McNiel v. State

599 S.W.2d 328, 1980 Tex. Crim. App. LEXIS 1176

• Court: Court of Criminal Appeals of Texas
• Decided: April 16, 1980
• Docket: 58443
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at 20 years’ imprisonment in the Department of Corrections. Appellant asserts that the trial court’s charge to the jury authorized a conviction on a theory different than that alleged in the indictment so that fundamental error is present. We agree and reverse.

The indictment alleged that appellant did “knowingly and intentionally place Hattie Hamm in fear of imminent bodily injury.” In his charge to the jury, however, the court authorized a conviction upon a finding that appellant did “intentionally, knowingly, or recklessly cause bodily injury to said Hattie Hamm or the defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death. . . . ”

As we stated in Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978),

“The trial court’s charge, which authorized a conviction for either of the two different modes of committing aggravated robbery when only one was alleged, constituted reversible error.”

The judgment is reversed, and the cause is remanded.

DALLY, J., dissents.

Before the court en bane.