Lonnie Ray Collins v. The State of Texas--Appeal from Crim Dist Ct 2 of Tarrant County

IN THE

TENTH COURT OF APPEALS

No. 10-99-101-CR

LONNIE RAY COLLINS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the Criminal District Court 2

Tarrant County, Texas

Trial Court # 0637657A

O P I N I O N

Appellant Collins appeals his conviction for Aggravated Robbery of an Elderly Person, for which he was sentenced to 50 years in the Institutional Division of the Texas Department of Criminal Justice.

On October 29, 1996, Quigg Snelson, the victim, was at his home when appellant came to the front door at about 8:30 p.m. Appellant asked Snelson for directions to Montgomery Street and one dollar for gas, both of which Snelson provided. Appellant left but returned shortly thereafter with Richard Reese. Appellant and Reese entered Snelson s home without permission. Appellant bloodied Snelson s nose by hitting him with a closed fist, and told Snelson to hand over his money. Appellant and Reese took Snelson s wallet and the money and credit cards it contained as well as his gold watch.

James Dooley, who lived next door to Snelson, heard loud voices coming from Snelson s home and saw appellant and Reese leaving Snelson s house. Dooley went to Snelson s home and found Snelson dazed and complaining of being assaulted. Dooley called the police. Police officers arrived and were provided with descriptions of appellant and Reese, and of the vehicle used by Appellant and Reese. The police discovered the vehicle and stopped it. The police found Snelson s watch in the vehicle and some of his credit cards in the area. Appellant told the officers he had put Snelson s wallet in a public mailbox, from which the police recovered it.

After the state rested, appellant admitted his role in the aggravated robbery. After the jury convicted appellant, the State introduced evidence of appellants considerable criminal history which included the throwing of scalding water on a mentally retarded inmate while in the Tarrant County jail. Appellant elected to have the Judge assess punishment, who assessed and sentenced appellant to 50 years in prison.

Appellant appeals on two points of error.

Point 1: The trial court erroneously charged the jury in a manner that commented on the wright of the evidence.

Specifically, appellant contends the application paragraph of the charge informs the jury that the victim of appellant s aggravated robbery was 65 years of age, when such fact was an element of the offense that the state had to prove beyond a reasonable doubt.

The abstract portion of the charge reads:

A person commits the offense of aggravated robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally or knowingly causes bodily injury to another, and the other person is 65 years of age or older.

The application portion of the charge reads:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 30th day of October, 1996, in Tarrant County, Texas, the defendant did, then and there, intentionally or knowingly, while in the course of committing theft of property, and with intent to obtain or maintain control of said property, cause bodily injury to Quigg Snelson, a person 65 years of age or older, by hitting the said Quigg Snelson with his hand, then you will find the defendant guilty of aggravated robbery, as charged in the indictment. Unless you so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict Not Guilty.

The application paragraph in the Court s charge may set out the elements of the offense in a single paragraph and need not reiterate the burden of proof as to each element of the charged offense in a separate and distinct manner. Smith v. State, 721 S.W.2d 844, 853 (Tex. Crim. App. 1986).

A trial court may not comment on the weight of the evidence in the charge. Tex. Code Crim. Proc. Art. 36.14. The court comments on the weight or the evidence when it s charge comments on the elements of the charged offense, or assumes the truth of a controverted issue. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); Smith v. State, 959 S.W.2d 1, 27 (Tex. App. Waco 1997, ref d). In determining whether the charge comments on the weight of the evidence, we review the charge as a whole rather than as a series of isolated statements. Smith, Id., p. 27; Whaley, Id., p. 32.

When the court s charge here is considered as a whole (including the abstract portion regarding the elements of the offense, the application paragraph setting out the consistent elements of the offense, and the concluding paragraph stating the State s burden of proof of all those consistent elements), it is obvious that the charge did not comment on the weight of the evidence, because it did not assume that Snelson was at least 65 years of age.

We hold that the court did not comment on the weight of the evidence, and that the charge when read in its entirety, placed on the State the burden to prove all elements of the offense beyond a reasonable doubt.

Point 1 is overruled.

Point 2: The trial court erroneously refused to submit a lesser included charge of robbery to the jury in the court s charge.

To be entitled to a charge on a lesser included offense, a defendant must show that the proof of the lesser offense is included within the proof necessary to establish the greater charged offense. Tex. Code Crim. Proc. Art. 37.09(1); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). Additionally, a defendant must show that the record contains some evidence that he is guilty only of the lesser offense. Royster, Id. p. 446. Finally, to be entitled to the instruction on the lesser included offense, the defendant must demonstrate the existence in the factual record of some evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).

In this case, no evidence exists from which a jury could rationally conclude that appellant was guilty only of robbery with bodily injury. To be guilty only of robbery with bodily injury, the jury would out of necessity, have to find that the victim was under 65 years of age.

The only evidence in the record of Snelson s age came from Snelson who testified that he was born May 16, 1925. While appellant tries to rely on the testimony of Dooley (Snelson s neighbor), who testified Snelson claimed to have turned 65 in 1996; Dooley further testified he did not know whether Snelson was older than 65 or younger than 65 on the day of the robbery. Appellant testified he thought Snelson was about 60 years old.

Because Snelson stated the date of his birth which made him 71 years old on the date of the offense, and since no evidence was adduced from any witness who could dispute that Snelson was not older than 65 on the day of the offense, the record contains no evidence from which any jury could rationally conclude that appellant was guilty only of the offense of robbery with bodily injury. Rousseau, Id., p. 672.

Thus, the trial court committed no error in refusing appellant s requested instruction on the lesser included offense of robbery with bodily injury.

Point 2 is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Vance,

Justice Gray, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 11, 2000

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