The opinion
McCORMICK, Judge,
dissenting.
Once again a majority of this Court, oblivious to sound legal reasoning and sound legal precedent, has travelled a circuitous path in affirming the Court of Appeals judgment in this case. Basically the majority opinion holds that the rule this Court announced in Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980), is a good rule simply because it exists.
This Court has totally ignored the very open cries of distress being uttered throughout this state by trial judges, other appellate judges and prosecutors. Justice Junell of the Houston Court of Appeals (14th District) in writing on this very case urges this Court to re-examine our holdings in Evans v. State, supra, and its progeny. He writes:
We agree with the three dissenting justices in Williams [Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.1981) ] that “it makes no sense to hold that a jury is able to refer back to the abstract definition of a charge to discover what constitutes theft, but is unable to refer back to discover what constitutes one of the elements of theft, unlawful appropriation” Williams v. State, 622 S.W.2d at 98 . When a jury has been fully instructed in language which substantially follows the language of the statute and has before it in the charge itself proper definitions to *887 which to refer, we see no reason to require such a technical repetition; this is especially true when there is nothing in the record to suggest that the accused may not have had a fair trial. Where there is no objection to the charge at the time of trial, error in the charge should not constitute grounds for reversal unless the error appearing from the record was calculated to injure the rights of the defendant or unless it appears from the record that the defendant has not had a fair and impartial trial. Tex.Code Crim. Proc.Ann. art. 36.19 (Vernon 1981). Hill v. State, 625 S.W.2d 803, at 806, 807 (Tex.App. — Houston (14th District 1981).
Justice Junell goes on to say that he and his colleagues believe that where as in the case at bar, the court’s charge requires the jury to find each essential element of the offense charged and properly charges as to the, legal theory presented by the State through evidence that proves every factual allegation made in the indictment, the accused has received due process and is not entitled to reversal.
The justices of the Sixth Court of Appeals have also voiced their concern. In Allen v. State, No. 6-81-011-CR, 5-18-82 (Tex.App. — Texarkana, 1982), they wrote:
The appellants have not shown an injury to their rights or a denial of a fair trial. Our review of the charge as a whole, Monticue v. State, 40 Tex.Cr.R. 528 , 51 S.W.2d 239 (1899), together with the facts of record, convince us that the appellants were not injured by the trial court’s omission. Following the definition of fundamental error in Simmons v. State, supra, and other cases we would logically conclude that there is no fundamental error present.
Nevertheless, the Court of Criminal Appeals has held that a charge which in its application of the law to the facts neglects to require the unlawful appropriation was without the owner’s consent, is fundamentally defective. (Op., pp. 2-3).
And finally, the justices of the Thirteenth Court of Appeals have written the following:
In other words, under this charge, if the jury had followed the definitions, they could not have found the appropriation to be ‘unlawful’ unless they found it ‘was without the owner’s effective consent.’ Still feeling that this analysis is correct, we yield, as it is our duty to do, to the majority opinion in Williams which holds that the phrase ‘unlawfully appropriate’ is inadequate to submit the without-effective-consent element of theft even though ‘unlawful appropriation’ is defined in the charge to mean appropriation that is ‘without the owner’s effective consent.’2
We join with Justices Junell, Brown, and Price of the 14th District Court of Appeals in Hill v. State, 625 S.W.2d 803 (Tex.Cr.App. [14th Dist.] 1981), in respectfully urging the Court of Criminal Appeals to reconsider its holdings in Evans, Young, and Williams. (Footnote omitted). Castillo v. State, No. 13-81-108-CR, 8-26-82 (Tex.App. — Corpus Christi, 1982).
I would urge the majority of this Court to heed the urgings of these lower courts. As Justice Brandéis stated in Di Santo v. Pennsylvania, 273 U.S. 34 , 47 S.Ct. 267 , 71 L.Ed. 524 (1927):
The logic of words should yield to the logic of realities. 273 U.S. at 43, 47 S.Ct. at 270 .
As noted in the majority, the indictment charged appellant with aggravated robbery. In the jury charge, the trial court defined the offenses of robbery, aggravated robbery and theft. In addition, the court defined appropriation and instructed the jury that appropriation of property is unlawful if it is without the owner’s effective consent. The charge then applied the law to the facts:
Now, if you find from the evidence be-yound a reasonable doubt that on or about the 25th day of February, A.D. 1979, in Harris County, Texas, the defendant, Calvin Arthur Hill, with intent to deprive Paula Cagle, the owner, of her personal property, did unlawfully appro *888 priate from Paula Cagle said property belonging to Paula Cagle, and that the defendant, Calvin Arthur Hill, in so doing, and with intent to obtain or maintain control of said property, then and there intentionally or knowingly threatened or placed said Paula Cagle in fear of imminent bodily injury or death, if you do so find, exhibited a deadly weapon, namely, a knife, then you will find the defendant guilty of the offense of aggravated robbery as charged in the indictment, and so say by your verdict, (emphasis added)
As the majority correctly notes, the trial judge failed to include the element of “while in the course of committing theft”. Instead the trial judge properly set out the elements of the offense of theft. According to V.T.C.A., Penal Code, Section 31.-03(a), the offense of theft is made up of the following elements:
(1) a person
(2) unlawfully
(3) appropriates property
(4) with intent to deprive
(5) the owner of property
A review of the application paragraph of the charge reveals that all these elements are present. The majority writes that “without the effective consent of the owner” is an element of theft. However, that is not correct. “Without the effective consent” is not an element of theft, but it is actually a sub-element of unlawful appropriation.
V.T.C.A., Penal Code, Section 31.03(b) gives two alternate definitions for the unlawful appropriation of property:
(b) Appropriation of property is unlawful if:
(1) it is without the owner’s effective consent; or
(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.
As noted in the majority opinion, the jury was informed in the abstract portion of the charge that appropriation of property is unlawful if it is without the owner’s effective consent. It is absurd to suggest that the jury could not absorb that information and properly apply it to their deliberations. It is clear that before the jury could find that the appellant unlawfully appropriated the property, they were required to find that the appropriation was without the owner’s effective consent.
The charge must be read as a whole. The majority would have us believe that in cases where the appellant is alleging fundamental error for failure to include all of the elements of the offense, the application paragraph must be examined alone. The majority opinion cites Robinson v. State, 596 S.W.2d 130 (Tex.Cr.App.1980), for this proposition. But Robinson v. State, supra, an aggravated robbery, case does not say that. Rather this Court in Robinson said:
Appellant made no objection to the omission as required by Article 36.14, V.A.C. C.P., nor did he “by a special requested instruction, call the trial court’s attention to [the] omission” as is mandated by Article 36.15, V.A.C.C.P. It is therefore appropriate to view the charge as a whole in order to determine whether any of the fundamental evils condemned by our holding infected appellant’s conviction in the instant case. Slagle v. State, 570 S.W.2d 916 (Tex.Cr.App.1978). Robinson v. State, 596 S.W.2d at 132, 133 .
The court then went on to examine the charge as a whole and found no fundamental error. Since the jury does not read the paragraph applying the law to the facts in a vacuum, neither should the reviewing court when looking for fundamental error. And indeed, this has been the longstanding rule.
Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979) has often been cited as listing the types of situations where fundamental error in the jury charge exists. They are:
(1) when the court’s charge omits an allegation in the indictment which is required to be proved;
(2) when the charge to the jury substitutes a theory of the offense com *889 pletely different from the theory alleged in the indictment;
(3) when the charge to the jury authorizes conviction on the theory alleged in the indictment and on one or more other theories not alleged in the indictment; or
(4) when the charge authorizes conviction for conduct which is not an offense, as well as for conduct which is an offense.
The case at bar contains none of these defects. Thus there is no fundamental error.
Finally, the majority opinion makes an alarming statement which I cannot, in all good conscience, ignore. Judge Odom writes that once fundamental error is found in the jury charge, reversal is automatic under Article 36.19, V.A.C.C.P. That is not an age old principle of law as the majority would have us believe, but it is an aberration of the law which this Court has perpetuated since the case of Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). For a synopsis of the case law in this area, see my dissent in Doyle v. State, 631 S.W.2d 732 (Tex.Cr.App.1982) (Opinion on State’s Motion For Rehearing). Where appellant has shown no injury, reversal is not mandated when error is found in the jury charge.
Not only should this conviction be affirmed, but this Court should re-examine the holding in Evans v. State, supra, and overrule it once and for all. Until such time as the majority acts along those lines, I must continue to vigorously dissent.
W.C. DAVIS and DALLY, JJ., join in this dissent.