Preston v. State

I respectfully dissent, and will address the appellant's contention that the trial court erred in the guilt/innocence phase of the trial in failing to properly define the term "effective consent." Appellant's contention is that, in the definitional portion of the charge, the court used the general definition of effective consent from Tex.Penal Code Ann. Section 1.07(a)(12)(A) (Vernon 1974)¹ rather than the definition of effective consent contained within the theft statute Tex.Penal Code Ann. Section 31.01(4)(A) (Vernon 1974).² The majority opinion is correct in stating lack of consent is not an element of the crime of aggravated robbery. Tex.Penal Code Ann. Section 29.03(a). It is not necessary to negate the victim's consent in the charging instrument.McWherter v. State, 607 S.W.2d 531, 535 (Tex.Crim.App. 1980). Neither is it necessary in an aggravated robbery indictment to allege the elements of the underlying crime of theft. Evans v. State, 606 S.W.2d 880, 882 (Tex.Cr.App. 1980). However, in the present case, elements of the underlying crime of theft were set out in the indictment.³

The Court did attempt to charge on the element set out in the indictment,⁴ as well as charging on "while in the course of committing theft." The appellant timely objected to the court's definition of "effective consent" and was overruled. The definition of "effective consent" as given by the trial court was to be used by the jury where applicable to "while in the course of committing theft" and to the elements of theft as set out in the charge. The definition as *Page 641 used, was taken from Section 1.07(a)(12)(A) supra which is applicable to all of the Penal Code except to the crime of theft. The court should have defined "effective consent" in accordance with Section 31.01(4)(A)supra. See Tex.Penal Code Ann. Section 31.01, comment (Vernon 1974). The majority opinion points out that the evidence "clearly reflects that no consent was requested and none given." Further the majority opinion states "No claim is made in the record by appellant that consent was given so as to make consent a point in issue." Consent was an element set out in the indictment and the lack of consent must be proved. It is significant that the term "force" used in the court's charge on "effective consent" is not part of the proper statutory definition of "effective consent" for use in the crime of theft, i.e., "coercion or deception."⁵ Consequently, the charge in the present case allowed the jury to find that the consent had been induced by force, which would not be an alternative available to the jury under Sec. 31.01,supra. This is an example of the third type of fundamental error set out in Cumbie v. State, 578 S.W.2d 732, 734 (Tex.Cr.App. 1979). The court did commit reversible error because the charge authorized conviction for conduct which is not a penal offense (i.e. where consent is induced by force). The judgment should be reversed and the case remanded.

¹ "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by force, threat, or fraud;

² "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception or coercion;

³ The pertinent part of the indictment alleges that appellant: [t]hen and there while in the course of committing theft and with intent to obtain and maintain control of the property of DARLEEN HAYS, hereinafter called "Complainant," the said property being an automobile, without the effective consent of the said Complainant and with intent to deprive the said Complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a firearm, intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury.

⁴ The charge defined "Effective consent" as:

"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.

⁵ These terms are defined in Tex.Penal Code Ann. Section31.01(1) and (2) (Vernon 1974) as they relate to the crime of theft as follows:

(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.

(2) "Deception" means:

(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;

(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;

(C) preventing another from acquiring information likely to affect his judgment in the transaction;

(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or

(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.