This is an appeal from a conviction for aggravated robbery. Following a verdict of guilty the jury assessed punishment at twenty years confinement in the Texas Department of Corrections. On appeal, appellant contends that the trial court erred in failing to grant appellant's motion to quash the indictment which would have required the State to plead the specific point at which the robbery occurred while in the course of committing theft; and that the trial court erred in the court's charge to the jury at the guilt/innocence phase of the trial in failing to define properly the term "effective consent." Finding no error requiring reversal set forth by appellant's two grounds of error, we affirm the conviction.
In his first ground of error appellant contends that the trial court should have sustained his motion to quash the indictment and required the State to plead more specifically the meaning of the phrase "while in the course of committing theft." Appellant argues that since the statutory definition of the phrase encompasses four variant methods of commission of this element, the State should be required to plead the specific allegation of the theory the State will rely on to prove this element. We disagree and overrule this ground of error on the authority of Linville v. State, 620 S.W.2d 130, 131 (Tex.Cr.App. 1981).
In his second ground of error appellant asserts that the trial court erred in the guilt or innocence stage of the trial in failing to define properly the term "effective consent." Appellant's contention is that, in the defining portion of the charge, the court used the general definition of "effective consent" from Tex.Penal Code Ann. § 1.07(a)(12)(A) (Vernon 1977)1 rather than the definition of "effective consent" contained within the chapter on theft Tex.Penal Code Ann. Section 31.01(4)(A) and 31.01(1) (Vernon 1974).2 The appellant timely objected to the court's definition of "effective consent" as set forth in its charge to the jury and was overruled. The charge to which appellant objected follows: "Effective consent includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by force, threat or fraud." Lack of consent is not an element of the crime of aggravated robbery as defined in Tex.Penal Code Ann. § 29.03(a), except insofar as it is applicable to the element of the offense alleged as follows: "while in the course of committing theft." The appellant contends that the only definition that may be applied to the term "without effective consent" as alleged in the indictment in this case is the definition set forth by Tex.Penal Code Ann. Section 31.01(4) which applies to the chapter on theft. The facts proven in the record show that the complainant, Darleen Hays, was stopped at gunpoint by appellant and his companion, ordered to vacate her vehicle, had her hair pulled, heard a shot fired as she moved away from her vehicle, witnessed appellant and his companion enter her vehicle and drive away, firing a shot as they left. Complainant's testimony shows she was in fear of loss of life or of imminent bodily injury on the occasion in question and that no effective consent was given by her, either express or apparent, to the taking of her property. No claim is made in the record by appellant that consentwas given so as to make consent a point in issue. *Page 640 The evidence clearly reflects that no consent was requested and none given. We note that the application portion of the court's charge required the jury to find that the appellant did "threaten or place the said complainant in fear of imminent bodily injury" in order to find him guilty of the offense of aggravated robbery. This allegation is amply supported by the evidence. The jury being expressly required to find a "threat", this case falls within the definition of "effective consent" under both Sections 1.07(a)(12)(A) and 31.01(1) and 31.01(4)(A). We find no error in the definition of "effective consent" given by the court's charge here complained of. We note further that the charge given properly applied the law to the facts and, effectively restricted the jury's deliberations to the allegations in the indictment. The charge made clear when a "guilty" verdict would be required and when a "not guilty" verdict would be required. The charge viewed as a whole does not authorize conviction on a theory not alleged in the indictment. It is not calculated to injure rights of the defendant or to deprive him of a fair and impartial trial. Tex Code Crim.Pro.Ann. art. 36. 19 (Vernon 1981). No reversible error is shown. The judgment is affirmed.
GUITTARD, C.J., and AKIN, CARVER, SPARLING, FISH, WHITHAM and GUILLOT, JJ., concur in the opinion.
TED Z. ROBERTSON and STEPHENS, JJ., concur in the dissent.
STOREY, J., not participating.
(A) induced by force, threat, or fraud;
(A) induced by deception or coercion;
(1) "Coercion" means a threat, however communicated:
(A) to commit an offense;
(B) to inflict bodily injury in the future on the person threatened or another;
(C) to accuse a person of any offense; or
(D) to expose a person to hatred, contempt, or ridicule;
(E) to harm the credit or business repute of any person; or
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action