Fella v. State

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for voluntary manslaughter. The punishment was assessed at 17 years’ imprisonment.

At the outset we note as unassigned error in the interest of justice (see Article 40.09, Section 13, V.A.C.C.P.) that the charge of the trial court authorized the jury to find the appellant guilty of voluntary manslaughter on a theory not alleged in the indictment. The indictment alleges, in pertinent part:

“ . . . ALBERT ALLEN FELLA . did then and there unlawfully and while under the immediate influence of a sudden passion arising from an adequate cause,…