Leal v. State

Dec 30, 1981

13-81-056-CR (2043-CR)

Reporters:: ,
Before:: Bissett

OPINION

BISSETT, Justice.

This is аn appeal from murder convictions. Both defendants were tried jointly before a jury. They were each sentenced to thirteen years’ imprisonment. We reverse and remand.

In view of our action in this appeal, it is not necessary that we consider the defendants’ first point of error, wherеin it is claimed that the trial court erred in admitting photographs of the deceased which were taken after an аutopsy was performed.

Before this case went to trial, the defendants filed a motion to dismiss the indictment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the ground the time period provided in the Speedy Trial Act had laрsed. See Tex.Code Crim.Proc.Ann. art. 32A.02 (Vernon Supp. 1980-1981). Although the motion to dismiss the indictment was filed before commencement of the trial, there is nothing in the record which indicates that the defendants ever сalled the court’s attention to it. On the day the trial commenced, the defendants announced ready. They did not urge their motion to dismiss. The State contends that the defendants waived the provisions of the Speedy Trial Act. We agree.

The provisions of the Speedy Trial Act are waived if the defendant fails to move for discharge under the provisions оf the Act prior to trial. Tex.Code Crim.Proc. Ann. art. 32A.02, § 3 (Vernon Supp. 1980-1981). Although the defendants filеd a motion raising the Speedy Trial Act, they failed to pursue the motion to an adverse ruling. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍This, plus their announcement of ready on the first day of the trial, operated as a waiver of the provisions of the Speedy Trial Act. See Martinez v. State, 565 S.W.2d 70, 71 (Tex.Cr.App.1978). The defendants’ second ground of error, which cоmplains of the trial court’s failure to dismiss the indictment, is overruled.

We are compelled to consider an unassigned error. The indictment charged the defendants with murder in the following lаnguage:

“... RODOLFO LEAL CARLOS CAVAZOS

on or about the 15th day of January A. D. One Thousand Nine Hundred and Seventy-nine and anterior to the presentment of this indiсtment, in the County of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Cameron and State of Texas, did then and thеre unlawfully, intentionally and knowingly cause the death of JOSE AMAYA, by shoоting him with a gun, ...”

The court’s charge instructed the jury as follows:

“Now if you find and believe from the evidence beyond а reasonable doubt that on or about the 15th day of January, *868 1979, in Cameron County, Texas, the Defendants, Rodolfo Leal & Carlos Cavazos, did intentionally or knowingly cause the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍death оf Jose Amaya by shooting him with a gun or did then and there intend to cause serious bodily injury to the said Jose Amaya and with said intent to cause such injury did commit an act dearly dangerous to human life, to wit, shooting him with a gun, as alleged in the indictment, then you will find the Defendants guilty of Murder.

Unless you so find beyond a reasonable doubt, оr if you have a reasonable doubt as to whether ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Defеndants are guilty of Murder, then you will acquit them of Murder.” [Emphasis added].

The jury was authorized to convict the defendants on a theory not alleged in the indictment. Thus, there is a fatal varianсe between the indictment and the charge. Such is fundamentаl error requiring reversal. Colbert v. State, 615 S.W.2d 754, 755 (Tex.Crim.App.1981); Infante v. State, 612 S.W.2d 603, 604 (Tex.Crim.App.1981). The judgment of the trial cоurt is therefore reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.