Lee v. State

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery in which punishment was assessed at 25 years.

At the outset we observe fundamental error that requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P. The jury charge authorized conviction on a theory not alleged in the indictment, and this type of error is fundamental. Art. 36.19, VACCP

The indictment alleged, inter alia, that appellant committed aggravated robbery by using and exhibiting a handgun and by placing the complaining witness in fear of imminent bodily injury and death. The jury charge, in…