Schmidt V. State, 659 S.W.2D 420 (Tex. Crim. App. 1983)

Schmidt v. State, 659 S.W.2d 420 (Tex. Crim. App. 1983)

No. 63,779

COURT OF CRIMINAL APPEALS OF TEXAS

November 10, 1982

JUDGES: day of July, 1977, in Harris County, Texas, as En Banc. Wendall A. Odom. McCormick, charged in Count One of the indictment, the Judge, dissents. Sam Houston Clinton, Judge, defendant, Keith Wayne Schmidt, with intent to dissents. Dally, Judge, and W. C. Davis, deprive Grady Steeples, the owner, of his Judge, join. property, belonging to said owner, did unlawfully appropriate or unlawfully attempt to OPINION BY: appropriate from Grady Steeples said property ODOM belonging to Grady Steeples, and that the defendant, in so doing, and with intent to OPINION: obtain or maintain control of said property then and there intentionally or knowingly threatened This is an appeal from a conviction of or placed said owner in fear of imminent bodily three counts of aggravated robbery as set out injury or death, and that the defendant used or in the indictment. Punishment was assessed exhibited a deadly weapon, to wit, a firearm, by the trial court at 35 years for each of counts then you will find defendant guilty of one and two, and 65 years for count three, all aggravated robbery as charged in Count One sentences to run concurrently. of the indictment. Omitting the formal portions, the first count "Unless you so find beyond a reasonable of the indictment in the instant case alleges doubt, or if you have a reasonable doubt that appellant: thereof, you will acquit the defendant of aggravated robbery as charged in Count One "on or about July 12, 1977, did then and of the indictment." there unlawfully **** while in the course of committing theft of property owned by GRADY STEEPLES, hereafter styled the Complainant, The charge under the second and third counts and with intent to obtain and maintain control was substantially the same except for the of the property, intentionally and knowingly dates and victims. threaten and place the Complainant in fear of This case is controlled by Evans v. State, imminent bodily injury and death, by using and 606 S.W.2d 880 (TEX. CRIM. APP. 1980), and exhibiting a deadly weapon, namely, a Hill v. State, 640 S.W.2d 879 (TEX. CRIM. firearm." APP. 1982), (pending on rehearing). In Evans this Court stated an essential element of the The second and third counts alleged the offense of aggravated robbery, which must be offense in essentially the same terms, except pled and proven, is that the offense was for different dates and different victims. committed "in the course of committing theft." (Cases cited therein). In applying the law to the facts of the case, the court charged the jury as follows: In the present case the court, in the definitional portion of the charge, set out the "Now if you find from the evidence beyond elements of theft and the element "in the a reasonable doubt that on or about the 12th Page 2 Schmidt v. State, 659 S.W.2d 420 (Tex. Crim. App. 1983) course of committing theft." When both are McCormick, Judge, dissents. defined, it is sufficient to charge the jury that it must find that the offense occurred "while in DISSENT BY: the course of committing theft" in order to CLINTON convict. Evans, supra. If "while in the course of committing theft" is omitted from the portion of DISSENT: the charge applying the law to the facts, then the jury must be required to find all of the SAM HOUSTON CLINTON, Judge, elements of theft, which must be set out in the dissenting. paragraph applying the law to the facts. Hill, supra, and cases cited therein. For the reasons stated in my dissenting opinion in Hill v. State, 640 S.W.2d 879 (TEX. In the present case the charge, in the CRIM. APP. 1982), I believe that the paragraph applying the law to the facts omitted application paragraph in the charge in the an element of theft, "without the owner's instant case fairly required the jury to consider effective consent," and also omitted "in the all elements of the offense of aggravated course of committing theft." They are set out in robbery in order to find the guilt of appellant. the definitional portion of the charge only. The present majority continues to adhere to When a trial court charges a jury on the Evans v. State, 606 S.W.2d 880 (TEX. CRIM. component parts of an element of the offense APP. 1980), and no doubt will do so in every rather than the element itself, the charge must similarly situated cause. To dissent to each require the jury to find all of the parts of that such disposition in the immediate future is a element in order to convict. The jury charge in futile gesture. For now, this is the last one from the present case did not do so. Therefore it is the writer. fundamentally defective. Evans, supra. I respectfully dissent. Accordingly, the judgment is reversed and the cause remanded. Dally, Judge, and W. C. Davis, Judge, join.