ‘It is fundamental theft” included “intent mit and committed charge stand unless the cannot an offense theft” which was the basis of the to find a defendant jury. to the court’s instruction constituting that only for guilty conduct shows that (citation); offense caught the officers while he was in the (citations); and the evi- conduct such committing burglary. process (cita- showed such conduct at trial added).” tions).’ (Emphasis 36.19, V.A.C.C.P., provides that Article there is error in the instruction in the State, Long v. supra; also should not be re- charge the conviction Ross v. unless the error was calculated to versed S.W.2d There rights of a defendant. charge fundamentally defec injury present such case. was no authorizes a conviction erroneously if it tive charged in the indict theory not only on Peoples v. supra;
ment. Morter supra; Ross v. supra; Long v. al Although the indictment supra. for in subsection
leged did supra,
(a)(3) of Section of that subsection apply the law
facts; instead, provid law as applied it (a)(1), supra, providing in subsection
ed alleged in the indict burglary not
a form only a conviction It thus authorized
ment. alleged. As a theory burglary not