Eldridge Lavon Shivers, Jr. v. State ( 2006 )

NO. 07-05-0380-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 14, 2006
______________________________
ELDRIDGE LAVON SHIVERS, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 51,314-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Eldridge Lavon Shivers, Jr., appeals his conviction for robbery and his
punishment, enhanced by two prior felony convictions, of 80 years confinement in the
Institutional Division of the Texas Department of Criminal Justice. Appellant contends that
the trial court committed reversible error by not properly applying the law of parties to the
facts of the case in the charge. We affirm.
Factual and Procedural Background
On July 1, 2005, the victim, Charles Daniel Cook, was approached by a man,
subsequently identified as appellant. The victim alleged that appellant placed a sharp
object in his back and demanded his money. While the victim was attempting to talk to
appellant, another individual arrived at the side of the victim and placed a hard object
against his back. This second individual advised the victim that he had a gun and
demanded the victim’s money. The victim gave the assailants $200. The victim went to
his motel room and called 911. After describing the events to the police, the victim was
called to another motel where he positively identified appellant, who had been detained by
the police, as the man that had placed the sharp object in his back. The second individual
was never identified.
Appellant was indicted for aggravated robbery, but was convicted of the lesser
included offense of robbery. The trial court submitted the question of appellant’s guilt both
as the principal actor and as a party to the offense. Appellant contends that the court’s
charge does not properly apply the law of parties to the facts of the case.
Analysis
When an appellant objects to the court’s charge, our first inquiry is whether there is
any error in the charge as presented to the jury. Hutch v. State, 922 S.W.2d 166, 170
(Tex.Crim.App. 1996).
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In the charge submitted to the jury, the trial court defined robbery and its elements.
There was no objection to the court’s definition of the mens rea and the concept of criminal
responsibility, pursuant to the Texas Penal Code. TEX . PEN . CODE ANN . §§ 6.03, 7.01-.02
(Vernon 2005). As appellant was convicted of the lesser included offense of robbery, the
application paragraph for robbery, both as primary actor and as party, are set forth as
follows:
Now if you find from the evidence beyond a reasonable doubt that on or
about the 1st day of July, 2005, in Potter County, Texas, the defendant,
ELRIDGE LAVON SHIVERS, JR., did then and there, while in the course of
committing theft of property, to-wit: good and lawful United States currency,
with the intent to obtain or maintain control of said property, did intentionally
or knowingly threaten or place Charles Cook in fear of imminent bodily injury
or death; or
if you find from the evidence beyond a reasonable doubt, that on or about the
1st day of July, 2005, in Potter County, Texas, an unknown person, did then
and there, while in the course of committing theft of property, to-wit: good and
lawful United States currency, and with intent to obtain or maintain control of
said property, did intentionally or knowingly threaten or place Charles Cook
in fear of imminent bodily injury or death and if you further believe from the
evidence beyond a reasonable doubt that on said date in said County and
State, the defendant, ELDRIDGE LAVON SHIVERS, JR., as a party as that
term is hereinbefore defined, solicited, encouraged, directed, aided or
attempted to aid the said unknown person in the foregoing action by
threatening the said Charles Cook with bodily injury, you will find the said
ELDRIDGE LAVON SHIVERS, JR. guilty of Robbery as charged in the
indictment.
However, appellant did object to the application paragraph of the court’s charge, as
set out above. Appellant contends that this application paragraph is nothing more than an
abstract recitation of the law and should have been tailored to the facts of the case. The
appellant is, however, mistaken in his belief that the referenced charge has not been
sufficiently tailored to the facts of the case.
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In determining whether an application paragraph is specifically tailored to the facts
of the case, the evidence must be reviewed to determine whether the charge applies the
law to the facts raised by the evidence. See Williams v. State, 547 S.W.2d 18, 20
(Tex.Crim.App. 1977). In other words, does the charge inform the jury of what facts would
constitute proof of the elements of the charged offense. See id.
The record reveals that the victim testified that appellant was the person who placed
the sharp object into his side and demanded his money. However, during cross-
examination, the victim admitted that the police incident report’s description of the person
who placed the sharp object into his side did not match appellant, and, in fact, was closer
to the description of the unknown assailant.
The victim testified that the person who did not threaten him with the sharp object
threatened him by claiming to have a gun. When this evidence is viewed as a part of the
entire record, the following becomes clear: one actor physically threatened the victim with
imminent bodily injury and demanded money and a second actor expressed a verbal threat
and also demanded money. Therefore, the issue of the status of appellant, as the principal
actor or as a party, was squarely before the jury.
Appellant claims that the specific threat, by which we assume he means the specific
language used, should have been included in the application paragraph. However,
appellant does not cite us any cases where this type of charge has been required or
approved. In reviewing the law of charges and, specifically the requirement that the
application paragraph fit the facts of the case, charges similar to the charge given in this
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case have been approved by the Texas Court of Criminal Appeals and Texas Courts of
Appeals. See Davis v. State, 651 S.W.2d 787, 792 (Tex.Crim.App. 1983); Woods v. State,
749 S.W.2d 246, 247-48 (Tex.App.–Fort Worth 1988, no writ) (reversed for failure to give
requested application paragraph containing general allegation of encouraging principal
actor with intent to promote or assist the offense of aggravated robbery). Accordingly, we
conclude that the charge presented to the jury properly applied the law to the evidence
presented in the case and was, therefore, not error.
Conclusion
Having determined there was no error in the court’s charge, the judgment of the trial
court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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