Smith v. State , 1983 Tex. App. LEXIS 4278 ( 1983 )

REYNOLDS, Chief Justice,

concurring.

I concur in the overruling of appellant’s grounds of error and the affirmance of the judgment of conviction. I add these comments in disagreement with appellant’s contention that the court’s charge was fundamentally defective.

The indictment charged that appellant “and John Paul Bryant, acting together,” committed the offense of burglary of a building. The court’s charge permitted the jury to, and the jury did, find appellant guilty of the burglary without finding that he and Bryant acted together. On appeal, appellant asserts that the charge permitted a conviction on a theory not alleged in the indictment; therefore, he argues, the charge is fundamentally defective and a reversal is required. We have disagreed.

Although the indictment charged the commission of the burglary by appellant and Bryant acting together, the allegation of their concerted action is neither descriptive of, nor legally essential to charge, the offense of the burglary itself; thus, it may be rejected as surplusage. Ferguson v. State, 572 S.W.2d 521, 524 (Tex.Cr.App.1978); Craig v. State, 480 S.W.2d 680, 685 (Tex.Cr.App.1972), citing 2 Branch’s Ann. P.C. § 704 (2d ed. 1956). Because the allegation of concerted action was and is sur-plusage, it need not have been proved. Craig v. State, supra; Gibson v. State, 448 S.W.2d 481, 482 (Tex.Cr.App.1969). A forti-ori, the court’s charge need not — and, indeed, it should not — have required the jury to find that appellant and Bryant acted together as alleged when it was not required to be proved.

An allegation that two or more persons committed a crime needs to be submitted to the jury and proved to sustain a conviction only if the crime charged is one — e.g., a conspiracy to commit some crime — which requires the active participation of those persons for its commission. Compare Brady v. State, 122 Tex.Cr.R. 539, 56 S.W.2d 879 (1933), with Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319 (1960). Here, the rejection of the surplusage is appropriate since appellant’s conduct, as particularized in our primary opinion, is sufficient, in and of itself, to prove that he burglarized the building without regard to the conduct of Bryant, albeit there was evidence of Bryant’s involvement with appellant when appellant committed the burglary.