Scott v. State

599 S.W.2d 618, 1980 Tex. Crim. App. LEXIS 1153

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape in which punishment was assessed at 99 years.

At the outset we note fundamental error that requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P. The jury charge authorized conviction on a theory not alleged in the indictment. This type of error is fundamental. Art. 36.19, V.A.C. C.P.

The indictment alleged, inter alia, that appellant committed aggravated rape by compelling the prosecutrix to submit to sexual intercourse by threat of death to be imminently inflicted on her. The jury charge, in contrast, authorized a conviction if appellant compelled submission to the rape either by threat of death or serious bodily injury to be imminently inflicted on her. This constituted an enlargement upon the allegations in the indictment since it authorized the jury to convict appellant upon finding facts that had not been alleged. See V.T.C.A., Penal Code Sec. 21.-03(a)(2). See and compare Lee v. State, Tex.Cr.App., 577 S.W.2d 736.

The judgment is reversed and the cause remanded.

Before the court en banc.

ON DENIAL OF STATE’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING WITHOUT WRITTEN OPINION