Jackson v. State
Decision Date | 28 March 1979 |
Docket Number | No. 3,No. 57682,57682,3 |
Citation | 578 S.W.2d 748 |
Parties | Willie Frank JACKSON, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
James P. Hopkins, Dallas, for appellant.
Jerry Spencer Davis, Dist. Atty., Greenville, Robert Huttash, State's Atty., Austin, for the State.
Before DALLY, W. C. DAVIS and CLINTON, JJ.
This is an appeal from a conviction for aggravated robbery; punishment was assessed at imprisonment for forty-nine years.
However, in addition to the means of committing robbery as it is alleged in the indictment, the court's charge authorized the appellant's conviction if the jury found the appellant ". . . recklessly caused bodily injury to the owner . . ." and ". . . caused serious bodily injury to Mrs. Kenneth Laucks . . ."
The indictment only alleges the offense under the provisions of V.T.C.A. Penal Code Sections 29.02(a)(2) and 29.03(a)(2), but the court's charge in addition to allowing a conviction under these provisions instructs the jury that it may find the appellant guilty under provisions of V.T.C.A. Penal Code, Sections 29.02(a)(1) and 29.03(a)(1). 1
A charge such as that submitted to the jury in this case has been held to be reversible error by the majority of this Court even though the appellant made no trial objections to the charge. 2 See, e. g., Gooden v. State, Tex.Cr.App., 576 S.W.2d 382 (1979) (Opinion on Appellant's Motion for Rehearing); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).
The author of this opinion and three other judges of this Court believe that in the absence of a trial objection this Court should examine the record to determine whether appellant was harmed by the erroneous charge and affirm the judgment if the appellant was not harmed. See Gooden v. State, supra, (Concurring Opinion on Motion for Rehearing and footnote 1 on the Motion for Rehearing), and see Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976) and the recent cases Williams v. State, Tex.Cr.App., 577 S.W.2d 241 (1979); Hill v. State, Tex.Cr.App., 576 S.W.2d 642 (1979); Clements v. State, Tex.Cr.App., 576 S.W.2d 390 (1979). However, the law of this State as expressed by the majority is to the contrary.
The judgment is reversed and the cause remanded.
1 V.T.C.A. Penal Code, Sections 29.02 and 29.03 read as follows:
2 Many cases such as this have recently come before this Court. It is difficult to understand why so many courts are submitting charges to juries which allow the juries to convict defendants for offenses...
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