McGee v. State , 1979 Tex. Crim. App. LEXIS 1251 ( 1979 )

575 S.W.2d 563 (1979)

Roger McGEE, Appellant,
v.
The STATE of Texas, Appellee.

No. 55436.

Court of Criminal Appeals of Texas, Panel No. 2.

January 17, 1979.

Elaine Brady, on appeal only, Houston, for appellant.

Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack C. Frels, Asst. Dist. Attys., Houston, for the State.

Before ODOM, PHILLIPS and DALLY, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery in which punishment was assessed at 15 years.

At the outset we note fundamental error that must be considered in the interest of justice. Art. 40.09(13), V.A.C.C.P. Although the indictment alleged robbery by intentionally and knowingly threatening and placing the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol, in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under V.T.C.A., Penal Code Secs. 29.02 and 29.03. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. E. g., Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Jones v. State, Tex.Cr.App., 566 S.W.2d 939.

The judgment is reversed and the cause remanded.