Whitlow v. State

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a building. Punishment, enhanced by one prior conviction, 1 was assessed by the jury at life.

Appellant complains that “the trial court committed fundamental error in its jury instruction which authorized conviction under a theory not contained in the indictment.”

Appellant was convicted for burglary of a habitation under V.T.C.A., Penal Code, Sec. 30.02(a). 2 The indictment in the instant case, omitting the formal parts, reads as follows:

“Ace Whitlow, on or about the 4th day of March, A.D.1976, and before the…