for the defense for the defense - Voice For The Defense Online

second issue, found it unnecessary to address its first issue, reversed
the order quashing the indictment, and remanded the
case to the district court.
HELD: The State, as the losing party in the district court,
could not raise for the first time on appeal a claim that there was
no valid basis for the court to have quashed the indictment.
Howard v. State, 333 S.W.3d 137 (Tex.Crim.App. 2011);
Affirmed
Appellant entered a store wielding a rifle and concealing his
face with fabric. The store’s owner and cashier, Mukesh Patolia,
was alone in the store and in a back office. After observing appellant
on his security-camera monitor and through a one-way
window, Patolia locked the office and called 911. There is no
evidence in the record showing appellant was aware of Patolia.
Appellant was unable to open the cash register, but took Patolia’s
wallet from the counter and money from underneath. A jury
convicted appellant of aggravated robbery and sentenced him
to life in prison. COA affirmed.
CCA granted review on this novel issue: “Does the offense
of aggravated robbery require interaction between the accused
and the purported victim” Appellant contests that because he
could not intentionally or knowingly place in fear “a person
whose presence or even existence [was] unknown” to him, the
evidence was legally insufficient to support a robbery conviction,
and the conviction should be reformed to theft. Because
the jury could have found appellant guilty for either of these
culpable mental states, CCA only addressed the less-culpable
mental state of knowingly.
HELD: “Knowingly” does not refer to the defendant’s
knowledge of the actual results of his actions, but knowledge
of what results his actions are reasonably certain to cause. Using
this definition, robbery-by-placing-in-fear does not require
that a defendant know he actually places someone in fear, or
know whom he actually places in fear. Rather, it requires that
the defendant is aware that his conduct is reasonably certain
to place someone in fear, and that someone actually is placed
in fear. Given the video evidence, a rational juror could have
inferred that appellant was aware it was reasonably certain his
actions would place someone in fear of imminent bodily injury
or death. The fact that appellant did not see Patolia—who
testified that he was frightened by appellant—does not negate
appellant’s culpable mental state.
Byrd v. State, __S.W.3d__ (Tex.Crim.App. No. 0738-10,
3/30/11); Reversed & acquittal ordered
Appellant contended that the State’s evidence was insufficient
to support a conviction of misdemeanor theft because
the State alleged the wrong owner at trial. A sharply divided en
banc COA held that the discrepancy between the alleged owner
and the proof at trial was an immaterial variance.
HELD: “‘[V]ariance’ ought to be used to describe instances
in which there is a minor discrepancy between the facts alleged
and those proved, such as a difference in spelling, in numerical
digits, or in some other minor way.” But when the discrepancy
between the charging instrument and the proof at a theft trial
is that of an entirely different person or entirely different property,
that discrepancy is not merely a variance, it is a failure of
proof. Thus, because the State failed to prove that the named
owner had any ownership interest in the property, the evidence
is insufficient under the principles in the Malik, Gollihar, and
Fuller trilogy.
Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 1400-10,
3/30/11); Reversed & remanded
Appellant was convicted of aggravated robbery, and a jury
sentenced him to ten years’ confinement. During voir dire, defense
counsel asked: “Let’s talk about factors in [assessing] the
sentence in a case of aggravated robbery with a deadly weapon.
What factors do y’all think are important” Without an objection
from the State, the court interjected, “[Counsel], that’s a
commitment question. You can’t ask that question.” Appellant
petitioned that COA erred in affirming this as an improper
commitment question.
HELD: Where jurors will be required to choose between
only two possibilities, inquiries into what will influence their
decision are more likely to require commitments than in situations
where jurors can choose among a broader range. COA
compared appellant’s question to one posed in Standefer v. State,
59 S.W.3d 177 (Tex.Crim.App. 2001). “What circumstances in
your opinion warrant the imposition of the death penalty”
Standefer is distinguishable as it asked jurors to define situations
in which they would impose a specific sentence. Had counsel
asked jurors what circumstances would warrant the maximum
punishment, that would have been an impermissible commitment
question. Instead, the question sought to discover which
factors would be important to jurors’ decisions, without inquiring
how those factors would influence the decision. The question
in this case is also distinguishable from the death-penalty
question because sentencing for a capital felony has only two
possible outcomes. In this case, there is a much broader range
of sentencing possibilities.
State’s PDRs
Rice v. State, 333 S.W.3d 140 (Tex.Crim.App. 2011);
Affirmed
Appellant was charged with two counts of aggravated assault
with a deadly weapon—to wit, a motor vehicle. A jury convicted
him of both counts and sentenced him to five years’ imprisonment
on each charge. COA reversed and remanded, concluding
that the trial court erred by failing to instruct the jury on the
lesser-included offense of reckless driving and that appellant
was harmed by such error. CCA granted review to determine
whether the lesser-included-offense instruction should have
been given when the indictment did not allege that appellant
drove a motor vehicle.