Bignall v. State

MeCORMICK, Presiding Judge,

dissenting.

Pluck! Pluck! Pluck! Pluck! Last year, in Ramos v. State, 865 S.W.2d 463, 464-65 (Tex.Cr.App.1993), we reaffirmed the rule set out in Godsey v. State, 719 S.W.2d 578, 584 (Tex.Cr.App.1986), that evidence should not be plucked out of the record and examined in a vacuum in a lesser included offense analysis. In Ramos , we held the State’s evidence and a single statement in the defendant’s testimony, viewed in the context of the entire record and the defendant’s factual theory at trial that he committed no offense, were insufficient to raise a lesser included offense. Id., 865 S.W.2d at 465 . I would hold that under Ramos appellant was not entitled to a charge on the offense of theft.

The majority says the Court of Appeals misconstrued our caselaw and erroneously focused solely on appellant’s testimony that he committed no offense. See Bignall v. State, 852 S.W.2d 682, 685 (Tex.App.—Houston [14th Dist.] 1993). I agree, because if evidence from any source raises a lesser included offense, the trial court should charge the jury on that offense. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Cr.App.1993). But, the majority also concludes the single statement in the testimony of appellant and his other witnesses that “no one had a gun that day,” when considered with the State’s evidence, raised the lesser included offense of theft. 1

I disagree. The State’s evidence proved appellant’s participation in an aggravated robbery as a party dining which a gun was used. The State presented other evidence that the police did not find the gun shortly after the commission of the offense. At most, the State’s evidence raised a fact issue on whether appellant and his companions still had the gun shortly after the commission of the offense. This evidence does not negate the presence of a gun during the commission of the offense.

The majority also concludes evidence negating the presence of a gun was positively and affirmatively presented from several sources. I agree with the majority that the *26 testimony of Connelly, Taylor and appellant that “no one had a gun that day” arguably could negate the presence of a gun during the commission of the offense. But, the issue is whether there is any evidence from any source that if appellant is guilty, he is guilty only of theft.

The testimony of appellant and his witnesses that “no one had a gun that day” was presented by appellant in the context of his defense that he committed no offense. According to the defensive testimony, Taylor and appellant were urinating on the side of the building when Davis went inside the store and took the beer. Taylor and appellant then went inside the store and the manager asked them to leave when he found out Taylor and appellant were not going to pay for the beer Davis had just taken. Of course, Davis did not testify.

Based on the entire record and appellant’s factual theory at trial, the defensive testimony, while possibly raising a fact issue on whether Davis was guilty only of theft, raised no fact issue on whether appellant was guilty only of theft. See Ramos, 865 S.W.2d at 465 . Because appellant and his witnesses all said Davis was guilty and appellant was innocent, whether or not a gun was used during the commission of the offense is irrelevant on the issue of whether appellant was entitled to a jury instruction on theft.

Because the majority plucks the defensive testimony that “no one had a gun that day” out of the record, and examines it in a vacuum to conclude appellant was entitled to a jury charge on theft, I dissent.

. The majority opinion references the testimony of Connelly and Taylor as “accomplice witness testimony." However, the record reflects they testified only for the defense.