Lang v. State

691 S.W.2d 692, 1985 Tex. Crim. App. LEXIS 1699

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This case is before us on State’s petition for discretionary review. A jury found appellant guilty of theft of a ring of the value of at least $200 but less than $10,000. Enhanced by a prior theft conviction, the jury assessed punishment at five years. The Dallas Court of Appeals reversed, concluding that the charge was fundamentally defective because it authorized conviction on a theory not alleged in the indictment. Lang v. State, 642 S.W.2d 68 (Tex.App.—Dallas 1982).

Recently in Almanza v. State 686 S.W.2d 157, 171 (Tex.Cr.App.1985) (Opinion on State’s Motion for Rehearing), this Court set out the proper standard for review of fundamental error in the court’s charge under Article 36.19, V.A.C.C.P.:

“... if no proper objection was- made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’— in short ‘egregious harm.’ ” 686 S.W.2d at 171

The determination as to fundamental error must be made by reviewing

“the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” 686 S.W.2d at 171.

We now remand this cause to the Court of Appeals for further proceedings consistent with our opinion in Almanza.

ONION, P.J., dissents to remand.