Comment

Robbery is prohibited by and defined in Tex. Penal Code § 29.02. The definition of “course of committing theft” is from Tex. Penal Code § 29.01(1). The definition of “attempt to commit theft” is based on Tex. Penal Code § 15.01(a). The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definition of “theft” is based on Tex. Penal Code § 31.03(a).

Effect of State’s Failure to Plead Recklessness. Although recklessness is sufficient under the statute for robbery by causing bodily injury, indictments sometimes (and perhaps almost always) allege only intent or knowledge. Wilson v. State, 625 S.W.2d 331, 333 (Tex. Crim. App. 1981), holds that recklessness cannot be added into the application paragraph of the jury instructions for robbery by causing bodily injury if recklessness was not alleged in the indictment. The reason for this appears to be that it impermissibly broadens the theories of liability beyond those of the indictment. However, Wilson relies on other cases where the new theories in the jury charge are considerably broader. In Jackson v. State, 576 S.W.2d 88, 90 (Tex. Crim. App. 1979), for example, the state alleged robbery by threat, which by statute can only be committed intentionally or knowingly. Consequently, when the jury charge diverged from the indictment by adding recklessness as a mental state, the jury charge “authorized the jury to find appellant guilty upon a set of circumstances that could not constitute the offense charged.” Jackson, 576 S.W.2d at 90. Wilson also relied on Lampkin v. State, 607 S.W.2d 550, 551 (Tex. Crim. App. 1980), in which the indictment alleged robbery by causing injury, but the jury charge permitted a conviction either for robbery by causing injury or robbery by threat. Lampkin, 607 S.W.2d at 551.

Regardless, even if recklessness is not alleged in an indictment for robbery by causing injury, Little v. State, 659 S.W.2d 425, 426 (Tex. Crim. App. 1983), held that it is still possible to submit recklessly causing bodily injury in the form of a lesser included offense under Tex. Code Crim. Proc. art. 37.09(3).

Intent to Obtain or Maintain Control of Property. A major question is to what extent, if any, the jury charge should reflect the interpretation given by Texas courts to the requirement that a robber act with intent to obtain or maintain control of the property that is the subject of the theft. The plain language of Texas Penal Code section 29.02 strongly suggests that the person must have the intent to obtain or maintain control of the property at the time the person engages in the assaultive conduct that is part of robbery—the act causing injury, putting the victim in fear, or constituting the threat. In the context of review for evidence sufficiency, however, the court of criminal appeals held in White v. State, 671 S.W.2d 40 (Tex. Crim. App. 1984), that this is not the case.

White was convicted of aggravated robbery, alleged to have been committed by using a firearm to inflict serious bodily injury. The evidence showed that White’s codefendant, Sherlock, grabbed a purse from McCoy and tried—unsuccessfully—to remove it from her grasp. Sherlock abandoned the effort and fled to a car in which White was sitting. One Duncan, a bystander, pursued him. When Sherlock reached the car, White shot the pursuing Duncan with a gun.

Convicted of aggravated robbery, White argued that he inflicted injury on Duncan only after Sherlock had abandoned the purse they were trying to steal. Thus the evidence failed to show he caused the injury to Duncan with the firearm with the intent to obtain or maintain control of the property. Rejecting this, the court explained:

White, 671 S.W.2d at 42. Applying this, the court held:

White, 671 S.W.2d at 43. The court noted that a similar result had been reached six years earlier in Ulloa v. State, 570 S.W.2d 954 (Tex. Crim. App. 1978), although Ulloa did not provide a detailed explanation.

The White analysis was reaffirmed by the court of criminal appeals in 1995:

Lawton v. State, 913 S.W.2d 542, 552 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 264 (Tex. Crim. App. 1998).

The White-Lawton analysis has been followed by the courts of appeals. E.g., Hicks v. State, No. 05-06-01120-CR, 2007 WL 1064327, at *2 (Tex. App.—Dallas Sept. 26, 2007, pet. ref’d, untimely filed) (not designated for publication) (“[T]he State was not required to prove appellant retained the intent to deprive at the time he engaged in the assaultive conduct with a deadly weapon.”). See also Candelaria v. State, 776 S.W.2d 741, 742–43 (Tex. App.—Corpus Christi–Edinburg 1989, pet. ref’d); Morgan v. State, 703 S.W.2d 339 (Tex. App.—Dallas 1985, no pet.) (robbery based on struggle with store employees after defendant threw down coats he was trying to steal); Yarbrough v. State, 656 S.W.2d 200 (Tex. App.—Austin 1983, no pet.) (when discovered in victim’s van taking toolbox, defendant put down toolbox and tried to jump out of van, following which struggle ensued).

The rule is apparently that if all other requirements are met, the state need prove only that the defendant had the intent to obtain or maintain control of the property at some time during the course of committing theft or attempted theft. There appears to be no case law addressing whether this may or should be reflected in the jury charge. No justification appears for instructing juries in the plain language of the statute.

Defendants, of course, would not be harmed by ignoring the White-Lawton analysis in instructing the jury. This would simply mean that juries would be told to determine guilt-innocence under standards stricter than those that will be applied on appeal to determine the sufficiency of the evidence to support a conviction.

Conceptually, however, this is impossible to justify. And if on appeal robbery law protects members of the community from force or threats made in flight from an abandoned attempt to commit theft, the community is also entitled to whatever additional protection will come from having juries informed that such circumstances constitute robbery.