Carl Edward King v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-220-CR

CARL EDWARD KING,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 91-162-C

O P I N I O N

Carl King appeals his conviction for aggravated robbery. // King was found guilty by a jury, and, as a result of two prior convictions that enhanced the range of punishment, the jury assessed punishment at ninety-nine years in prison. We affirm.

In point one, King contends that the court erred in refusing to charge the jury on the offense of attempted aggravated robbery because the evidence revealed that he left the store without completing the theft intended. King's argument was rejected by the Court of Criminal Appeals in Watts v. State. // According to the court in Watts:

Since the actual success of obtaining the property sought is not an element of the offense of aggravated robbery, the fact that the acts tend but fail to obtain the property does not render them insufficient to effect the commission of the offense of aggravated robbery. As was stated by this Court in Earl v. State, 514 S.W.2d 273, "the actual commission of the offense of theft is not prerequisite to commission of a robbery." Under the facts of this case, the trial court did not err in refusing to charge on attempted aggravated robbery. //

Accordingly, we overrule point of error one.

In point two, King contends that the trial court erred in refusing to instruct the jury on the defense of renunciation. // King acknowledges that the renunciation defense applies only to preparatory offenses under section 15.01 of the Penal Code // , but raised the point in the event we sustained point one. Having overruled point one, we overrule point of error two.

In point three, King contends that the trial court erred in rejecting testimony offered to impeach the testimony of the victim. Michael Tusa, the owner of Tusa's Grocery, testified that on January 26, 1991, a man entered his store and told a customer, "Get down on the floor." The man, with a thirteen-inch knife raised in his hand, then turned to Tusa and told him, "I mean you too. Get down on the floor." According to Tusa, the man then came behind the counter and said, "Give me one hundred dollars or I'll kill you, man." While attempting to keep the assailant at arm's length, Tusa pushed an alarm button under the counter where the cash register was located. Tusa testified that he repeatedly demanded that the assailant put the knife down as he pushed Tusa back along the counter. Eventually, Tusa was able to reach a gun that he had under the counter, and he began to push the assailant toward the door. According to Tusa, when the assailant got to the door, he turned and "brought the knife to a forward motion, as if to stab." Tusa then drew his weapon from behind his back and aimed it at the assailant's chest. At that point, the assailant finally turned to run. Tusa lowered his aim and fired one shot just below the buttocks. Tusa testified that, after the assailant got in his car, Tusa ordered him to stop and then fired one shot into the rear tire, one shot to the front tire, and the remaining shots into the rear of the car as it fled.

King was later apprehended with a bullet wound in his legs. Police discovered the bullet-ridden car behind the house where King was waiting for an ambulance. The knife, identified by Tusa as the one used by the assailant, was found in the car.

On cross-examination Tusa testified as follows:

[Defense Attorney]: Okay. How did you feel about this shooting.

[Tusa]: Well, sir, it's a sad day when you have to hurt another individual over something that you have no control over.

Defense counsel then offered the testimony of three witnesses to suggest that, on several occasions after the robbery, Tusa boasted among friends about the shooting. The trial court sustained the State's objections to the relevance of the offered testimony. King argued that the offered testimony was relevant to show Tusa's attitude and to attack his credibility. However, King has failed to offer any argument or authorities supporting his contention that the offered testimony was relevant. Consequently, we overrule point of error three. //

In point four, King contends that the trial court erred in placing the guilty-verdict form prior to the not-guilty-verdict form in the charge of the court. He argues that the charge, as submitted, constituted a comment on the weight of the evidence and violated his right to the presumption of innocence. We disagree. The charge to the jury explicitly set out the guilty and not-guilty alternatives available for the jury's consideration. Both verdict forms were printed in identical type on a single page and no emphasis was placed on the guilty-verdict form.

After the trial court defined the elements of the offense, properly placing the burden of proof on the state, the court specifically instructed the jury as follows:

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "not guilty."

The court also instructed the jury that "[a]ll persons are presumed to be innocent and no person can be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt."

Relying on Callins v. State, // we hold that, considered as a whole, the substantive charge and the verdict forms gave the jury the opportunity to consider both possibilities in rendering its verdict. The court's charge expressly reminded the jury of the presumption of innocence. Furthermore, the specific and thorough nature of the substantive charge eliminated the possibility that the jury would consider the order of the verdict forms as a comment by the court on the weight of the evidence. // Point of error four is overruled.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 19, 1992

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