# Hill v. State

> Court of Criminal Appeals of Texas · September 22, 1982 · 640 S.W.2d 879

URL: https://www.frixlaw.com/law-library/cases/9769605

## Case

- **Full name:** Calvin Arthur HILL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 22, 1982
- **Citations:** 640 S.W.2d 879; 1982 Tex. Crim. App. LEXIS 1056
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Odom, Clinton, McCormick, Davis, Dally
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CLINTON, Judge,
dissenting.
As germane here a person commits the offense of robbery if, in the course of corn-mitting theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. V.T.C.A. Penal Code, § 29.02(a)(2). 1 In Evans v. State, 606 S.W.2d 883 (Tex.Cr.App.1980), from an accepted principle of the law of fundamental error in a court’s charge, a Court Panel formulated a theory to find fundamentally defective an application paragraph that omitted “without the owner’s effective consent,” it being a component part of the element of theft which, in turn, is said to be an element of the offense of robbery. I am no longer persuaded that our Evans formulation is correct, but for reasons other than those advanced by dissenters now and earlier. See, e.g., Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.1981) and Young v. State, 621 S.W.2d 779 (Tex.Cr.App.1981). Accordingly, I write separately to set forth my views about the narrow problem presented in the instant cause.
According to Article 36.14, V.A.C.C.P., in a jury trial on the merits of an indictment the judge of any trial court of record shall deliver to the jury “a written charge distinctly setting forth the law applicable to the case...” A general rule of thumb is that such a charge should authorize and direct the jury to resolve every ultimate factual issue tendered by pleadings and raised by evidence. Sattiewhite v. State, 600 S.W.2d 277, 284-285 (Tex.Cr.App.1980); Wilson v. State, 625 S.W.2d 331, 335-336 (Tex.Cr.App.1981) (Concurring Opinion). From that general rule it follows that abstract definitions and portions of a statute that are not material to issues made by the indictment and evidence should not be reproduced in a charge of the court, for that practice, as the Court has admonished, “at best is useless and at worst may confuse and mislead the jury and, therefore, preju *885 dice a defendant,” Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr.App.1976); Toler v. State, 546 S.W.2d 290, 293-294 (Tex.Cr.App.1977).
Turning to the indictment in the case at bar, one observes that an essential element of the offense of robbery was alleged generally — that appellant acted “while in the course of committing theft of property.” That element embraces conduct which occurs “in an attempt to commit, during the commission, or in immediate flight ” thereafter, as defined by V.T.C.A. Penal Code, § 29.01(1). 2 However, according to the Court of Appeals, the robber brandished a knife and forced complainant to open cash registers of a convenience store and thereby accomplished a completed theft. Thus, though the indictment broadly encompassed every manner of being in “the course of committing theft,” the proof showed but one. Under the general rule of thumb and prior admonitions from the Court, both mentioned above, the only part of the legal definition of “in the course of committing theft” applicable to the facts of this case is conduct of appellant occurring “during the commission of theft.”
This Court has often pointed out that an essential element of the offense of robbery which must be pled and proven is that the offense was committed “in the course of committing theft,” and we did so again in Evans, at 882. A consideration for allowing such a broad submission of every manner by which conduct may occur in the course of committing theft must be to permit the prosecution to succeed if any one manner is supported by evidence. See Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976). However, when the proof is to the effect that theft was actually committed surely it is proper to limit deliberations by the jury to the allegations in the indictment which are supported by the evidence. See Sandig v. State, 580 S.W.2d 584, 586 (Tex.Cr.App.1979).
Y.T.C.A. Penal Code, § 31.03(a) prescribes elements of the offense of theft, viz: “A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.” 3 The application paragraph in the charge of the court covered that complete statutory definition of theft by directing the jury to find if appellant “with intent to deprive Paula Cagle, the owner, of her personal property, did unlawfully appropriate from Paula Ca-gle said property belonging to Paula Cagle ...,” thereby isolating the related element of robbery to conduct occurring during the commission of theft. The remaining clauses and phrases in the paragraph implicate other elements of robbery and of aggravated robbery as alleged in the indictment. 4
In sum, when it came to applying the law of robbery to the facts of the case, the charge of the trial court required the jury to find every applicable statutorily prescribed element of robbery tendered by the indictment and raised by the evidence adduced by the State. What it did not require in haec verba was that the jury find what the majority denominates “this sub-element” — “without the owner’s effective consent” — and therein lies its fundamental defect, according to the majority.
The rationale for certain rules formulated by the Court for alleging and proving an *886 aggravated robbery vis a vis elements of the underlying theft attempted, committed or fled from is that robbery is an assaultive offense under the new penal code rather than an aggravated form of theft under the old. See Ex parte Lucas, 574 S.W.2d 162 (Tex.Cr.App.1978).
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, 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” 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.
I respectfully dissent.
. Though the instant case is one of aggravated robbery, there is no problem regarding the applicable aggravating feature of using or exhibiting a deadly weapon. Id., § 29.03(a)(2). So resolution of the issue that is troubling the Court will be simplified by pretermitting further discussion of the element of aggravation.
. All emphasis is mine unless otherwise indicated.
. It is certainly true that the Court has engraft-ed onto the straight forward statement of the offense of theft a requirement that a theft indictment allege a manner of appropriation that comports with § 31.03(b)(1) or (2). See Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978).
. “... and that the defendant ... in so doing, and with intent to obtain or maintain control of said property, then and there intentionally or knowingly threatened or placed said Paula Ca-gle in fear of imminent bodily injury or death ... exhibited a deadly weapon, namely, a knife, then you will find the defendant guilty of the offense of aggravated robbery, as charged in the indictment... ” Note that while “using and exhibiting” the knife had been alleged, the charge properly omitted “using” since the evidence was that it had been only exhibited— brandished.
. By definition in a theft case consent is not effective if induced by coercion, and coercion means “a threat, however, communicated, ... to inflict bodily injury in the future on the person threatened or another,” V.T.C.A. Penal Code, § 31.01(1)(B) and (4)(A).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769605. Public record. Not legal advice.