McGee v. State

Court of Criminal Appeals of Texas

McGee v. State

575 S.W.2d 563, 1979 Tex. Crim. App. LEXIS 1251

CourtCourt of Criminal Appeals of Texas

DecidedJanuary 17, 1979

Docket55436

StatusPublished

Cited by4 cases

This text of 575 S.W.2d 563 (McGee 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

McGee v. State, 575 S.W.2d 563, 1979 Tex. Crim. App. LEXIS 1251 (Tex. 1979).

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Opinion

*564 OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery in which punishment was assessed at 15 years.

At the outset we note fundamental error that must be considered in the interest of justice. Art. 40.09(13), V.A.C.C.P. Although the indictment alleged robbery by intentionally and knowingly threatening and placing the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol, in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under V.T.C.A., Penal Code Secs. 29.02 and 29.03. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. E. g., Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939.

The judgment is reversed and the cause remanded.

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*564 OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery in which punishment was assessed at 15 years.

At the outset we note fundamental error that must be considered in the interest of justice. Art. 40.09(13), V.A.C.C.P. Although the indictment alleged robbery by intentionally and knowingly threatening and placing the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol, in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under V.T.C.A., Penal Code Secs. 29.02 and 29.03. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. E. g., Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939.

The judgment is reversed and the cause remanded.

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Bluebook (online)

575 S.W.2d 563, 1979 Tex. Crim. App. LEXIS 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgee-v-state-texcrimapp-1979.

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