Leal v. State, 626 S.W.2d 866 (Tex. App. 1981). · Go Syfert
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Leal v. State, 626 S.W.2d 866 (Tex. App. 1981). Cases Citing This Book View Copy Cite
13 citation events (3 in the last 25 years) across 2 distinct courts.
Strongest positive: Billy Wayne Speights v. State (texapp, 2014-03-26)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Billy Wayne Speights v. State
Tex. App. · 2014 · confidence medium
Guevara further explained that “[t]he movant must make the trial judge aware of the motion by calling the judge’s attention to it in open court and requesting a ruling thereon.” Id.; see also Wright v. State, No. 05-09-01527-CR, 2011 WL 5178298 , at *1 (Tex. App.—Dallas Nov. 2, 2011, no pet.) (not designated for publication) (citing Lamar v. State, No. 05-04-00741-CR, 2005 WL 1871024 (Tex. App.—Dallas Aug. 9, 2005, pet. dism’d) (not designated for publication) (right to speedy trial not raised unless brought to court’s attention)); Wrighter v. State, No. 08-99-00109-CR, 2003 WL 3…
discussed Cited as authority (rule) Mejia v. State
Tex. App. · 1987 · confidence medium
Little v. State, 699 S.W.2d 316, 317 (Tex.App.1985, no pet.); Ford v. State, 668 S.W.2d 477, 478 (Tex. App.1984, no pet.); Barros v. State, 661 S.W.2d 337, 341 (Tex.App.1983, no pet.); Leal v. State, 626 S.W.2d 866, 867 (Tex.App.1981, no pet.).
discussed Cited "see" In Re KEM
Tex. App. · 2002 · signal: see · confidence high
Lee, 555 S.W.2d at 122 ; see Leal v. State, 626 S.W.2d 866, 867 (Tex.App.-Corpus Christi 1981, no pet.) (reversing and remanding on an unassigned error in a fatal variance between the indictment and the charge).
discussed Cited "see" In the Matter of K.E.M., Juvenile
Tex. App. · 2002 · signal: see · confidence high
Lee, 555 S.W.2d at 122 ; see Leal v. State, 626 S.W.2d 866, 867 (Tex.App.-Corpus Christi 1981, no pet.) (reversing and remanding on an unassigned error in a fatal variance between the indictment and the charge).
discussed Cited "see" Gomez v. State
Tex. App. · 1986 · signal: see · confidence high
See Leal v. State, 626 S.W.2d 866 (Tex.App.—Corpus Christi 1981, no pet.); Ex Parte Allen, 630 S.W.2d 693 (Tex.App.-Houston [1st Dist.] 1981, pet. ref’d); Edwards v. State, 661 S.W.2d 733 (Tex.App.-Beaumont 1983, no pet.).
Rodolfo LEAL and Carlos Cavazos, Appellants,
v.
STATE of Texas, Appellee
13-81-056-CR (2043-CR).
Court of Appeals of Texas.
Dec 30, 1981.
626 S.W.2d 866
1981 Tex. App. LEXIS 4567
Homero M. Lopez, A. C. Nelson, Nelson, Williamson & Yanez, Brownsville, for appellants., Reynaldo Cantu, Jr., Crim. Dist. Atty., Brownsville, for appellee.
Bissett, Young, Gonzalez.
Cited by 13 opinions  |  Published

OPINION

BISSETT, Justice.

This is an appeal from murder convictions. Both defendants were tried jointly before a jury. They were each sentenced to thirteen years’ imprisonment. We reverse and remand.

In view of our action in this appeal, it is not necessary that we consider the defendants’ first point of error, wherein it is claimed that the trial court erred in admitting photographs of the deceased which were taken after an autopsy was performed.

Before this case went to trial, the defendants filed a motion to dismiss the indictment on the ground the time period provided in the Speedy Trial Act had lapsed. See Tex.Code Crim.Proc.Ann. art. 32A.02 (Vernon Supp. 1980-1981). Although the motion to dismiss the indictment was filed before commencement of the trial, there is nothing in the record which indicates that the defendants ever called the court’s attention to it. On the day the trial commenced, the defendants announced ready. They did not urge their motion to dismiss. The State contends that the defendants waived the provisions of the Speedy Trial Act. We agree.

The provisions of the Speedy Trial Act are waived if the defendant fails to move for discharge under the provisions of the Act prior to trial. Tex.Code Crim.Proc. Ann. art. 32A.02, § 3 (Vernon Supp. 1980-1981). Although the defendants filed a motion raising the Speedy Trial Act, they failed to pursue the motion to an adverse ruling. This, plus their announcement of ready on the first day of the trial, operated as a waiver of the provisions of the Speedy Trial Act. See Martinez v. State, 565 S.W.2d 70, 71 (Tex.Cr.App.1978). The defendants’ second ground of error, which complains of the trial court’s failure to dismiss the indictment, is overruled.

We are compelled to consider an unassigned error. The indictment charged the defendants with murder in the following language:

“... RODOLFO LEAL CARLOS CAVAZOS
on or about the 15th day of January A. D. One Thousand Nine Hundred and Seventy-nine and anterior to the presentment of this indictment, in the County of Cameron and State of Texas, did then and there unlawfully, intentionally and knowingly cause the death of JOSE AMAYA, by shooting him with a gun, ...”

The court’s charge instructed the jury as follows:

“Now if you find and believe from the evidence beyond a reasonable doubt that on or about the 15th day of January,[*868] 1979, in Cameron County, Texas, the Defendants, Rodolfo Leal & Carlos Cavazos, did intentionally or knowingly cause the death of Jose Amaya by shooting him with a gun or did then and there intend to cause serious bodily injury to the said Jose Amaya and with said intent to cause such injury did commit an act dearly dangerous to human life, to wit, shooting him with a gun, as alleged in the indictment, then you will find the Defendants guilty of Murder.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt as to whether Defendants are guilty of Murder, then you will acquit them of Murder.” [Emphasis added].

The jury was authorized to convict the defendants on a theory not alleged in the indictment. Thus, there is a fatal variance between the indictment and the charge. Such is fundamental error requiring reversal. Colbert v. State, 615 S.W.2d 754, 755 (Tex.Crim.App.1981); Infante v. State, 612 S.W.2d 603, 604 (Tex.Crim.App.1981). The judgment of the trial court is therefore reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.