# Evans v. State

> Court of Criminal Appeals of Texas · July 16, 1980 · 601 S.W.2d 943

URL: https://www.frixlaw.com/law-library/cases/9645228

## Case

- **Full name:** Charles EVANS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 16, 1980
- **Citations:** 601 S.W.2d 943; 1980 Tex. Crim. App. LEXIS 1305
- **Precedential status:** Published
- **Opinion:** Concurrence by Onion
- **Judges:** Phillips, Onion, Douglas, Odom
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9645228

## Opinion text

ONION, Presiding Judge,
concurring.
This appeal is from a conviction for capital murder committed during the course of *948 robbery. See V.T.C.A., Penal Code Sec. 19.03. Punishment was assessed at death in view of the jury’s affirmative answers to special issues nos. 1 and 2 submitted under Article 37.071(b)(1) and (2), V.A.C.C.P.
At the outset we are confronted with appellant’s contention that the trial court erred in overruling his timely presented motion to quash the indictment because it failed to allege the name of the robbery victim which was essential as part of the aggravation and to elevate the charged offense from murder (V.T.C.A., Penal Code Sec. 19.02) to capital murder (V.T.C.A., Penal Code Sec. 19.03). We have only recently held that overruling a timely presented motion to quash a capital murder indictment where the robbery victim was not alleged therein was reversible error. Brasfield v. State, 600 S.W.2d 288 (Opinion on State’s Motion for Rehearing, 1980). See also King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980).
I would adhere to Brasfield and reverse this conviction on that ground alone. I would not reach the question of whether the trial court also erred in not submitting the third special issue under Article 37.071(b)(3), V.A.C.C.P., or whether the appellant properly preserved such error under Articles 36.14 and 36.15, V.A.C.C.P. in effect at the time of appellant’s trial.
For the reasons stated, I concur.
ODOM, J., joins in this concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9645228. Public record. Not legal advice.