concurring.
The majority opinion, as well as others in this cause and Rohlfing v. State, 612 S.W.2d 598 (Tex.Cr.App.1981), seems to have divined a “commonly understood meaning” of the statutory phrase “in the course of committing theft.” The majority says it is “more restrictive than the statutory definition” in V.T.C.A. Penal Code, § 29.01(1), viz: “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.”
I am prepared to accept that “the definition of robbery under the 1974 Penal Code is broader than the one contained in Article 1408, [P.C.1925],” Lightner v. State, 535 S.W.2d 176, 177 (Tex.Cr.App.1976), but I cannot confidently say that there was or is any “common meaning” among laymen about either, nor declare with certainty what it is. But though there be one and whatever it is, Article 36.14, V.A.C.C.P. contemplates that jurors will be instructed as to the meaning of such applicable legal definitions which, being statutorily prescribed, are considered by the Code Construction Act, Article 5429b-2, § 2.01, to have acquired technical or particular meaning, Article 3.01, V.A.C.C.P., to the end that “the determination of the meaning of [legislative] enactments” is not relegated “to the publishers of dictionaries.” Milligan v. State, 554 S.W.2d 192, 196 (Tex.Cr.App.1977); Watson v. State, 548 S.W.2d 676, 679, n. 3 (Tex.Cr.App.1977).
Therefore, an appellate court reviewing a claim that a charge is defective for failure to instruct the jury on a specially prescribed definition that is, by statute, an essential element of the offense offends, or comes perilously close to offending, notions of due process and due course of law by assuming a jury would consider in its deliberations whatever the appellate court says is the commonly understood meaning of the term when that understanding is believed to be other than the legislative definition. The danger is demonstrated in this very cause: The San Antonio Court of Appeals made that assumption and found error; the majority makes that same assumption and finds no reversible error. Both draw on language in Rohlfing v. State, supra, at 602-603 — a panel opinion that was not tested on rehearing. The Court of Appeals concludes “there is a substantial likelihood that the jury could have been misled into convicting appellant for robbery by finding him guilty of the elements of the offense of theft;” the majority opines that “[a]ny possible misunderstanding of the phrase . . . could only have been to appellant’s benefit.” If Rohlfing can be read by reasonable judges to reach diametrically opposing results, that language should be reexamined rather than relied upon.
For my part, invoking rudimentary principles of law that the charge should instruct the jury to resolve issues tendered by the pleadings and raised by the evidence, I find that the application paragraph authorizes a conviction upon findings that are consonant with the indictment and evidence.
The indictment was cast in terms of V.T. C.A. Penal Code, § 29.02(a)(2) — “if, in the . *410course of committing 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.” The application paragraph authorized the jury to convict if inter alia it believed that appellant,
in the course of committing theft from the said Dolores Rossel, and with intent to obtain and maintain control of the said property without the consent of Dolores Rossel, intentionally and knowingly threatened and placed Andrew Domin-quez in fear of imminent bodily injury and death you will find the defendant guilty.”
The proof adduced by the State showed that appellant shoplifted two necklaces; Dolores Rossel attempted to stop him from leaving the store but, failing to do so, called for help; Andrew Dominquez, a stockboy, ran out after appellant; appellant stopped in an alley and turned on Dominguez with a knife; Dominguez retreated and returned to the store.
Faithful to the indictment and comporting with the evidence the application paragraph presented to the jury the law applicable to the facts of the matter. The jury, without regard to speculation concerning what its members commonly understood “in the course of committing theft” to mean, was asked to and could find every factual element of the offense alleged, including the only threat by assault shown to have been made by appellant upon Dominquez after stealthily taking property from the store managed by Rossel. There was no fundamental error in any of that. Hill v. State, 640 S.W.2d 879, 884-886 (Tex.Cr.App.1982) (Dissenting opinion).
For the reasons given then, I join in the judgment of the Court.
MILLER, J., joins.