This appeal is taken from a conviction for the offense of theft of property valued at more than $200 and less than $10,000. Appellant was tried before a jury, which also assessed punishment at fifteen years imprisonment.
The record reflects that appellant was represented by counsel throughout the State's presentation of the case. After the State closed, appellant dismissed his court appointed attorney and sought to represent himself, with the assistance of a fellow jail inmate. The evidence adduced by the State showed that appellant and another individual, Armando Davila, walked into a Dillard's department store on April 2, 1977. Appellant carried a large trash can into the store, into which the two men dropped racks of clothes. Appellant and Mr. Davila then left by separate doors and were immediately apprehended.
In his brief appellant asserts six grounds of error. By his last ground of error, he complains that the trial court committed fundamental error in the charge submitted to the jury. We agree. Thus it will not be necessary to reach either the other grounds asserted or the two grounds of error contained in appellant's pro se brief.
The charge as submitted by the trial judge, and without objection, contained two theories of conviction. The first portion authorized appellant's conviction as an actor in the commission of a theft. The second theory authorized appellant's conviction as a party to the offense under V.T. C.A. Penal Code, § 7.02(a)(3) as follows:
As this Court wrote in Dowden, supra, at 6:
The charge in the instant case authorizes a conviction without requiring the jury to find either: (1) that appellant had a legal duty which would require him to act affirmatively to prevent the theft, or (2) that appellant by his inaction in failing to prevent the theft, committed any act coupled with the requisite intent to promote or assist in the commission of an offense. Therefore it authorizes the jury to convict a bystander for what he may have thought or intended. This is fundamental error. Cumbie, supra.
Finally we question the applicability of § 7.02(a)(3), supra, to the facts presented here. We point to the Practice Commentary which states:
In order for this provision to be used to charge the jury appropriately under the facts of a case, the defendant must have had a legal duty to prevent the commission of an offense, must have neglected that legal duty, and must have done so with the intent to promote, or to assist in promoting, the commission of an offense. Thus, even had the charge contained the necessary element of "having a legal duty" in the portion applying the facts to the law, the charge would have remained erroneous under the facts before us.
For the foregoing reasons, appellant's sixth ground of error is sustained. The judgment of the trial court is reversed and the cause is remanded.