Young v. State

605 S.W.2d 550, 1979 Tex. Crim. App. LEXIS 1569

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for voluntary manslaughter on an indictment for murder. Punishment was assessed at five years.

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

The indictment in this case alleged that appellant did:

“... knowingly and intentionally cause the death of an individual, James Graham, by shooting him with a gun.”

This alleged murder under V.T.C.A., Penal Code Sec. 19.02(a)(1).

In the court’s submission of the lesser included offense of voluntary manslaughter, in the paragraph under which appellant was convicted, applying the law to the facts, the court charged:

“If you find and believe from the evidence beyond a reasonable doubt that on or about the 22nd day of May, 1976, in Hidalgo County, Texas, the defendant, Lonnie M. Young, did intentionally or knowingly cause the death of James Graham by shooting him with a firearm, to wit, a gun, or did then and there intend to cause serious bodily injury to the said James Graham and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit, shooting at James Graham with a gun and causing the death of the said James Graham, but you further find and believe from all the facts and circumstances in evidence in the case, or you have a reasonable doubt thereof, that the defendant, in killing the deceased, if he did, acted under the immediate influence of sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter.”

This charge authorized a conviction under theories of voluntary manslaughter pursuant to V.T.C.A., Penal Code Sec. 19.04(a)¹ coupled with both Sec. 19.02(a)(1) and Sec. 19.02(a)(2), whereas the indictment was drafted under Sec. 19.02(a)(1) only. Thus, the jury was authorized to convict appellant under a theory not included in the indictment. Under this Court’s holdings in Garcia v. State, Tex.Cr.App., 574 S.W.2d 133, and Fella v. State, Tex.Cr.App., 573 S.W.2d 548, reversal is required.

The judgment is reversed and the cause remanded.

Before the court en banc.

1 . Sec. 19.04(a) provides:

“A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of a sudden passion arising from an adequate cause.”

Sec. 19.02(a)(1) and (2) provide:

“A person commits an offense if he:

(1) intentionally and 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 ....”