McCORMICK, Judge.
The charge given the jury by the trial court is designed to provide the jury with the law applicable to the case, so that the jury, after determining the facts, may apply the law to those facts.
It is a well recognized rule that, in examining the legal adequacy of a charge, it must be construed as a whole. Monticue v. State, 40 Tex.Crim. R., 51 S.W. 236 (1899); Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App. 1980); Thomas v. State, 599 S.W.2d 812 (Tex.Cr.App. 1980).
The paragraph in which the trial court applies the law to the facts must not be read in a vacuum but must be construed in light of the abstract instructions given. See Jackson v. State, 591 S.W.2d 820 (Tex.Cr.App. 1979); Rivas v. State, 496 S.W.2d 600 (Tex.Cr.App. 1973); Robinson v. State, supra.
In Rivas, the application paragraph omitted an element of the offense. However, the jury had been sufficiently informed of that element of the offense in another paragraph and this Court held the charge was not fundamentally defective.
In the recent case of Jackson v. State, supra, the application paragraph in an aggravated rape trial stated:
"`5. Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Michael W. Jackson, on or about the 8th day of April, 1976, in the County of Bell, and State of Texas, as alleged in the indictment, did then and there intentionally and knowingly by force, that overcame such earnest resistance as might reasonably have been expected under the circumstances, compel N____ J____ G____, a female not his wife, to submit to sexual intercourse without her consent, or the said Michael W. Jackson did then and there intentionally or knowingly by threats, that would prevent resistance by a woman of ordinary resolution, compel N____ J____ G____, a female not his wife, to submit to sexual intercourse without her consent, you will find the defendant guilty of the offense of aggravated rape and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict "not guilty" but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of aggravated rape and proceed to consider whether the defendant is guilty of the lesser included offense of rape.' "
This Court acknowledged that the application paragraph totally failed to require a finding of a threat of imminent infliction of death or serious bodily injury as the indictment alleged. Read alone, the application paragraph did not warrant a conviction for aggravated rape. When the appellant, who was convicted of aggravated rape, complained that the charge was fundamentally defective, this Court held that in light of other portions of the charge, the charge as a whole was not fundamentally defective. See also, McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App. 1975), holding that the application paragraph must be viewed in light of other portions of the charge. See also, Slagle v. State, 570 S.W.2d 916 (Tex.Cr.App. 1978), at 920.
The record in this case reflects that the jury was instructed in paragraph 2g as follows:
"(g) 'Appropriation' and 'appropriate' mean to acquire or otherwise exercise control over property other than real property. Appropriation of property is unlawful if it is without the owner's effective consent. (Emphasis added)
Thereafter, in paragraph 4 (the application paragraph), the jury was instructed in the following terms:
"Now if you find from the evidence beyond a reasonable doubt that on or about the 4th day of January, 1977, in Harris County, Texas, the defendant, Robert Earl Williams, with intent to deprive Serena Long, the owner, of her personal property, to wit, cash money, belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Serena Long said cash money belonging to Serena Long, and that the defendant, in so doing, and with
intent to obtain or maintain control of said cash money, then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find defendant guilty of aggravated robbery, as charged in the indictment." (Emphasis added)
There was no objection lodged to the charge.
The panel decision in this case held that the charge failed to require that the jury find that the appellant appropriated or attempted to appropriate the property without the owner's effective consent. Therefore, the panel concluded the appellant could have been convicted by the jury without the jury finding that the appropriation or attempted appropriation was without the owner's effective consent. It is true that nowhere in the application paragraph were the words "without the owner's effective consent" used. However, the jurors were told that they must find that the defendant did unlawfully appropriate or unlawfully attempt to appropriate the property. They had previously, in paragraph 2g, been told that appropriation is unlawful if it is without the owner's effective consent. Therefore, before the jury could have convicted appellant they were required to find that the appropriation or attempted appropriation of the property was without the owner's effective consent.
The panel opinion relied upon Evans v. State, 606 S.W.2d 880 (Tex.Cr.App. 1980), as the authority for its decision that this charge was "fundamentally defective." In Evans, the trial court attempted to charge the jury in the application paragraph as the court did here, charging the constituent elements of theft. In that case, as here, the court's application paragraph did not mention the words "without the owner's effective consent." However, that opinion does not indicate whether, in another paragraph, the charge had instructed the jury that appropriation is unlawful if it is without the owner's effective consent. Therefore, Evans may be distinguished from the instant case.
Evans also held that a trial court, in its charge to the jury, need only require the jury to find that the offense occurred "while in the course of committing theft", rather than each constituent element of theft, if theft is abstractly defined. It makes no sense to hold that a jury is able to refer back to the abstract definition of a charge to discover what constitutes theft, but is unable to refer back to discover what constitutes one of the elements of theft, unlawful appropriation.
Taylor v. State, 599 S.W.2d 831 (Tex.Cr.App. 1980), is relevant to our inquiry. There, the defendant had been indicted for aggravated robbery. The indictment alleged the defendant did ". . . then and there while in the course of committing theft and with intent to obtain and maintain control of the property. . . ." (Emphasis added). The application paragraph of the jury charge instructed the jury to convict if they found that the defendant did ". . . then and there while in the course of committing theft and with intent to appropriate the property. . . ." (Emphasis added).
The Court held, however, that, since the jury was given an abstract definition of appropriate that was virtually the same as the phrase "obtain and maintain control", the charge was not "fundamentally defective." Therefore, this Court recognized that the jury could refer back to the manner in which the word appropriate was defined. Since it was "correctly" defined in the abstract, the charge as a whole was not fundamentally defective.
Since unlawful appropriation was defined in the charge as it is in V.T.C.A. Penal Code, Section 31.03(b)(2), and the jury was required to find all elements the State was required to prove, the charge was not "fundamentally defective." See Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App. 1979), at 733. Further, this Court must not ignore the legislative mandate of Article 36.19, V.A.C.C.P. An error in the charge of the court to the jury cannot cause a reversal unless such error was calculated to injure the defendant's rights or deprives the defendant of a fair and impartial trial.
For these reasons, I must strongly dissent to the overruling of the State's motion for leave to file motion for rehearing.
DALLY and W. C. DAVIS, JJ., join in this dissent.