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582 S.W.2d 466

Tedrick v. State

Court of Criminal Appeals of Texas · decided 1979-06-20

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

Decided 1979-06-20

¶1OPINION

DALLY, Judge.

¶2This is an appeal from a conviction for aggravated robbery. Punishment, enhanced by a prior felony conviction, is imprisonment for life.

¶3Appellant urges in a supplemental brief that the trial court’s charge contains fundamental error, in that it authorizes a conviction on a theory of aggravated robbery which is not alleged in the indictment.

¶4Sec. 29.03(a) of the penal code provides:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.”

¶5The indictment in this case alleged the offense of aggravated robbery only under Sec. 29.03(a)(2), supra. The trial court’s charge, however, authorized a conviction under either Sec. 29.03(a)(1) or Sec. 29.-03(a)(2). This was error. Appellant did not object to the charge, but an objection is not necessary to preserve the error because this Court has held in numerous cases that the error is fundamental. See e. g. Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

¶6*467The judgment must be reversed and the cause remanded.

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