658 SW2D 566 - Luera v. State

How this case has been cited

Cited by 7 later decisions — most recently August 2009

7 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

McCORMICK, Judge,

¶1dissenting.

¶2The majority’s holding today demonstrates once again the absurdity of the fundamental error doctrine and the course it has taken. From the early holdings of this Court that a charge authorizing conviction only for an offense not alleged in the indictment is fundamental error1 has emerged the rule that a charge may only authorize a conviction for the offense alleged in the indictment and no other. Somehow the word “only” has been shifted around.

¶3In the case at bar, the charge on the lesser offense included not only a proper charge on aggravated assault by use of a deadly weapon to threaten the victim, but also included a charge on aggravated assault by causing bodily injury. There was no evidence in the record to support causing bodily injury. Yet, there was no objection to the charge. There is no contention on appeal that appellant was prejudiced or harmed by the charge given. In fact, it would be absurd to assume that, under the facts of this case, the jury even considered that portion of the charge relating to aggravated assault by causing bodily injury.

¶4 *569Finally, it cannot be said that the charge, as given, was calculated to injure the rights of appellant. In fact, that portion of the charge which the majority holds to be fundamental error was clearly harmless to appellant in that it placed a greater burden on the prosecution than required. See Jones v. State, 141 S.W. 953 (Tex.Cr.App.1911).

¶5I dissent.

¶6Before the court en banc.

¶7. See, e.g., Peoples v. State, 548 S.W.2d 893 (Tex.Cr.App.1977), holding: “A charge is fundamentally defective if it erroneously and only authorizes conviction upon a theory not charged in the indictment.”