Almanza v. State

686 S.W.2d 157, 1985 Tex. Crim. App. LEXIS 1230

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

The Fort Worth Court of Appeals stated the following in Almanza v. State, 645 S.W.2d 885 (Tex.App. — Ft. Worth 1983):

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, [however], 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.

The State has filed a petition for discretionary review with this Court, asking us to make the determination whether the above decision of the Court of Appeals is correct. We have concluded, after the respective parties favored this Court with well written supplemental briefs, as well as making outstanding oral arguments, that the decision of the Court of Appeals is in all things correct.

The State’s petition for discretionary review was improvidently granted. It is therefore-ordered dismissed.