Opinion
No. 65970.
March 18, 1981.
Appeal from the 258th Judicial District Court, Trinity County, Joe Ned Dean, J.
Joe Scott Evans, Groveton (Court-appointed), for appellant.
Joe L. Price, Dist. Atty. and Travis E. Kitchens, Jr., Asst. Dist. Atty., Groveton, Robert Huttash, State's Atty., Austin, for the State.
Before TOM G. DAVIS, McCORMICK, and TEAGUE, JJ.
OPINION
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.
I concur in the results of this opinion based on my concurring opinion in Mims v. State, 612 S.W.2d 933 (No. 62,257, March 18, 1981).