Preas v. State

OPINION BUTTS, Justice. This is an appeal from a conviction for aggravated robbery. A jury, having found appellant guilty, assessed his punishment at seventy-five (75) years’ imprisonment. We affirm the judgment. [942] Appellant contends in his first ground of error that the trial court should have dismissed his indictment for failure to state a cause of action. He asserts the indictment does not charge an essential element of the offense. The indictment, in pertinent part, alleges the appellant did then and there: “. .. while in the course of committing theft and with intent to maintain control of property of Norman Tomlinson, to-wit: currency in the amount of more than $200 but less than $10,000, without the effective consent of the said Norman Tomlinson and with intent to deprive the said Norman Tomlinson of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a handgun intentionally and knowingly threaten Norman Tomlinson with imminent bodily injury or death, ...” (Emphasis added.) Tex.Penal Code Ann. § 29.02 (Vernon 1974) provides: (a) A person commits an offense if, in the course of committing theft ... and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. ****** Tex.Penal Code Ann. § 29.03 (Vernon 1974) provides: A person commits an offense if he commits robbery as defined in Section 29.02 . . ., and he: (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon. ****** An indictment for aggravated robbery must include the required elements of robbery. Further, there must be an allegation of aggravation that a defendant (1) caused serious bodily injury, or (2) threatened or placed another in fear of imminent bodily injury or death. One or the other must be alleged. Williams v. State, 524 S.W.2d 73 (Tex.Cr.App.1975). Green v. State, 567 S.W.2d 211 (Tex.Cr.App.1978) discloses a mirror allegation of that in the instant indictment. There the defendant was charged with having placed the complaining witness in fear of imminent bodily injury and death (omitting “threatened”). Unlike the present case, however, the question addressed on appeal was the quantum of proof required under that allegation. Apparently discerning little distinction between the disjunctive methods of violence in that particular case, the court determined the evidence was sufficient to support the conviction. Significantly, the court did not question the content of that indictment. The allegations of the indictment in Lincoln v. State, 560 S.W.2d 657, 658 (Tex.Cr.App.1978) alleged both threatening and placing another in fear. The court stated, “... Thus, proof of threats or proof of placing another in fear of imminent bodily injury or death will suffice.” (Emphasis added.) While it is common practice to allege both methods of violence, the State is never required to prove both threats and placing in fear. It may do so, however. Conversely, the State in the instant case, by alleging only one of the two means of violence, codified disjunctively in the robbery statute, was bound to prove that one (threats). Further, the trial court in this case was correct in eliminating “or placed in fear” from the jury charge. Lee v. State, 577 S.W.2d 736 (Tex.Cr.App.1979). We find the indictment recited the essential elements of the offense of aggravated robbery. The ground of error is overruled. In ground of error two appellant claims there is a variance between the sum of money alleged in the indictment to have been taken from witness Norman Tomlin-son and the amount proved by the State. This, argues appellant, results in insufficient evidence to support the conviction. The sum alleged in the indictment, supra, was “more than $200 but less than $10,000.” Tomlinson, an employee on October 10, [943] 1979, at the place of the robbery, Harold’s Food Mart in Junction, Texas, testified the amount taken from him was about $970.96, but that included credit card payments and some checks. The evidence disclosed that appellant had either $418.71 or $420.00 at the time of arrest, and that one companion had $155.00 and the other one had $151.01. We find no variance between the allegations and the proof. Moreover, in a robbery prosecution it is not necessary to prove that all the property alleged was actually taken. Proof that any part of that alleged was taken is sufficient. Sirls v. State, 511 S.W.2d 55, 57 (Tex.Cr.App.1974). The robbery statutes supra, support this proposition by the very definition of robbery. To allege any amount of money or currency becomes unnecessary under that definition because the amount of money taken is not descriptive of the offense of robbery. Davis v. State, 532 S.W.2d 626, 629 (Tex.Cr.App.1976). We overrule the ground of error. In his third ground of error appellant contends the doctor who examined appellant as to his mental competency and possible defense of insanity should have filed a separate report on each subject and not one report encompassing the two subjects. He maintains the trial court committed error by permitting this to be done over appellant’s objection as Tex.Code Crim.Pro.Ann. art. 46.03 § 3(g) (Vernon 1979) mandates separate reports be filed. Our examination of the record reveals these three matters: (1) that appellant offered the objection on the day following completion of the competency trial, (2) that the report of the doctor regarding insanity was not placed before the jury, nor was any part of the report introduced in evidence, and, (3) that appellant’s attorney read to the jury from a letter written by appellant on January 10, 1980, the appellant’s admission that he was “pilled up and drunk on wine ... for a couple of days” at the time of the offense. “I was drunk and pilled up and just lost it there for awhile ... I know I was wrong for robbing anyone but my mind wasn’t with me at the time... . ” Appellant clearly made reference to his mental state at the time of the instant offense. See Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1976) for a discussion of the evidentiary “curative doctrine” of admissibility. We perceive no evidence of harm resulting to appellant at the competency hearing because the doctor failed to file two separate reports, and appellant directs our attention to no harmful incident. At the same time we find that the filing of separate report avoids the possibility of intermingling, mixing, and confusing the distinct issues of competency to stand trial and insanity, which is undoubtedly the design of the statute. We suggest that procedure be followed. Addressing the first of our observations, supra, we find the objection, without regard to its content, to be untimely. It is fundamental that an objection, to be timely, must be made at the first opportunity. See, e.g., Garcia v. State, 573 S.W.2d 12, 16 (Tex.Cr.App.1978), Jones v. State, 471 S.W.2d 413, 415 (Tex.Cr.App.1971). The ground of error is without merit. In his fourth ground of error appellant maintains the evidence (gun and money) was recovered through an illegal arrest and search and should not have been admitted in evidence. Witnesses at the scene described in detail appellant and one of his co-defendants. This included approximate ages, hair, size, and clothing. Witnesses had observed two men running to a car and leaving hurriedly. Although there was disagreement as to the model of the car and year, it was described as light in color, older, and dirty. Inside the store at the time of the offense were Tomlinson and two truckdrivers. One of the truckdrivers, Larry Jernigan, testified that he was kicked in the head by appellant. Tomlinson and Jernigan testified that the appellant had a gun, and they identified appellant at the jail the same evening. Within a few minutes after the appellant and his companion fled in an [944] automobile, two officers of the Department of Public Safety entered the store by chance. They immediately radioed the descriptive information to other law enforcement officers, stating that the suspects were “wanted” in Junction for armed robbery which had occurred at about 5:05 p. m. They related that the gun used was a .22 Ruger pistol. The broadcast also told which direction the suspects’ car had taken, heading east on interstate highway 10 toward Kerrville. Gillespie County deputy sheriff K. L. Grobe received the broadcast and stationed himself on highway 290 outside Fredericks-burg. It was here he stopped the vehicle in which appellant was a passenger. He testified the time was approximately one hour later and the distance traveled, about sixty miles, comported with the time required. Further, he stated the number of cars at that time was minimal. Grobe saw appellant attempt to throw away some folded money ($235.00) after he and his companions had been removed from the car. The test for determining probable cause based upon a radioed police broadcast is the information known to the officer who requests other officers to effect an arrest. Williams v. State, 621 S.W.2d 609 (Tex.Cr.App.1981), Hooper v. State, 516 S.W.2d 941, 944 (Tex.Cr.App.1975), Merriweather v. State, 501 S.W.2d 887 (Tex.Cr.App.1973). Without repeating the robbery facts known to the two Department of Public Safety officers who broadcast the information, we find that both of these officers had the requisite probable cause to arrest and search appellant and his companions. See, Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Upon receipt of the information from these officers, Grobe was justified in stopping the vehicle, arresting the occupants, and searching them and the vehicle for weapons and for the fruit of the robbery, money, all without a warrant. Additionally, the folded money which appellant attempted to discard was recovered by Grobe while in plain view, which removed that evidence from the protective sphere of either the United States Constitution or the Texas Constitution. Admission in evidence of these items of evidence presented no error. The ground of error is overruled. Appellant in his fifth ground of error challenges the trial court’s failure to charge the jury on circumstantial evidence made necessary because the State presented no direct evidence of the exact amount of money taken. He claims also that the evidence is indirect since the State did not prove this was the very same money that was taken. Under the robbery statutes, supra, proof that money was actually taken is not an essential element of the offense, when the allegation “while in the course of committing theft” is included in the indictment and charge to the jury. See e.g., Wells v. State, 576 S.W.2d 857, 859 (Tex.Cr.App.1979). A charge upon circumstantial evidence in Texas becomes necessary only when the evidence of the main fact essential to guilt is entirely indirect. Ransonette v. State, 550 S.W.2d 36, 43 (Tex.Cr.App.1977). In this case direct evidence from identification witnesses established that appellant was a principal offender. There was direct evidence that he threatened the victims at the store with a gun, that he cursed them, threatened to kill one of them, and kicked one of them in the head. Proof of the exact amount of money taken and proof that the money recovered was the same money that was taken were not main facts to be proven before guilt could be established. We overrule the ground of error. The judgment is affirmed. KLINGEMAN, J., concurs in result.