# McElroy v. State > Court of Criminal Appeals of Texas · June 4, 1975 · 528 S.W.2d 831 URL: https://www.frixlaw.com/law-library/cases/9647287 ## Case - **Full name:** Maurice McELROY, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 4, 1975 - **Citations:** 528 S.W.2d 831; 1975 Tex. Crim. App. LEXIS 992 - **Precedential status:** Published - **Opinion:** Dissent by Roberts - **Judges:** Brown, Douglas, Roberts, Odom - **Cited by:** 47 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/9647287 ## Opinion text ROBERTS, Judge (dissenting). In his Motion for Rehearing, appellant again attacks the sufficiency of the indictment. The majority overrule his motion in a written opinion, but our attention has been directed to the recent case of Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975) which would appear to me to dictate a result different from that reached by us on original submission. Appellant was convicted of aggravated assault under the new Penal Code. His punishment was assessed by the jury at two years’ imprisonment. Appellant and four companions were in an apartment complex parking lot, sitting on the back of a pickup, drinking. David Hale arrived and appellant and two companions got in Hale’s car. Gary Eoff approached the car with the drinks and ice and asked Hale where he wanted them. Appellant said, “Leave me alone.” Eoff again asked Hale where he wanted to put the ice and drinks and again appellant said, “Leave me alone.” Eoff told appellant he was not talking to him. Hale and another companion placed the ice on the front floorboard, while a third man put the drinks in the back seat. Appellant again told Eoff, “Leave me alone.” While Eoff was handing the ice and beverages to the men in the car, appellant got out and placed his drink on the top of the car. Appellant then struck at Eoff twice with a knife. Eoff ran from appellant and discovered that his shirt was torn and that his chest was cut. In his Motion for Rehearing, appellant vigorously reurges his contention that the trial court erred in overruling his motion to quash the indictment. The pertinent portions of the indictment read as follows: “. . . did then and there unlawfully, intentionally and knowingly use a deadly weapon, to-wit: a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, and did then and there cause bodily injury to Gary Allen Eoff, by cutting him with said knife.” Appellant argues that the requisite mental culpability for assault was not alleged in the indictment. He contends that alleging the unlawful use of a deadly weapon is not sufficient. An assault is defined as follows: “A person commits an offense if he intentionally, knowingly, or recklessly causes bodily injury to another, . . . ” V.T. C.A., Penal Code, Sec. 22.01(a)(1). To be guilty of aggravated assault, “A person commits an offense if he commits assault as defined in Section 22.01 of this code and he . uses a deadly weapon.” V.T.C.A., Penal Code, Sec. 22.-02(a)(3). The indictment properly alleged the use of a deadly weapon, V.T.C.A., Penal Code, Sec. 1.07(a)(ll)(B), but did not include the requisite allegations of culpability for an assault. The example is made of a surgeon who uses a scalpel, which, in the manner of its use and intended use, is capable of causing *837 death or serious bodily injury. Yet, should his patient suffer serious bodily injury on the operating table, the surgeon would not be guilty of aggravated assault since he did not “intentionally, knowingly, or recklessly” cause the injury. Yet the indictment in the instant case would support a conviction of the surgeon for aggravated assault upon proof of such facts. The recent case of Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975) is squarely on point. It involved a conviction for aggravated robbery wherein the indictment alleged as follows: “. . . on or about the 5TH day of JANUARY, A.D., 1974, ROGER WILLIAMS, hereinafter called defendant, did then and there intentionally and knowingly use and exhibit a deadly weapon namely: A PISTOL, to DALE STEVENSON, hereinafter called complainant, while the same defendant was in the act of committing theft of property, namely: A WALLET, from said complainant, the owner of said property, without the effective consent of the said complainant, and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property; . . . ” V.T.C.A., Penal Code, Sec. 29.03 provides that a person must first commit robbery before he can be convicted of aggravated robbery. And Sec. 29.02 of the new Penal Code defines “robbery” as follows: “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he: “(1) intentionally, knowingly, or recklessly causes bodily injury to another; or “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” It will be seen that the indictment in Williams properly alleged the commission of a theft and the use of a deadly weapon, but omitted to allege the intentional or knowing threats or causation of bodily injury required for robbery. This defect required reversal and dismissal of the indictment. Likewise, in the case at bar, the indictment omits to allege all of the constituent elements of the assault which is claimed to be aggravated. Nor does the clause, “. . .a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, .”, which distinguishes the instant case from Williams, supra, provide the needed allegations of culpability. The clause obviously relates to the type of weapon used. Moreover, the “manner of its use and intended use” refers only to the capabilities of the weapon, not to the actual use to which it was put. For examples of indictments properly alleging aggravated assault, see Morrison and Blackwell, New Penal Code Forms, Sec. 22.02A, p. 22 and 2 Texas Ann.Penal Stat. with Forms (Branch’s 3rd Ed.), Sec. 22.02, p. 186. For the foregoing reasons, I would grant appellant’s Motion for Rehearing and order the judgment reversed and the indictment dismissed. ODOM, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9647287. Public record. Not legal advice.