Almanza v. State

645 S.W.2d 885

Opinion

OPINION ON MOTION FOR REHEARING

FENDER, Chief Justice.

Our prior opinion is withdrawn.

We reverse and remand.

Although many recent opinions have offhandedly dismissed the changing of “and” in the indictment to “or” in the court’s charge, such approach is dangerous and usually fatal in matters where aggravation or jurisdiction is involved. In the instant cause of aggravated rape the indictment joined the allegation of threats of death to the standard form allegation of rape by the word and. In the court’s charge the aggravation feature was disjoined from rape by the word or. Such constitutes fundamental error. Messenger v. State, 638 S.W.2d 883 (Tex.Cr.App.1982).

The cause is reversed and remanded to the trial court for further proceedings under this indictment.