Ross v. State

• Decision Date: 06 December 1972
• Docket Number: No. 45404,45404
• Citation: Ross v. State, 487 S.W.2d 744 (Tex. Crim. App. 1972)
• Parties: Michael Don ROSS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 744

487 S.W.2d 744

Michael Don ROSS, Appellant, v.The STATE of Texas, Appellee.

No. 45404.

Court of Criminal Appeals of Texas.

Dec. 6, 1972.

Charles W. Tessmer, Ronald L. Goranson, Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Robert A Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for burglary with the intent to commit theft; the punishment, eight years imprisonment.

The indictment charges that the appellant'did by force, threats and fraud, break and enter a house . . .'

The jury was not charged on the theory of burglary alleged in the indictment, that it was committed by force, threats, fraud, or breaking and entering, but Only authorized the appellant's conviction if the appellant'did then and there enter a house then and there occupied and controlled by M. J. Sparks at night or in any manner enter a house then and there occupied and controlled by M. J. Sparks at any time, either day or night, and remain concealed therein with the intent in either case, then and there to fraudulently take therefrom corporeal personal property therein being and then belonging to the said M. J. Sparks . . .'

The charge erroneously authorized the appellant's conviction under a theory not charged in the indictment.Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177(1940), Sullivan v. State, 13 Tex.App. 462(1883);Weeks v. State, 13 Tex.App. 466(1883)andPowell v. State, 12 Tex.App. 238(1882).Even though there was no objection to the charge at the time of trial, the error was fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.SeeArticle 36.19, Vernon's Ann.C.C.P.;Fennell v. State, 424 S.W.2d 631(Tex.Cr.App.1968)and...