Gutierrez v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

This is a petition for discretionary review brought by the State from the San Antonio Court of Appeals. Appellant was convicted of theft over $200 and assessed a punishment of five years’, probated. The Court of Appeals, 625 S.W.2d 58, reversed the conviction because of unassigned fundamental error in the jury charge. Specifically, they found that fundamental error occurred when the trial court charged the jury in the abstract on the defense of mistake of fact but did not thereafter apply that defense to the facts. Appellant…