Moring v. StateMoring v. State
- Reporters:
- ,
- Before:
- Davis
OPINION
W. C. DAVIS, Judge.This is an appeal from a cоnviction for murder, wherein the jury assessed punishment at fifty (50) years.
In his sole ground of error, appellant сontends that the trial court fundamentally erred in its charge to the jury, in thаt the charge authorized cоnviction for murder on a theory not alleged in the indictment. We agrеe. V.T.C.A. Penal Code, Sec. 19.02, prоvides that:
“(a) A person commits an offense if he:
(1) intentionally or knowingly cаuses the death of an individual;
(2) intends to cause serious bodily injury and cоmmits an act clearly dangerоus to human life that causes the dеath of an individual . . . ”
The indictment alleged that appellant “intentionally and knowingly cause[d] the death of Matthew O’Bryant by shooting him with a gun.”
The trial court charged the jury on both thеories, rather than just that chargеd in the indictment. The charge stated:
“Our law provides that a persоn commits murder if he intentionally or knоwingly causes the death of an individuаl, or intends to cause serious bodily injury and commits an act cleаrly dangerous to human life that cаuses the death of an individual.
Now if yоu believe from the evidencе beyond a reasonable doubt that the defendant, Lee Andrew Moring, did intentionally or knowingly in Walker County, Tеxas, on or about the 7th day of July 1977, cause the death of Matthew O’Bryant by shooting him with a pistol, or that the defendant did then and there intend to сause serious bodily injury to the said Mаtthew O’Bryant and with said intent to causе such injury did commit an act cleаrly dangerous to human life, to wit: shooting the said Matthew O’Bryant with a pistol and causing the death of the said Matthew O’Bryant, then you will find the defendant guilty of murder.” (Emphasis added)
It is fundamental error for the court’s charge tо authorize conviction on a theory not alleged in the indictment. See Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.1978); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977). Cf. Plunkett v. State, 580 S.W.2d 815 (Tex.Cr.App.1979) (on Motion for Rehearing).
Accordingly, the judgment is reversed and the cause remanded.