Ethridge v. State
| Citation | 648 S.W.2d 306 |
| Decision Date | 13 April 1983 |
| Docket Number | No. 593-82,593-82 |
| Parties | David ETHRIDGE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Gerald Goynes, Denver, Colo., William C. Denton, Houston, for appellant.
Charles D. Houston, Bellville, Robert Huttash, State's Atty., and Alfred Walker, Asst. States Atty., State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of aggravated assault by the jury in Fayette County following change of venue from Waller County. Punishment was assessed by the court at eight (8) years' imprisonment. The indictment charged attempted murder in the first count. See V.T.C.A., Penal Code, §§ 19.02 and 15.02. Aggravated assault as defined by V.T.C.A., Penal Code, § 22.01, was charged in the second count. Both counts alleged the culpable mental states of "intentionally" and "knowingly."
Prior to trial the State elected to proceed on the first count of the indictment only. At the conclusion of the guilt stage of the trial, the court submitted the case to the jury on attempted murder with several lesser included offenses including aggravated assault.
Following conviction on the lesser included offense, the Austin Court of Appeals affirmed the conviction, 634 S.W.2d 382. We granted the appellant's Petition for Discretionary Review on the question of whether the court's charge as to aggravated assault was fundamentally defective.
Appellant concedes the evidence raised the issue of aggravated assault, which may be a lesser included offense of attempted murder. See Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.1976); Williams v. State, 622 S.W.2d 578 (Tex.Cr.App.1981). See also Burks v. State, 510 S.W.2d 321 (Tex.Cr.App.1974); Hart v. State, 581 S.W.2d 675 (Tex.Cr.App.1979). He argues the jury charge was fundamentally erroneous because it authorized conviction for aggravated assault upon a finding of the culpable mental state of "reckless" when such was not alleged in the first count of the indictment charging attempted murder. 1
V.T.C.A., Penal Code, § 22.01(a)(1) (Assault), provides:
V.T.C.A., Penal Code, § 22.02 (Aggravated Assault), provides:
"(3) uses a deadly weapon."
In submitting aggravated assault as a lesser included offense, the court utilized § 22.01(a)(1) and § 22.02(a)(3) and three culpable mental states. The charge provided in part:
"Now, if you find from the evidence beyond a reasonable doubt that on the occasion in question the Defendant, DAVID ETHRIDGE, did intentionally or knowingly or recklessly Cause bodily injury to BRYON JOHNSON by shooting him with a deadly weapon, to wit, a gun ...." (Emphasis supplied.)
There was no objection to the charge or any special requested instruction. See Articles 36.14 and 36.15, V.A.C.C.P. Thus appellant relies upon fundamental error. He contends the court authorized a conviction upon a theory not charged in the indictment by submitting the culpable mental state of "recklessly" in connection with the lesser included offense of aggravated assault when the indictment only alleged the culpable mental states of "intentionally" and "knowingly" with regard to the greater offense of attempted murder.
Recently in Rocha v. State, 648 S.W.2d 298 (Tex.Cr.App.1983) (Opinion on State's Motion for Rehearing), this court had occasion to consider an almost identical contention as now presented. Rocha was indicted for attempted murder, but was convicted by the jury of the lesser included offense of aggravated assault. The attempted murder indictment alleged the culpable mental states of "knowingly and intentionally." The court in its charge authorized Rocha's conviction for the lesser included offense of aggravated assault upon a finding of a culpable mental state of "intentionally or knowingly or recklessly."
Upon original submission a panel of this court considered unassigned error and held that the trial court's action constituted fundamental error because the charge authorized conviction for aggravated assault upon the finding of a culpable mental state, "recklessly," which was not alleged in the attempted murder indictment.
The panel opinion made clear that aggravated assault was a lesser included offense of attempted murder and that Rocha was entitled to a charge thereon since the evidence raised the same, and that if only the culpable mental states of intentionally and knowingly had been used in the charge on aggravated assault no error would have been presented. It was the inclusion of the additional culpable mental state of recklessness that triggered the reversal on unassigned error.
Appellant relies upon this panel opinion....
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