Martinez v. State

641 S.W.2d 526, 1982 Tex. Crim. App. LEXIS 1112

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

In its decision the appellate court for the Thirteenth Supreme Judicial District found fundamental error between the indictment and the jury charge. The jury charge on aggravated robbery permitted conviction on a theory not alleged in the indictment. This is analogous to Lee v. State, 577 S.W.2d 736 and Cumbie v. State, 578 S.W.2d 732.

I.

In this case the indictment alleged appellant exhibited a gun while the charge allowed conviction if appellant used or exhibited a gun. Just as one may exhibit a gun without using it, one may use a gun without exhibiting it. By providing “use or exhibit” in V.T.C.A., Penal Code Sec. 29-03(a)(2) the legislature obviously intended that both words be given effect; to hold one is wholly encompassed by the other would be to deny that legislative purpose. By allowing the jury to convict if appellant used or exhibited a gun, the court authorized conviction on a theory not alleged in the indictment. This constituted fundamental error. Lee and Cumbie, supra.

II.

Furthermore, the charge in this case also presents fundamental error for failure to submit either “in the course of committing theft” or the elements of theft in its application of the law to the facts. Evans v. State, 606 S.W.2d 880.

The judgment of the Court of Appeals is affirmed.

ONION, P.J., joins in part II only.