Rocha v. State

648 S.W.2d 298, 1983 Tex. Crim. App. LEXIS 989

• Court: Court of Criminal Appeals of Texas
• Decided: April 13, 1983
• Docket: 62893
• Status: Published

Opinions

OPINION

TEAGUE, Judge.

This is an appeal from a conviction for committing the offense of aggravated assault on an indictment charging the offense of attempted murder. Punishment was assessed by the jury at 10 years’ confinement in the penitentiary but it recommended probation.

At the outset we note fundamental error which must be considered in the interest of justice. See Art. 40.09(13), V.A.C.C.P.

The indictment in this cause alleged that the appellant did:

then and there knowingly and intentionally attempt to cause the death of Victor Velasquez, an individual, by shooting the said Victor Velasquez with a handgun, said attempt amounting to more than mere preparation that tended but failed to effect the commission of the offense intended. (Emphasis Added).

In the court’s submission of the lesser included offense of aggravated assault, in the paragraph under which appellant was convicted, applying the law to the facts, the court instructed the jury as follows:

Now if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there intentionally or knowingly or recklessly, by the use of a firearm, if any, cause bodily injury to Victor Velasquez, or if you find from the evidence beyond a reasonable doubt that the defendant, Jesse Albert Rocha, at the time and place alleged in the indictment, did then and there knowingly or intentionally or recklessly cause serious bodily injury to the said Victor Velasquez, then you will find the defendant guilty of the offense of aggravated assault and so say by your verdict. (Emphasis Added).

A person commits the offense of aggravated assault if he intentionally, knowingly or recklessly causes serious bodily injury to another, or if he commits an assault by using a deadly weapon. See V.T.C.A. Penal Code, Secs. 22.01(a)(1), 22.02(a)(4). A firearm is a deadly weapon. V.T.C.A. Penal Code, Sec. 1.07(11)(A).

It is fundamental error for a trial court to authorize a conviction on a theory not alleged in the charging instrument. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App. 1977). A jury charge which authorizes conviction on the finding of a culpable mental state not alleged in the charging instrument is fundamentally defective. Hutchins v. State, 590 S.W.2d 710 (Tex.Cr.App.1979).

Though the appellant was charged with the primary offense of attempted murder, nevertheless, the trial court instructed the jury on the lesser included offense of aggravated assault. This it was permitted to do. However, it was not permitted to instruct the jury that a conviction was authorized on the finding of a culpable mental state not alleged in the indictment. Hutch-ins, Id. Recklessly was a culpable mental state not alleged in the charging instrument. When the trial court placed in the application paragraph the non-alleged culpable mental state of recklessly, it committed fundamental and reversible error. See also Young v. State, 605 S.W.2d 550 (Tex. Cr.App.1980); Colbert v. State, 615 S.W.2d 754 (Tex.Cr.App.1981); Deitch v. State, 617 S.W.2d 695 (Tex.Cr.App.1981); Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.1978); and Fella v. State, 573 S.W.2d 548 (Tex.Cr. App.1978). Reversal is therefore required.¹

The judgment is reversed and the cause remanded.

1 . By our holding, we do not overlook the fact that it was the appellant who requested the lesser offense charge of aggravated assault, and that the appellant did not make any objections to the charge as given. However, we believe that the appellant’s attorney, Randolph Scott, well stated the matter when he argued: “... this charge is drawn by the Judge. It is not drawn by the attorneys.” See also Art. 36.14, V.A.C.C.P.