Luera v. State

658 S.W.2d 566, 1981 Tex. Crim. App. LEXIS 1196

• Court: Court of Criminal Appeals of Texas
• Decided: October 21, 1981
• Docket: 60872
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Punishment was assessed at five years.

In his first ground of error appellant contends the indictment is fundamentally defective. The indictment contained two counts, the first alleging attempted murder and the second alleging aggravated assault. Appellant contends the second count is defective. Although he was convicted of aggravated assault, the charge submitted this offense to the jury not as the principal offense in the case, but as a lesser included offense to the attempted murder. Thus, this case was submitted to the jury under the first count of the indictment, not the second count. Any defect in the second count would therefore be harmless since jurisdiction of the court rested on the first count. See Jordan v. State, 552 S.W.2d 478. The ground of error is overruled.

In another ground of error appellant asserts the jury charge on aggravated assault is fundamentally defective for authorizing conviction on a theory not alleged in the second count of the indictment. Again, the charge submitted the aggravated assault as a lesser included offense of the attempted murder alleged in the first count, and not under the allegations of the second count. Since the case was not submitted on the second count, it was not necessary to restrict the charge to that portion of the indictment. It was only necessary that the charge submit aggravated assault as a lesser included offense under the greater offense. Cf. Mitchell v. State, 543 S.W.2d 637. The ground of error is overruled.

We do, however, find the jury charge on aggravated assault, under which appellant was convicted, is fundamentally defective for authorizing a conviction on a theory not included in the attempted murder count of the indictment. That count alleged that appellant:

“with the specific intent to commit the offense of murder did then and there attempt to cause the death of Charles Robinson by shooting him with a gun, said attempt being by shooting at the said Charles Robinson with a gun and narrowly missing the said Charles Robinson which said act tended but failed to effect the commission of the offense intended;”

The aggravated assault paragraph of the jury charge, however, authorized a conviction under Y.T.C.A. Penal Code, Sec. 22.02 in conjunction with Sec. 22.01(a)(1), upon a finding that appellant caused bodily injury:

“Therefore, if you find and believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Jimmy Luera, did intentionally, knowingly or recklessly cause bodily injury to Charles Robinson by shooting at or in the direction of said Charles Robinson with a deadly weapon, to-wit, a gun, or if you find and believe from the evidence beyond a reasonable doubt that the defendant, Jimmy Luera, did, on the occasion in question, intentionally or knowingly threaten Charles Robinson with imminent bodily injury by shooting at or in the direction of said Charles Robinson with a deadly weapon, to-wit, a gun, but you further find and believe from the evidence, or have a reasonable doubt thereof, that the defendant did not intend to kill the said Charles Robinson, then you will find the defendant guilty of aggravated assault; if you have a reasonable doubt as to whether defendant is guilty of aggravated assault under the instructions given you, you will acquit the defendant of aggravated assault and consider whether or not defendant is guilty of the offense of reckless conduct.”

The first of the two theories submitted in this paragraph of the charge is not included within the acts constituting attempted murder as alleged in the indictment.¹ The indictment made no allegation that appellant caused bodily injury, nor did it make any allegation that would include that result. Cf. Mitchell v. State, supra.

Because the charge authorized a conviction on facts not included within the allegations of the indictment, it is fundamentally defective and the conviction must be reversed. See Young v. State, 605 S.W.2d 550; Garcia v. State, 574 S.W.2d 133.

The judgment is reversed and the cause remanded.

1 . Although not part of this case, we observe that this theory of aggravated assault also is not part of the second count of the indictment alleging aggravated assault, if that count does allege aggravated assault.