Colbert v. State
Decision Date | 20 May 1981 |
Docket Number | No. 2,No. 60505,60505,2 |
Citation | 615 S.W.2d 754 |
Parties | Wilbert COLBERT, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Bill Frizzell, Houston, for appellant.
Carol S. Vance, Dist. Atty., Michael C. Kuhn, and Frank Harmon, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.
Appeal is taken from a conviction for voluntary manslaughter. After finding appellant guilty, the jury assessed punishment at 12 years.
At the outset, we are confronted with unassigned error which requires reversal in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P. The record reflects that appellant had originally been indicted for murder, but the jury found him guilty of the lesser included offense of voluntary manslaughter. The indictment in the instant cause alleged in pertinent part that on February 5, 1976, appellant did:
"intentionally and knowingly cause the death of Joseph Francis by shooting him with a gun."
In the court's submission of the lesser included offense of voluntary manslaughter, in the paragraph under which appellant was convicted, applying the law to the facts, the court charged as follows:
The record thus reveals that appellant had been indicted for murder pursuant to V.T.C.A. Penal Code, Sec. 19.02(a)(1). However, the court's charge to the jury...
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