Martinez v. State

*527OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

In its decision the appellate court for the Thirteenth Supreme Judicial District found fundamental error between the indictment and the jury charge. The jury charge on aggravated robbery permitted conviction on a theory not alleged in the indictment. This is analogous to Lee v. State, 577 S.W.2d 736 and Cumbie v. State, 578 S.W.2d 732.

I

In this case the indictment alleged appellant exhibited a gun while the charge allowed conviction if appellant used or exhibited a gun. Just as one may exhibit a gun without using it, one may use a…