Plunkett v. State

580 S.W.2d 815, 1979 Tex. Crim. App. LEXIS 1454

• Court: Court of Criminal Appeals of Texas
• Decided: May 16, 1979
• Docket: 55078
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder in which the jury assessed punishment at fifty years.

It is only necessary to discuss one of appellant’s grounds of error. In his third ground of error appellant contends the court erroneously charged the jury on the offense alleged.

The indictment in relevant part alleges that appellant did:

“. . . intentionally and knowingly cause the death of an individual, April Dawn Peters, by striking her with his hands. . . . ”

V.T.C.A., Penal Code Sec. 19.02, which defines the offense of murder, in relevant part provides:

“(a) A person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual; [or]

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; . . . ”

Appellant was clearly charged under Sec. 19.02(a)(1), yet the trial court, in submitting the case to the jury, allowed them to find appellant guilty under either Sec. 19.-02(a)(1) or Sec. 19.02(a)(2). Although the court first correctly applied the law to the facts of the case under the theory alleged in the indictment, it then immediately thereafter included this paragraph in its instructions to the jury:

“You are instructed that to be guilty of murder, a defendant must have acted intentionally or knowingly in causing the death of the deceased. He must have intentionally or knowingly caused the death, or he must have intended to cause serious bodily injury and have committed an act clearly dangerous to human life that caused the death of the deceased. Unless defendant so acted intentionally or knowingly or with intent to cause serious bodily injury to the deceasedhe cannot be convicted of murder.

“Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Larry Plunkett, did cause the death of April Dawn Peters by striking her with his hands, but you have a reasonable doubt that the defendant did intentionally or knowingly cause death or that he intended to cause April Dawn Peters serious bodily injury, then you will acquit the defendant of murder, and will consider whether or not he is guilty of involuntary manslaughter.”

We find the jury charge on a theory not alleged in the indictment was fundamental error requiring a new trial, and sustain appellant’s third ground of error. In Morter v. State, Tex.Cr.App., 551 S.W.2d 715, the defendant was convicted of injury to a child on an indictment that alleged he had caused serious bodily injury. On appeal the conviction was reversed because the jury instructions authorized conviction if the evidence showed the defendant had caused serious physical deficiency or impairment, or deformity, which were means not alleged in the indictment. Robbery convictions were reversed for fundamentally defective jury charges authorizing convictions on theories not alleged in the indictments in 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, and Edmond v. State, Tex.Cr.App., 566 S.W.2d 609. In Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177, a conviction for burglary with intent to commit theft was reversed for fundamental error in the jury charge because it authorized a conviction for burglary with intent to commit a felony or theft even though no intent to commit a felony had been alleged in the indictment.

In this case the indictment alleged murder by intentionally or knowingly causing the deceased’s death, but the jury charge expanded on those allegations and authorized a conviction if appellant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the deceased’s death. This was fundamental error¹ and the conviction must be set aside.

The judgment is reversed and the cause remanded.

Before the court en banc.

1 . In this case the error was compounded by the prosecutor’s jury argument at the guilt stage of the trial which emphasized this theory for conviction. In opening his argument the prosecutor said:

“The first paragraph of the charge in this case defines murder. And there is primarily two definitions of murder, a person commits murder if he intentionally and knowingly causes the death of an individual. That means I can plot, plan, lay and wait and shoot somebody, knowingly and intentionally shoot them, that’s murder, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that caused the death of an individual. That’s the definition that applies to this case, doing an act clearly dangerous to health [sic] that results in death, and it’s just most assuredly murder.”

Later, in concluding his jury argument at the guilt stage, the prosecutor again urged this theory of conviction:

“When Larry Plunkett was inflicting the injuries on this photograph to April Dawn Peters, when he was beating that girl, when he caused the skull fracture to her head, did he do something that caused her death? Did he do something that caused her death? That’s murder, paragraph one, cause serious bodily injury and commit an act clearly dangerous to human life is murder just bigger than a goose. If it looks like a duck and walks like a duck and quacks like a duck, well, it’s just a duck. Thank you, ladies and gentlemen.”

(The “paragraph one” referred to by the prosecutor is the abstract statement of the law of murder and tracks Sec. 19.02(a)(1) and (2)).