Deitch v. State
Decision Date | 24 June 1981 |
Docket Number | No. 1,No. 60591,60591,1 |
Citation | 617 S.W.2d 695 |
Parties | Julius L. DEITCH, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Clyde W. Woody, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough, Ned Morris, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, DALLY and TEAGUE, JJ.
This is an appeal from a conviction for the offense of voluntary manslaughter; the punishment is imprisonment for twenty years.
The appellant urges in a supplemental brief that the trial court's charge contains fundamental error, in that it authorizes a conviction for the lesser included offense of voluntary manslaughter on a theory of murder that is not alleged in the indictment.
In Young v. State, 605 S.W.2d 550 (Tex.Cr.App.1980), as in this case, the defendant was indicted for murder, V.T.C.A. Penal Code, Section 19.02(a)(1), and found guilty of voluntary manslaughter. In that case a charge 1 quite similar to the charge submitted in this case 2 was considered in the interest of justice, Art. 40.09, Sec. 13, V.A.C.C.P., and was held fundamentally defective. It was said:
V.T.C.A. Penal Code, Sec. 19.04(a) provides:
"A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of a sudden passion arising from an adequate cause."
V.T.C.A. Penal Code, Sec. 19.02(a)(1) and (2) provide:
Young v. State, supra, is controlling of our decision in this case.
The judgment is reversed and the cause is remanded.
1 The charge submitted in Young v. State, supra, reads:
"If you find and believe from the evidence beyond a reasonable doubt that on or about the 22nd day of May, 1976, in Hidalgo County, Texas, the defendant, Lonnie M. Young, did intentionally or knowingly cause the death of James Graham by shooting him with a firearm, to wit, a gun, or did then and there intend to cause serious bodily injury to the said James Graham and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit, shooting at James Graham with a gun and causing the death of the said James Graham, but you further find and believe from all the facts and circumstances in evidence in the case, or you have a...
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