Payne v. State

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

The original panel opinion is withdrawn.

On original submission this conviction for deadly assault on a peace officer, where punishment was assessed at twenty (20) years’ imprisonment, was reversed and remanded on grounds that the court’s charge to the jury- was fundamentally defective since it allowed the jurors to convict appellant on a theory not alleged in the indictment.

The offense of deadly assault on a peace officer is defined in V.T.C.A., Penal Code, § 22.03(a), in part as:

“(a) A person commits an offense if, with a firearm…