Banks v. State

OPINION

CLINTON, Judge.

This is an appeal from a conviction for aggravated rape in which the trial court assessed punishment at fifty years confinement in the Texas Department of Corrections, notwithstanding consideration of appellant’s sworn motion for probation.

At the outset, we are confronted with fundamental error in the jury charge that requires reversal in the interest of justice. Article 40.09(13), V.A.C.C.P.

Omitting the formal parts, the indictment charged that the appellant did:

“. . . intentionally and knowingly by force and by threatening the imminent infliction of serious bodily…