McIntosh v. State , 1985 Tex. App. LEXIS 6529 ( 1985 )

HOYT, Justice,

dissenting opinion

I respectfully disagree with the majority regarding their holding on appellant’s second ground of error which I believe is dispositive in this case. The reasoning and holding in Carpenter v. State, 551 S.W.2d 724 (Tex.Crim.App.1977), and Gordon v. State, 689 S.W.2d 434 (Tex.Crim.App., 1984), are still the law.

An alleged fundamentally defective charge requires proof of a two-pronged nature: first, the omission of an “essential element,” and second, the omission of that element from the application paragraph. Gordon, supra. In Carpenter, the court addressed the identical question and concluded that the phrase, “with intent to prevent liberation,” was not only an “essential element,” but also, its omission was fundamental error. A jury cannot be allowed to infer that the appellant intended to prevent liberation because that element must be proved “beyond a reasonable doubt.” Appellant’s second ground of error should be sustained, and the judgment reversed.