Garcia v. State, No. 56470

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: PHILLIPS; DALLY
• Citation: 574 S.W.2d 133
• Parties: Ernest GARCIA, Jr., Appellant, v. The STATE of Texas, Appellee
• Docket Number: No. 56470,No. 2
• Decision Date: 13 December 1978

Page 133

574 S.W.2d 133 Ernest GARCIA, Jr., Appellant,
v.
The STATE of Texas, Appellee. No. 56470. Court of Criminal Appeals of Texas, Panel No. 2. Dec. 13, 1978.

H. Thomas Hirsch, Odessa, for appellant.

John R. Hollums, Dist. Atty., Floydada, for the State.

Before ODOM, PHILLIPS and DALLY, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from convictions for voluntary manslaughter (2) and aggravated assault (2). Punishment was assessed at 10 years' imprisonment for each offense.

At the outset we note as unassigned error in the interest of justice (see Article 40.09, Section 13, V.A.C.C.P.) fundamental error in the court's charge which mandates the reversal of appellant's conviction

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for the voluntary manslaughter of both Carlos Mendoza and Juan Mendoza. The indictment charged that the appellant "intentionally and knowingly cause(d) the death of an individual, Carlos Mendoza, by shooting him with a gun, . . . ." The same allegation is in the indictment with respect to Juan Mendoza. That portion of the court's charge which instructs the jury by applying the law to the facts of the case on both murder and voluntary manslaughter provided the jury with the alternative theory of murder provided for under V.T.C.A., Section 19.02(a)(2), i. e., "or did then and there intend to cause serious bodily injury to the said Carlos Mendoza and with said intent to cause such injury did commit an act clearly dangerous to human life, to wit, shooting at Carlos Mendoza with a gun and causing the death of the said Carlos Mendoza, . . . ." The providing of an alternative theory for the commission of a charged offense in the court's charge which is not alleged in the indictment constitutes fundamental error. See Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371.

The error created by the providing of an alternative theory upon which the jury could find the appellant committed murder is not rendered harmless or in any other way mitigated merely because the jury was at the same time instructed, under the instruction on voluntary manslaughter, on the "defensive" issue of "the immediate influence of sudden passion arising from an adequate cause." Paige v. State, Tex., 573 S.W.2d 16 (1978); Braudrick v. State, Tex.Cr.App., 572 S.W.2d 709 (1978). The State is still obligated to prove beyond a reasonable doubt that the appellant committed the offense of murder and the provision of alternative theories to enable the jury to make that finding suffers the same fatal defect as the other cases in which this Court has found fundamental error to exist. See Armstead v. State, Tex.Cr.App., 573 S.W.2d 231 (1978); Smith v. State, Tex.Cr.App., 570 S.W.2d 958; Plunkett v. State, Tex.Cr.App., --- S.W.2d ---- (No. 55,078, delivered November 15, 1978); Brewer v. State, Tex.Cr.App., 572 S.W.2d 940 (1978 rehearing denied, November 15, 1978).

The judgment of conviction finding the appellant guilty of voluntary manslaughter of Carlos Mendoza and Juan Mendoza is hereby reversed and dismissed.

Regarding the remaining...