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599 S.W.2d 328

McNiel v. State

Court of Criminal Appeals of Texas

Decided April 16, 1980

Court of Criminal Appeals of Texas · decided 1980-04-16

Cited by 2 later decisions — most recently March 1985

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 24th day of July, 1975 in Victoria County, Texas, the defendant, John Calvin Stone, did, without the effective consent of C. R. Callis, the owner, take and exercise control over the corporeal personal property of C. R. Callis, to-wit, money, from the possession of C. R. Cal-lis, with intent then and there to deprive C. R. Callis of said money, and that said defendant, in so doing, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner 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 caused serious bodily injury to C. R. Callis or defendant used or exhibited a deadly weapon, to-wit, a gun, then you will find defendant guilty of aggravated robbery as charged in the indictment.””

quoted by 1 later decision, including Stone v. State

Relies on Jones v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1980-04-16

View the full empirical analysis of this case →

¶1OPINION

ROBERTS, Judge.

¶2This is an appeal from a conviction for aggravated robbery. Punishment was assessed at 20 years’ imprisonment in the Department of Corrections. Appellant asserts that the trial court’s charge to the jury authorized a conviction on a theory different than that alleged in the indict*329ment so that fundamental error is present. We agree and reverse.

¶3The indictment alleged that appellant did “knowingly and intentionally place Hattie Hamm in fear of imminent bodily injury.” In his charge to the jury, however, the court authorized a conviction upon a finding that appellant did “intentionally, knowingly, or recklessly cause bodily injury to said Hattie Hamm or the defendant then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death. . . . ”

¶4As we stated in Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978),

“The trial court’s charge, which authorized a conviction for either of the two different modes of committing aggravated robbery when only one was alleged, constituted reversible error.”

¶5The judgment is reversed, and the cause is remanded.

¶6DALLY, J., dissents.

¶7Before the court en bane.

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