654 S.W.2d 539 | Tex. App. | 1983
Lead Opinion
Appellant was convicted by a jury of murder and her punishment was assessed by the jury at thirty years confinement in the Texas Department of Corrections.
Three grounds of error are raised by appellant in her brief before this court. No challenge is made by appellant of the sufficiency of the evidence to support her conviction.
Upon our initial review of the record in this case, we have noticed unassigned error of fundamental character which mandates reversal under the applicable decisions of the Texas Court of Criminal Appeals.
The indictment in this case alleged that the appellant did “... intentionally and knowingly cause the death of James Hermon by shooting him with a gun .... ” The paragraph of the court’s charge applying the law to the facts instructed the jury as follows:
Now, if you should find and believe from the evidence beyond a reasonable doubt that on or about the 7th day of July 1974 in Trinity County, Texas, the defendant, Doris Jean Smith, did intentionally or knowingly cause the death of an individual, James Hermon, as set forth in the indictment, then you will find the defendant guilty of murder.
Immediately following such charging paragraph the following instructions were given by the trial court to the jury:
You are instructed that to be guilty of murder a defendant must have acted intentionally or knowingly in causing the death of the deceased. He must have intentionally or knowingly caused the death or he must have intended to cause serious bodily injury and have committed an act clearly dangerous to human life that caused the death of the deceased. Unless the defendant so acted intentionally or knowingly or with intent to cause bodily injury to the deceased, he cannot be convicted of murder.
Therefore, since we are constrained to reverse the judgment and remand the cause for a new trial we will not address the grounds of error assigned by appellant.
The judgment is reversed and the cause is remanded.
Concurrence Opinion
concurring.
I agree with the result reached in this cause. I agree that there is fundamental error, and that this court may reverse a conviction for fundamental error without appellant having assigned any error. I do not agree, however, that it is our function to search the record on appeal for unassigned error other than fundamental error.