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579 S.W.2d 477

Lowry v. State

Court of Criminal Appeals of Texas

Decided March 14, 1979

Court of Criminal Appeals of Texas · decided 1979-03-14

Cited by 5 later decisions — most recently March 1985

5 state decisions

Key passage — most relied on by later courts

“Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that on or about the 11th day of August, A.D. 1980, in the County of Harris and State of Texas, the defendant, Augustine Junior Blanco, either acting alone or with Juan Rivera Roman as a party, as that term is hereinbefore defined, did then and there intentionally or knowing by force, that overcame such earnest resistance that might reasonably have been expected under the circumstances, compel Linda Catalina Saladana, a female not the wife of Juan Rivera Roman, to submit to or participate in sexual intercourse with Juan Rivera Roman, without her consent; or the said Augustine Junior Blanco did then and there intentionally or knowingly by threatening imminent infliction of serious bodily injury and death, that would prevent resistance by a woman or ordinary resolution, compel Linda Catalina Saldana, a female not the wife of Juan Rivera Roman, to submit to or participate in sexual intercourse with Juan Rivera Roman, without her consent, you will find the defendant Augustine Junior Blanco, guilty of the offense of aggravated rape and so say by your verdict; but if you do not so find, or if you have a reasonable doubt thereof you will acquit the defendant, Augustine Junior Blanco and say by your verdict “not guilty.” (Emphasis ours)”

quoted by 1 later decision, including Blanco v. State

Relies on Robinson v. State · Steel v. State · Jackson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-03-14

View the full empirical analysis of this case →

¶1 OPINION

ROBERTS, Judge.

¶2 In an unpublished per curiam opinion delivered December 7, 1977, we abated the present appeal from a conviction for aggravated rape, see V.T.C.A., Penal Code, Section 21.03, in order for the trial court to determine why an appellate brief had not been filed in the appellant’s behalf. See Lowry v. State, 558 S.W.2d 898 (Tex.Cr.App.1977); see also Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970). Appellant’s brief is now before us for our consideration and the appeal has been ordered reinstated.

¶3 Appellant asserts that the court’s charge to the jury was fundamentally defective in that it instructs the jury that a verdict of guilty may be found upon a theory not alleged in the indictment. We agree and reverse the judgment of conviction.

¶4 Although the indictment alleged aggravated rape by “intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death,” in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under Section 21.03, supra. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. Clements v. State, 576 S.W.2d 390 (Tex.Cr.App.1979); Todd v. State, 576 S.W.2d 636 (Tex.Cr.App.1979); Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Jackson v. State, 576 S.W.2d 88 (Tex.Cr.App.1979); McGee v. State, 575 S.W.2d 563 (Tex.Cr.App.1979); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

¶5 The judgment is reversed and the cause remanded.

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