dissenting.
I respectfully dissent.
The offense of aggravated robbery is alleged in the indictment. It is axiomatic that the State is bound by the allegations it states in the charging instrument, and must prove each allegation beyond a reasonable doubt. Taylor v. State, 637 S.W.2d 929, 930 (Tex.Crim.App.1982), and cases cited therein. After reviewing the proof in the light most favorable to the verdict, I can only conclude that there is a fatal variance between the allegations in the indictment and the evidence produced by the State. In my opinion, the State proved Mrs. Rigg was threatened and that a deadly weapon was used by appellant’s co-defendant during the robbery of Mrs. Rahn, but did not prove that the threat of imminent bodily injury was in any way communicated to Mrs. Rigg by the use of the deadly weapon. Mrs. Rigg not only did not see a knife, but was unsure one was being used by appellant’s co-defendant during the assault of her companion, Mrs. Rahn.
The evidence is overwhelming that appellant committed the offense of robbery of Mrs. Rigg. Therefore, the result I suggest would in no way exculpate the appellant.
I would set aside the judgment of conviction and would enter a judgment of reversal and an acquittal for this offense pursuant to the dictates of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
I would further hold, however, that this appellant may be retried for committing the offense of robbery of Mrs. Rigg. Therefore, the judgment of conviction should be reversed and the cause remanded to the trial court for proceedings not inconsistent with this holding. Cf. Taylor v. State, 637 S.W.2d 929 (Tex.Crim.App.1982).