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Moore v. State

Court of Criminal Appeals of Texas, Panel No. 1
Mar 18, 1981
612 S.W.2d 932 (Tex. Crim. App. 1981)

Opinion

No. 60429.

March 18, 1981.

Appeal from the 118th Judicial District Court, Howard County, R. W. Caton, J.

Drew Mouton, Big Spring, for appellant.

Rick Hamby, Dist. Atty., and Donald J. Richard, Asst. Dist. Atty., Big Spring, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and ODOM, JJ.


OPINION


This is an appeal from a conviction for burglary of a habitation. Punishment was assessed at eight years.

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

The indictment in this case alleged burglary under V.T.C.A., Penal Code Sec. 30.02(a)(3), by entering a habitation and committing theft. The jury charge, in contrast, submitted the case as one charging burglary by entering a habitation with intent to commit theft, under V.T.C.A., Penal Code Sec. 30.02(a)(1). This is precisely the same error as required reversal in Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.), and Whitlow v. State, 567 S.W.2d 522 (Tex.Cr.App.). Reversal is likewise required in this case.

The brief raises a challenge to the sufficiency of the evidence to corroborate the accomplice witness. The jury was not charged on the issue and the evidence did not show that the witness was an accomplice witness. Further discussion of that ground of error is not necessary.

The judgment is reversed and the cause is remanded.


Summaries of

Moore v. State

Court of Criminal Appeals of Texas, Panel No. 1
Mar 18, 1981
612 S.W.2d 932 (Tex. Crim. App. 1981)
Case details for

Moore v. State

Case Details

Full title:Hollis MOORE, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, Panel No. 1

Date published: Mar 18, 1981

Citations

612 S.W.2d 932 (Tex. Crim. App. 1981)

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