Hammond v. State

Court of Criminal Appeals of Texas

Hammond v. State

583 S.W.2d 785, 1979 Tex. Crim. App. LEXIS 1572

CourtCourt of Criminal Appeals of Texas

DecidedJuly 18, 1979

DocketNo. 59753

StatusPublished

This text of 583 S.W.2d 785 (Hammond v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hammond v. State, 583 S.W.2d 785, 1979 Tex. Crim. App. LEXIS 1572 (Tex. 1979).

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Opinion

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at 60 years.

At the outset, we are confronted by appellant’s contention that the jury charge was fundamentally defective. The indictment alleges that appellant committed robbery under V.T.C.A., Penal Code Sec. 29.-02(a)(2), by intentionally and knowingly threatening and placing another in fear of imminent bodily injury or death. The charge to the jury authorized a conviction if appellant either committed robbery as alleged in the indictment or committed robbery as defined by V.T.C.A., Penal Code Sec. 29.02(a)(1), by causing bodily injury. Also, the indictment alleges that the robbery was aggravated pursuant to V.T.C.A., [786]*786Penal Code Sec. 29.03(a)(2), in that appellant used and exhibited a deadly weapon. The charge authorized conviction either on this theory or because appellant caused serious bodily injury pursuant to V.T.C.A., Penal Code Sec. 29.03(a)(1).

A jury charge is fundamentally defective if it authorizes the jury to convict a defendant on a theory not alleged in the indictment. Robinson v. State, Tex.Cr.App., 553 S.W.2d 371. The instant case presents us with a jury charge which authorized conviction on both a robbery theory and an aggravation theory not alleged in the indictment. It is therefore fundamentally defective.

The judgment is reversed and the cause is remanded.

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OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed by the jury at 60 years.

At the outset, we are confronted by appellant’s contention that the jury charge was fundamentally defective. The indictment alleges that appellant committed robbery under V.T.C.A., Penal Code Sec. 29.-02(a)(2), by intentionally and knowingly threatening and placing another in fear of imminent bodily injury or death. The charge to the jury authorized a conviction if appellant either committed robbery as alleged in the indictment or committed robbery as defined by V.T.C.A., Penal Code Sec. 29.02(a)(1), by causing bodily injury. Also, the indictment alleges that the robbery was aggravated pursuant to V.T.C.A., [786]*786Penal Code Sec. 29.03(a)(2), in that appellant used and exhibited a deadly weapon. The charge authorized conviction either on this theory or because appellant caused serious bodily injury pursuant to V.T.C.A., Penal Code Sec. 29.03(a)(1).

A jury charge is fundamentally defective if it authorizes the jury to convict a defendant on a theory not alleged in the indictment. Robinson v. State, Tex.Cr.App., 553 S.W.2d 371. The instant case presents us with a jury charge which authorized conviction on both a robbery theory and an aggravation theory not alleged in the indictment. It is therefore fundamentally defective.

The judgment is reversed and the cause is remanded.

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583 S.W.2d 785, 1979 Tex. Crim. App. LEXIS 1572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammond-v-state-texcrimapp-1979.

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