Rico v. State

707 S.W.2d 549

Opinions

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the misdemeanor offense of theft of property over the value of five dollars; the punishment is confinement in the county jail for six months and a fine of $1,000.

In his first ground of error the appellant asserts that the trial court committed reversible error by submitting to the jury a charge authorizing conviction on a theory not alleged in the indictment.

It was alleged that:

“NORCISO SANCHEZ RICO, hereinafter styled defendant, heretofore on or about the 7th day of June A.D., 1980, in the County of Potter and State aforesaid did then and there unlawfully appropriate property, to-wit: one bottle of wine, one ribeye steak and one round steak of at least the value of $5.00 but less than the value of $20.00 from the owner, James Meier, without the effective consent of the owner, and with intent to deprive the said owner of said property, the said Defendant committed the offense by acting together with Shanda Sue Sanders in that the said Defendant acted with the intent to promote and assist the commission of the offense by aiding the said Shanda Sue Sanders in the commission of the offense.”

The court instructed the jury that: “Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant either by his own conduct did then and there on or about the 7th day of June A.D., 1980, in the County of Potter and State of Texas unlawfully appropriate property, to-wit: one bottle of wine, one ribeye steak and one round steak of at least the value of $5.00 but less than the value of $20.00 from the owner, James Meier, without the effective consent of the owner, and with intent to deprive the said owner of said property, or, acting with intent to promote or assist the commission of the offense, aided Shanda Sue Sanders to commit the offense charged, as defined above, and that the said Shanda Sue Sanders did then and there on or about the 7th day of June A.D., 1980, in the County of Potter and State of Texas unlawfully appropriate property, to-wit: one bottle of wine, one ribeye steak and one round steak of at least the value of $5.00 but less than the value of $20.00 from the owner, James Meier, without the effective consent of the owner, and with intent to deprive the said owner of said property, you will find the defendant guilty.”

A party to an offense may be charged with the offense without alleging the facts which make the defendant a party to the offense and criminally responsible for the conduct of another; V.T.C.A. Penal Code, Section 7.01; Pitts v. State, 569 S.W.2d 898 (Tex.Cr.App.1978); but if the evidence supports a charge on the law of parties the court may charge on the law of parties even though there is no such allegation in the indictment or information. English v. State, 592 S.W.2d 949 (Tex.Cr.App.1980); Galvak v. State, 598 S.W.2d 624 (Tex.Cr.App.1979); LeDuc v. State, 593 S.W.2d 678 (Tex.Cr.App.1979); Pitts v. State, supra. However, in the instant case, the State, perhaps because it correctly anticipated the proof would show the appellant was guilty as a party to the offense only, charged him in the information with being a party to the offense committed by Shanda Sue Sanders.

Although appellant was only charged in the information with committing the offense as a party, the instructions to the jury allowed his conviction on the theory that he committed the offense by his own conduct. Even though there was no trial objection to the charge, it has been held that a charge which allows conviction for commission of an offense in a manner not alleged is fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979); Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979).

The judgment is reversed and the cause is remanded.

McCORMICK and MILLER, JJ., dissent.