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591 S.W.2d 497

Zuckerman v. State

Court of Criminal Appeals of Texas

Decided December 5, 1979

Court of Criminal Appeals of Texas · decided 1979-12-05

Cited by 2 later decisions — most recently May 1988

2 state decisions

Key passage — most relied on by later courts

“Now if you find from the evidence beyond a reasonable doubt that on or about the 5th day of March, 1986, in Matagorda County, Texas, the defendant, Rhonda Bryan Scott, did then and there intentionally and knowingly cause the death of an individual, Leslie Wayne Scott, by shooting him with a gun, in that Rhonda Bryan Scott, acting with specific intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid, Ricci Shay Pozzi to commit the offense and Ricci Shay Pozzi, acting with specific intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided, or attempted to aid Charles Eameal Brannan to commit the offense, and on or about the 5th day of March, 1986, in Matagorda County, Texas, Charles Eameal Brannan, intentionally and knowingly caused the death of Leslie Wayne Scott by shooting him with a gun, then you will find the defendant, Rhonda Bryan Scott, guilty of murder as charged in the indictment.”

quoted by 1 later decision, including Scott v. State

Applies TX PE § 30.02

Relies on Zuckerman v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-12-05

View the full empirical analysis of this case →

¶1OPINION

CLINTON, Judge.

¶2Appellant entered a plea of not guilty before a jury to the offense of burglary of a habitation. V.T.C.A. Penal Code, § 30.02. He was convicted, and the jury assessed punishment at imprisonment for 10 years (probated).

¶3The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09, § 9, V.A.C.C.P., and there is no showing of indigency. But as in the companion case of Zuckerman v. State, 591 S.W.2d 495 (Tex.Cr.App., 1979), we now find fundamental error that requires our review in the interest of justice under Article 40.09, § 13, V.A.C.C.P. The prior opinion is withdrawn.

¶4It appears from the jury charge in this case that appellant was tried jointly with Frederick Everett Zuckerman, who was charged in a separate indictment. In the paragraph of the court’s charge that applied the law to the facts, the jury was instructed:

“Now, if you find from the evidence beyond a reasonable doubt that the Defendants, Frederick Everett Zuckerman and Michael Vincent Zuckerman, or either of them, in Harris County, Texas, on or about December 21, 1977, did enter a building then and there occupied, controlled and in the possession of Gloria J. McKinzie, hereinafter called owner, without the effective consent of said owner, and that such building was then and there an enclosed structure intended for use or occupation as a habitation, as that term has been defined, and that the Defendants, or either of them, at the time of such entry, if any there was, had the intent then and there to take and exercise control over the corporeal personal property therein being and owned and belonging to said owner, without the effective consent of said owner, with intent to deprive the owner of said property, then you will find the Defendants, or either of . them, guilty as charged in the indictments.
“Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will ac*498quit the Defendants, or either of them.” (Emphasis added.)

¶5For the same reasons given in Zuckerman, supra, the jury charge is fundamentally defective.

¶6The judgment is reversed and the cause remanded.

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