Ex Parte Lucas, 574 S.W.2d 162 (Tex. Crim. App. 1978). · Go Syfert
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Ex Parte Lucas, 574 S.W.2d 162 (Tex. Crim. App. 1978). Cases Citing This Book View Copy Cite
43 citation events (3 in the last 25 years) across 2 distinct courts.
Strongest positive: McCrary v. State (texapp, 2010-11-02)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 9 distinct citers.
discussed Cited as authority (rule) McCrary v. State
Tex. App. · 2010 · confidence medium
Hawkins, 6 S.W.3d at 559-60 (Tex.Crim.App.1999) (citing Ex parte Lucas, 574 S.W.2d 162, 163-64 (Tex.Crim.App.1978)); accord Hightower v. State, 629 S.W.2d 920, 922 (Tex.Crim.App. [Panel Op.] 1981) (robbery is form of assault); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex.Crim.App. [Panel Op.] 1981) (“The current penal code robbery offenses are assaultive in nature and are not aggravated forms of theft.”).
discussed Cited as authority (rule) Ex parte Padron
Tex. App. · 2000 · confidence medium
Hawkins, at 559-60 (citing Crank v. State, 761 S.W.2d 328, 350 (Tex.Crim.App. 1988); Hightower v. State, 629 S.W.2d 920, 922 (Tex.Crim.App.1981); Linville v. State, 620 S.W.2d 130, 131 (Tex.Crim.App. 1981); Rohlfing v. State, 612 S.W.2d 598, 602 (Tex.Crim.App.1981); Ex parte Lucas, 574 S.W.2d 162, 163-64 (Tex.Crim.App. 1978)).
examined Cited as authority (rule) Ex Parte Hawkins (4×)
Tex. Crim. App. · 1999 · confidence medium
Ex parte Lucas, 574 S.W.2d 162, 163-64 (Tex.Cr.App.1978) (citations omitted).
discussed Cited as authority (rule) Camacho v. State
Tex. App. · 1992 · confidence medium
Hightower v. State, 629 S.W.2d 920, 922 (Tex.Crim.App. [Panel Op.] 1981); Ex Parte Lucas, 574 S.W.2d 162, 163 (Tex.Crim.App. [Panel Op.] 1978); see also Morgan v. State, 650 S.W.2d 920, 923 (Tex.App.—Tyler 1983, pet. ref’d).
cited Cited as authority (rule) Henderson v. State
Tex. App. · 1983 · confidence medium
Robinson v. State, 596 S.W.2d 130 , 134 Tex.Cr.App.1980); Ex parte Lucas, 574 S.W.2d 162, 164 (Tex.Cr.App.1978).
cited Cited as authority (rule) Criff v. State
Tex. App. · 1983 · confidence medium
Ex parte Lucas, 574 S.W.2d 162, 164 (Tex.Cr.App.1978); Franklin v. State, 607 S.W.2d 574, 576 (Tex.Cr.App.1980); Hill v. State, 568 S.W.2d 338, 339 (Tex.Cr.App.1978).
cited Cited "see" David Cardenas v. the State of Texas
Tex. App. · 2024 · signal: see · confidence high
See Ex parte Lucas, 574 S.W.2d 162, 164 (Tex. Crim.
discussed Cited "see" Hill v. State (2×)
Tex. Crim. App. · 1982 · signal: see · confidence high
See Ex parte Lucas, 574 S.W.2d 162 (Tex.Cr.App.1978).
cited Cited "see" Evans v. State
Tex. Crim. App. · 1980 · signal: see · confidence high
See, Ex parte Lucas, Tex.Cr.App., 574 S.W.2d 162 .
Ex Parte Albert William LUCAS
59887.
Court of Criminal Appeals of Texas.
Dec 13, 1978.
574 S.W.2d 162
Douglas, Davis, Vollers.
Cited by 38 opinions  |  Published

OPINION

TOM G. DAVIS, Judge.

This is an application for writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P.

In 1977, petitioner pleaded guilty to aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Punishment was set at 45 years.

The judge of the trial court made findings of fact and conclusions of law supporting his recommendation that relief should be granted. This Court, however, is not bound by such findings or conclusions of law. Ex parte Hagans, 558 S.W.2d 457, and cases cited therein.

Petitioner contends that the indictment is fundamentally defective in that it fails to describe the property taken and allege the ownership of this property. The trial judge cited our decision in Ex parte Canady, Tex.Cr.App., 563 S.W.2d 266, as authority for his conclusion that the indictment was fundamentally defective for failing to describe the property.

Reliance on Ex parte Canady, supra, is misplaced, however, as an important distinction exists between that case and the present case. The defendant in Canady was prosecuted under Art. 1408, V.A.P.C. (1925), while the petitioner here was convicted for an offense under V.T.C.A. Penal Code, Sec. 29.03. As set out below, the decisions relating to the sufficiency of an indictment under Art. 1408, supra, so far as they speak to the necessity for a description of the property or an allegation of ownership, are not applicable to indictments under Sec. 29.03, supra.

The basis of the holding in Canady is this Court’s decision in Mankin v. State, 451 S.W.2d 236. In Mankin, we held that the failure to describe the property allegedly taken rendered the indictment fundamentally defective. The Court reasoned that since under the common law robbery was but an aggravated form of theft, when charging robbery it was necessary to describe the property as if charging theft. This decision is still followed in cases involving Art. 1408, supra. Ex parte Cannady, Tex.Cr.App., 571 S.W.2d 16; Ex parte Forgason, Tex.Cr.App., 567 S.W.2d 517; Ex parte Canady, supra.

In Lucero v. State, 502 S.W.2d 128, this Court held that the failure to allege the ownership of property in an indictment under Art. 1408, supra, rendered that indictment fundamentally defective. The decisions cited in support of this holding reveal that the reasoning underlying Lucero is the same as that in Mankin. In Higgins v. State, Tex.Cr.App., 19 S.W. 503 (cited in Lucero v. State, supra), as in Mankin, the Court stated that robbery was an aggravated form of larceny or theft. 19 S.W. at 504. Lucero still retains its vitality in regard to cases prosecuted under Art. 1408, supra. Ex parte Rivers, Tex.Cr.App., 559 S.W.2d 659; Ex parte Haywood, Tex.Cr.App., 550 S.W.2d 292; Ex parte Banks, Tex.Cr.App., 542 S.W.2d 183; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179.

The common law analysis of the nature of a robbery offense was correct under Art. 1408, supra, as the offense required a completed theft as an element of the crime. Watson v. State, Tex.Cr.App., 532 S.W.2d 619; Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165. Under Sec. 29.03, however, no completed theft is required. Earl v. State, Tex.Cr.App., 514 S.W.2d 273; Reese v. State, Tex.Cr.App., 531 S.W.2d 638. Under the new Penal Code, the offense is no longer an aggravated form of theft.

This Court has considered the effect of this change on the necessity to allege the[*164] ownership of the property when charging a robbery under Sec. 29.03, supra. In Reese v. State, supra, the Court held that this allegation was no longer necessary under Sec. 29.03, supra. The Court found that since a completed theft was no longer a prerequisite to robbery, the allegations of theft required under Art. 1408, supra, were no longer necessary. 531 S.W.2d 640. This same reasoning is applicable to the present case.

A description of the property involved in the robbery was required under Art. 1408 because the offense was characterized as a theft. The change in the focus of the statute, coupled with this Court’s decision in Reese, compels the conclusion that the present robbery offense is assaultive in nature. Cf. Servance v. State, Tex.Cr.App., 537 S.W.2d 753; Watson v. State, 532 S.W.2d 619, 621; Davis v. State, Tex.Cr.App., 532 S.W.2d 626; Earl v. State, supra. Thus, no description of the property is necessary in an indictment under Sec. 29.03, supra.

We hold that an indictment under Sec. 29.03, supra, does not require a description of the property or an allegation as to ownership.

The relief sought is denied.