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578 S.W.2d 736

Gonzales v. State

Court of Criminal Appeals of Texas

Decided March 28, 1979

Court of Criminal Appeals of Texas · decided 1979-03-28

Cited by 1 later decisions — most recently November 1980

1 state decisions

Key passage — most relied on by later courts

“"Now, if you find from the evidence, beyond a reasonable doubt, that the defendant, DONALD RAY MORRIS, acting either alone or with another person, or persons, on or about the 17th day of September, 1975, in Hunt County, Texas, did then and there while in the course of committing theft, as that term is defined to you in this charge, and with intent to obtain or maintain control of the property of Mary Lou Anderson to-wit: lawful money of the United States without the effective consent of the said Mary Lou Anderson, of said property, did then and there intentionally or knowingly threaten or place the said Mary Lou Anderson in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant, acting either alone or with another person or persons, used or exhibited a deadly weapon, namely a firearm, then, you will find the defendant, DONALD RAY MORRIS guilty of aggravated robbery, as charged in the indictment. If you do not so find and believe from the evidence, beyond a reasonable doubt, then, you will find the defendant not guilty of aggravated robbery." (Emphasis added).”

quoted by 1 later decision, including Morris v. State

“"The indictment alleged, inter alia, that appellant committed aggravated robbery by using and exhibiting a handgun and by placing the complaining witness in fear of imminent bodily injury and death. 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 finding facts that had 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...."”

quoted by 1 later decision, including Morris v. State

Relies on Robinson v. State · Davis v. State · Gooden v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-03-28

View the full empirical analysis of this case →

¶1OPINION

TOM G. DAVIS, Judge.

¶2Appeal is taken from a conviction for the offense of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The appellant pled true to the second and third paragraphs of the indictment alleging two prior felony convictions. The court then assessed punishment at life. V.T.C.A.Penal Code, Sec. 12.42(d).

¶3The appellant in his brief raises nine grounds of error. The State has filed an able brief responding to each of the contentions raised by the appellant and in addition has called our attention to a possible fundamental error in the charge.

¶4The indictment in the instant case alleges in pertinent part that the appellant:

“while in the course of committing theft and with intent to obtain and maintain control of property of Delfino Motta, to wit: United States money, did then and there by using and exhibiting a deadly weapon, to wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury, intentionally and knowingly threaten Delfino Motta with imminent bodily injury and death and intentionally and knowingly place Delfino Motta in *737fear of imminent bodily injury and death. . . ."

¶5In Paragraph V of the charge, the jury was instructed as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 22nd day of December, 1976, in Nue-ces County, Texas, the Defendant, Frank Gonzales, Jr., while in the course of committing theft and with intent to obtain and maintain control of property of Delfi-no Motta, to wit: United States money, did then and there by using and exhibiting a deadly weapon, to wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury, intentionally and knowingly threaten Delfino Motta with imminent bodily injury and death and intentionally and knowingly place Delfino Motta in fear of imminent bodily injury and death, or if you find from the evidence beyond a reasonable doubt that while in the course of committing theft and with intent to obtain and maintain control of property of Delfino Motta, to wit: United States money, the Defendant caused serious bodily injury to Delfino Motta, then you will find the Defendant guilty of aggravated robbery as charged in the indictment.” [Emphasis supplied.]

¶6The instruction clearly authorizes a conviction on the basis of a theory not charged in the indictment. There was no objection to this charge at the time of trial. The State in its brief urges that under Williams v. State, Tex.Cr.App., 535 S.W.2d 352, the charge is not fundamentally defective. This Court in numerous recent cases held that a charge which authorizes a conviction on a theory not alleged in the indictment is fundamentally defective and a reversal is mandated on direct appeal. See e. g., Gooden v. State, Tex.Cr.App., 576 S.W.2d 382; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Edmond v. State, Tex.Cr.App., 566 S.W.2d 609; Jones v. State, Tex.Cr.App., 566 S.W.2d 939; Smith v. State, Tex.Cr.App., 570 S.W.2d 958; Brewer v. State, Tex.Cr.App., 572 S.W.2d 940; Armstead v. State, Tex.Cr.App., 573 S.W.2d 231; Johnson v. State, Tex.Cr.App., 573 S.W.2d 778; Cleland v. State, Tex.Cr.App., 575 S.W.2d 296; Fella v. State, Tex.Cr.App., 573 S.W.2d 548; Bridges v. State, Tex.Cr.App., 574 S.W.2d 143; Donald v. State, Tex.Cr. App., 574 S.W.2d 119; Moore v. State, Tex.Cr.App., 574 S.W.2d 553.

¶7The holdings in the foregoing cases require reversal of this cause.

¶8The judgment is reversed and the cause is remanded.

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