*2 by to 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 ag- 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. Appellant 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 court’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, that: 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 Articles 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 presented 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 Court 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 caused 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 causes 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 a 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 that 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 recent 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 Woodley, 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 Tar- 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. The 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 follows: 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 omitting 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- elements 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; “fraudulent” 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 or 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 charge 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 opinion 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 part 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 a 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. 591 S.W.2d 820 ror. Davis, the by Judge Tom Cr.App.1979), State, (Tex. charg any language In Daniel v. 486 944 charge S.W.2d did not include Roberts, Judge speaking for of death or serious bodi Cr.App.1972), ing that the threat Court, requisite to the verdict ly injury wrote: 558 things could one do all of these without aggravated rape. apply This was para intending the law to the facts. In the next to rob?

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 not 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 also 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. where 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