Williams v. State

Court of Criminal Appeals of Texas

Williams v. State

612 S.W.2d 934, 1981 Tex. Crim. App. LEXIS 934

CourtCourt of Criminal Appeals of Texas

DecidedMarch 18, 1981

Docket65970

StatusPublished

Cited by15 cases

This text of 612 S.W.2d 934 (Williams v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Williams v. State, 612 S.W.2d 934, 1981 Tex. Crim. App. LEXIS 934 (Tex. 1981).

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Opinions

[935]*935OPINION

TEAGUE, Judge.

This is an appeal from a conviction for robbery in which punishment was assessed at 25 years. Counsel filed a frivolous appeal brief but, at the outset, we observed 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, and error of this type is fundamental. Art. 36.19, V.A.C.C.P.

The indictment alleged, inter alia, that appellant committed robbery by “placing the complaining witness in fear of imminent bodily injury.” The jury charge, in contrast, authorized a conviction if appellant either “threatened or placed” the complaining witness in fear of imminent bodily injury or death. This constituted an enlargement upon the allegations in the indictment since it authorized the jury to convict appellant upon the finding of facts that have not been alleged. See V.T.C.A., Penal Code, Sec. 29.02(a)(2). It is now well established that such error is fundamental. E. g., Lee v. State, 577 S.W.2d 736 (Tex.Cr.App.1979); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). It is essential that trial judges not deviate from the allegations in the indictment when drafting that portion of the charge that applies the law to the facts of the case if such errors as this are to be avoided.

The judgment is reversed and the cause remanded.

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[935]*935OPINION

TEAGUE, Judge.

This is an appeal from a conviction for robbery in which punishment was assessed at 25 years. Counsel filed a frivolous appeal brief but, at the outset, we observed 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, and error of this type is fundamental. Art. 36.19, V.A.C.C.P.

The indictment alleged, inter alia, that appellant committed robbery by “placing the complaining witness in fear of imminent bodily injury.” The jury charge, in contrast, authorized a conviction if appellant either “threatened or placed” the complaining witness in fear of imminent bodily injury or death. This constituted an enlargement upon the allegations in the indictment since it authorized the jury to convict appellant upon the finding of facts that have not been alleged. See V.T.C.A., Penal Code, Sec. 29.02(a)(2). It is now well established that such error is fundamental. E. g., Lee v. State, 577 S.W.2d 736 (Tex.Cr.App.1979); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). It is essential that trial judges not deviate from the allegations in the indictment when drafting that portion of the charge that applies the law to the facts of the case if such errors as this are to be avoided.

The judgment is reversed and the cause remanded.

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612 S.W.2d 934, 1981 Tex. Crim. App. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-state-texcrimapp-1981.

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