Sattiewhite v. State

PHILLIPS, Judge,

dissenting.

I congratulate Judge Clinton on his thorough research of the applicable caselaw. He has not left a case unturned. I earnestly submit, however, that under the guise of interpreting the rule in Moore the majority simply misapplies that rule. I submit that the rule was intended to mean and in fact means exactly what it says: that it is fundamental error to authorize a conviction on any state of facts other than those alleged in the indictment.

This Court in Moore was expressly concerned that the jury was authorized, under the court’s charge, to convict the defendant for receiving stolen cattle from someone known, rather than from “some party to the grand jurors unknown,” as alleged in the indictment. Although there was evidence adduced that the defendant received the cattle from his brother, the court did not rely on this fact to show that the defendant had been harmed. Rather, the Court in deciding the case clearly set forth the error as fundamental, and rested its decision on that basis. To illustrate, I quote extensively from Moore:

It will be observed [the charge] does not comply with the count charging the reception of the cattle from an unknown owner, but it left the jury to find him guilty if he received it from any one, known or unknown. We think this charge is fundamentally wrong.

A conviction cannot be authorized for an offense not set forth in the indictment. If the grand jury did not know, or could not ascertain by reasonable diligence, from whom the cattle were received, it is proper to make such allegation, but that is the case charged in the indictment. In order to obtain a conviction under such allegations it must be shown and the charge must limit the consideration of the jury to such state of case. Under the court’s charge appellant could have been convicted for receiving the cattle from any one, known or unknown .

Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.

It is error of a fundamental nature to authorize a conviction for any other offense than that charged, and this is true whether there was an exception reserved or not to the action of the court in so charging the jury. Grant v. State, 59 Tex.Cr.R. 123 , 127 S.W. 173 . [emphasis added]

This language in Moore fails to support the majority’s qualified version of the rule— that a conviction is prohibited on any state of facts “of which the accused has not been effectively notified.”

I further submit that, other than in May v. State, 146 Tex.Cr.R. 115 , 171 S.W.2d 488 (1943), this Court without exception has read Moore to stand for the basic proposition that the court in charging the jury, is *288 bound by the allegations of the indictment. In all cases in which the Moore rule has been applied this Court has been concerned with the enlargement of the defendant’s criminal responsibility beyond what is specifically alleged in the indictment. See e. g. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978); Morter v. State, 551 S.W.2d 715 (Tex.Cr.App.1977); Garza v. State, 162 Tex.Cr.R. 655 , 288 S.W.2d 785 (Tex.Cr.App.1956). In none of these cases has this Court looked for harm, and for good reason — it is the essence of fundamental error that harm need not be shown.

Viewing the Moore rule for what it is, the instant case clearly falls within the ambit of that rule. In principle and in fact, this case is indistinguishable from Moore and the above-cited cases that have relied on Moore. As in those cases, the court’s charge in this case authorized the jury to convict appellant on a set of facts other than those alleged in the indictment. It also should be remembered that the State was bound to prove those allegations under our well-established caselaw. See Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975), and the other cases cited in my opinion on original submission.

In fashioning the new rule that it does today, the majority is arbitrarily drawing the line on fundamental error in the court’s charge. The new rule conveniently includes within its sweep recent fundamental error cases, yet, without a logical basis, excludes the instant case. As an example of future problems that will be incurred in applying this new rule, I point to Garcia v. State, 595 S.W.2d 533 (Tex.Cr.App.1980). The majority distinguishes that case from the instant case, yet the cases are indistinguishable. The indictments in both cases unnecessarily overallege the element “in the course of committing theft,” thus limiting, as a factual matter, what the court can charge the jury with respect to the offense. The charges in both cases allege all the essential elements of the offense, and confine themselves to the legal theory set forth in V.T. C.A. Penal Code, § 29.03(a)(2). Both charges enlarge the defendant’s criminal responsibility by failing to conform to the limitations imposed by the unnecessary allegations. Yet under the majority view Garcia falls within the new rule and this case does not. This plainly is inconsistent.

Finally, even assuming that the new rule is based on an arguable interpretation of Moore and its successors, I do not believe it will adequately protect the rights of defendants. The new rule requires, among other things, that the State produce evidence "that proves every factual allegation made in the charging instrument.” The new rule fails to require that the evidence exclude any set of facts other than that alleged in the indictment. What if the'jury is presented with conflicting evidence, some of which comports with the allegations of the indictment and some of which does not? Under the new rule a charge that allowed the jury to convict the defendant for acts not alleged in the indictment would not be fundamentally defective. A lawless verdict, the overriding fear of Moore and its successors, would result.

The opinion on original submission correctly applied the Moore rule as that rule consistently has been applied by this Court. The rule represents sound law and should be followed. If the members of the majority desire to do away with the rule, however, I suggest to them that Moore must be overruled.

I respectfully dissent.