Lowry v. State , 1979 Tex. Crim. App. LEXIS 1339 ( 1979 )

579 S.W.2d 477 (1979)

Kenneth John LOWRY, Appellant,
v.
The STATE of Texas, Appellee.

No. 56928.

Court of Criminal Appeals of Texas, Panel No. 3.

March 14, 1979. Rehearing Denied May 2, 1979.

James T. Stafford and Allen C. Isbell, Houston, on appeal only, for appellant.

Carol S. Vance, Dist. Atty., Michael C. Kuhn and Allen Stilley, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and DALLY, JJ.

Rehearing En Banc Denied May 2, 1979.

OPINION

ROBERTS, Judge.

In an unpublished per curiam opinion delivered December 7, 1977, we abated the present appeal from a conviction for aggravated rape, see V.T.C.A., Penal Code, Section 21.03, in order for the trial court to determine why an appellate brief had not been filed in the appellant's behalf. See Lowry v. State, 558 S.W.2d 898 (Tex.Cr. App.1977); see also Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970). Appellant's brief is now before us for our consideration and the appeal has been ordered reinstated.

Appellant asserts that the court's charge to the jury was fundamentally defective in that it instructs the jury that a verdict of guilty may be found upon a theory not alleged in the indictment. We agree and reverse the judgment of conviction.

Although the indictment alleged aggravated rape by "intentionally and knowingly by force and by threatening the imminent infliction of serious bodily injury and death," in its charge to the jury applying the law to the facts, the court instructed the jury under all theories of culpability under Section 21.03, supra. It is now well established that such an enlargement in the charge upon the allegations in the indictment constitutes fundamental error. Clements v. State, 576 S.W.2d 390 (Tex.Cr.App. 1979); Todd v. State, 576 S.W.2d 636 (Tex. Cr.App.1979); Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Jackson v. State, 576 S.W.2d 88 (Tex.Cr.App.1979); McGee v. State, 575 S.W.2d 563 (Tex.Cr.App.1979); Robinson v. State, 553 S.W.2d 371 (Tex.Cr. App.1977).

The judgment is reversed and the cause remanded.