# Woods v. State > Court of Criminal Appeals of Texas · July 6, 1983 · 653 S.W.2d 1 URL: https://www.frixlaw.com/law-library/cases/9684939 ## Case - **Full name:** Robert Wayne WOODS, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** July 6, 1983 - **Citations:** 653 S.W.2d 1; 1983 Tex. Crim. App. LEXIS 1075 - **Precedential status:** Published - **Opinion:** On rehearing by Davis - **Judges:** Odom, Onion, Roberts, McCormick, Davis, Teague - **Cited by:** 42 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/9684939 ## How later opinions describe it (automated extraction) - holding circumstantial evidence sufficient to show robbery committed using and exhibiting pistol when complainant did not see gun but felt it poked into his side and defendant stated he had gun - holding litigant must object to trial court comments ## Opinion text ON STATE’S MOTION FOR REHEARING W.C. DAVIS, Judge. Upon original submission this cause was reversed for failure of the court’s charge, which required that the jury find in appellant’s conduct the elements of theft rather than that the conduct occurred “in the course of committing theft”, to include the requirement that the jury further find a lack of the complainant’s effective consent to appellant’s appropriation of the complainant’s property. The rule requiring reversal of the cause was set out in Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980), and reiterated in Williams v. State, 622 S.W.2d 95 (Tex.Cr. App.1981), and Hill v. State, 640 S.W.2d 879 (Tex.Cr.App.1982). The State requests that we consider this rule, and their motion for leave to file motion for rehearing was granted for that purpose. In his dissenting opinion in Hill, supra, Judge Clinton wrote: “Into the new penal code the Court has imported from the old robbery statutes the proposition that when ‘the owner parts with his property because of an assault, fear or violence his consent or want' of consent is irrelevant..5 Branch’s Annotated Penal Code (2nd Ed.) § 2592. Reese v. State [ 531 S.W.2d 638 (Tex.Cr.App.1976) ], supra, at 641. Furthermore, we are informed by the Practice Commentary following § 29.02 that ‘the violence used or threatened must be for the purpose of compelling acquiescence to the theft or of preventing or overcoming resistance to the theft.’ Thus, inherent in the statutory requirement that an accused be shown to have intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death is that an owner’s lack of consent to a forcible taking of his property is a nonissue in a robbery case. Stated another way, a taking ‘without the owner’s effective consent’ never becomes a disputed fact issue when it is alleged, proven and found that the owner was threatened or placed in fear of imminent bodily injury or death intentionally or knowingly by an accused in the course of the taking.5 “For these reasons the charge of the court in the case at bar does not present fundamental error — indeed, it is not defective at all in the particular under examination. Therefore, there is no need to argue whether the charge is to be read as a whole, what makes sense about a jury being able to refer back to one abstract definition but not another or whether to brush the whole dispute aside on grounds that from the record it does not appear that error, if any, deprived appellant of a fair trial or injured his rights. “Evans and its progeny should be overruled, even if ‘without the owner’s effective consent’ is somehow a ‘sub-element’ *5 of robbery, because we failed to perceive that requiring a jury to find that appellant ‘then and there intentionally and knowingly threatened or placed said Paula Cagle in fear of imminent bodily injury or death’ rendered a factual finding to her lack of effective consent immaterial.” “5 By definition in a theft case consent is not effective if induced by coercion, and coercion means ‘a threat, however, communicated, ... 640 S.W.2d 886 . We now find this argument persuasive, and adopt Judge Clinton’s dissenting opinion in Hill as the opinion of the Court in this cause. Evans, Williams and Hill are overruled, and we hold that, where it is alleged, proven, and found that a defendant intentionally or knowingly placed the owner in fear of imminent bodily injury or death in the course of the taking, a charge is not defective for failing to require that the jury separately find the taking to have been without the effective consent of the owner. The ground of error is now overruled. Appellant’s further contentions in this cause relate to statements by the court and by a witness which appellant contends are prejudicial and constituted reversible error. The first of these contentions involves a non-responsive answer by a witness: “Q. Did you find anything else in the car, please? “A. Yes, sir. We found a briefcase in the trunk. It contained numerous items of tools, screwdrivers, wrenches. “MR. TOBIAS: May I have this marked— “A. In other words, it was a special tool kit that was — a person who was a locksmith or stole vehicles, automobiles, would use. “MR. PINK: At this time, Your Honor, we’d like to object. That is a conclusion. We feel it’s improper and ask the jury to disregard. “THE COURT: Yes. You will not consider that last remark, ladies and gentlemen of the jury, about its potential use. “MR. PINK: Anyhow for the record we feel the damage has already been done, and we would ask for a mistrial, for the record. “THE COURT: Overruled.” An instruction to disregard improper evidence is generally sufficient to cure error in its admission. Furtick v. State, 592 S.W.2d 616 (Tex.Cr.App.1980). We do not find the testimony recited to have been so prejudicial as to have introduced incurable error into the trial. The ground of error is overruled. Appellant next contends the court erred by commenting on the weight of the evidence during the State’s argument to the jury. State’s counsel paraphrased an argument made by counsel for appellant, and appellant’s counsel objected: “[Prosecutor]: You should find the person who robbed Mr. Cox not guilty because he didn’t see a pistol. He only heard the words of the robber say, ‘I’ve got a gun.’ “MR. PINK: Your Honor, at this time he’s misquoting. I said they couldn’t find him guilty of aggravated robbery. “THE COURT: The substance was there. I will overrule.” We note that “the substance was there” appears to refer to appellant’s counsel’s argument, not to the evidence; we further note that no objection was taken to the court’s remark. The ground of error is overruled. Appellant contends finally that the court erred in commenting on “deleted counts in one of the indictments,” 1 citing the following colloquy: “(The following occurred at the bench out of the hearing of the jury:) *6 “MR. TOBIAS: As the record will reflect, we did abandon the enhancement count on the aggravated robbery charge. “THE COURT: Oh, yes. “(The following occurred within the hearing of the jury:) “THE COURT: You may present by reading to the jury count number two of the indictment which has a count number two, such count having been deleted from Cause No. — whatever the other cause is. “MR. TOBIAS: The Court did say I could read this, is that correct? “THE COURT: No. I think that is deleted. “MR. TOBIAS: Even though the proof will show that? “THE COURT: Well, if the proof shows that, that’s all well and good, but as far as the indictment is concerned, we have changed that. “MR. TOBIAS: If the proof is going to show it? “THE COURT: Proof is something else. If it does, all well and good. “MR. TOBIAS: Then may I read it? “MR. PINK: At this time may I respectfully object to this conversation in front of the jury? “THE COURT: All right. “MR. TOBIAS: ‘In the name and by — ’ “THE COURT: Wait a minute, now. Let’s see if we are together. Don’t read it out of the indictment. His name has been changed— “MR. TOBIAS: Yes, sir. “THE COURT: —and we will read it— if you read anything, read it as changed. “MR. TOBIAS: All right, sir. “Follow me? “MR. PINK: Your Honor, may we renew our objection to the comments made? “THE COURT: All right. “MR. TOBIAS: May it please the Court. “THE COURT: Surely.” We note that appellant did not obtain a ruling upon his objections; neither was a ground stated for the objections. The ground upon which appellant now relies, that the remarks of the court indicated knowledge of criminal conduct by appellant which was not before the jury, is presented for the first time upon appeal. Nothing is presented for review. Crocker v. State, 573 S.W.2d 190, 205 (Tex.Cr.App.1978). Appellant’s contention that the evidence was insufficient to support the verdict was correctly answered by the panel opinion. The State’s motion for rehearing is granted; the judgment is now affirmed. . Appellánt was tried jointly for the instant offense and for attempted capital murder of a police officer. The attempt conviction was affirmed in a per curiam opinion, 632 S.W.2d 372 (Tex.Cr.App.1982), on May 12, 1982, and rehearing was denied on June 3, 1982. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684939. Public record. Not legal advice.