Viduarri v. State

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed at life.

In his first ground of error appellant argues the jury charge should have included an instruction on the lesser included offense of rape by force. V.T.C.A., Penal Code Sec. 21.02(b)(1). The indictment alleged rape and aggravated rape by threats. V.T.C.A., Penal Code Secs. 21.02(b)(2) and 21.03(a)(2). Rape by force was not an included offense in this case, and a jury charge and conviction under that theory would have constituted fundamental error. See Lowry v. State, Tex.Cr.App., 579…