645 S.W.2d 885 | Tex. App. | 1983
Cipriano Ramon ALMANZA, Jr., Appellant,
v.
The STATE of Texas, State.
Court of Appeals of Texas, Fort Worth.
*886 Lee Ann Dauphinot, Fort Worth, for appellant.
Tim Curry, Dist. Atty. and James J. Heinemann, Asst. Dist. Atty., Fort Worth, for appellee.
Before the court en banc.
OPINION ON MOTION FOR REHEARING
FENDER, Chief Justice.
Our prior opinion is withdrawn.
We reverse and remand.
Although many recent opinions have offhandedly dismissed the changing of "and" in the indictment to "or" in the court's charge, such approach is dangerous and usually fatal in matters where aggravation or jurisdiction is involved. In the instant cause of aggravated rape the indictment joined the allegation of threats of death to the standard form allegation of rape by the word and. In the court's charge the aggravation feature was disjoined from rape by the word or. Such constitutes fundamental error. Messenger v. State, 638 S.W.2d 883 (Tex.Cr.App.1982).
The cause is reversed and remanded to the trial court for further proceedings under this indictment.