concurring in part and dissenting in part.
I concur in the result reached by the majority, but I vigorously dissent to the majority’s disposition of appellant’s fourth ground of error. In his fourth ground of error the appellant asserts that he was erroneously denied a charge on aggravated assault, a lesser included offense to the charged offense of aggravated robbery. The majority says:
“Appellant would be entitled to a charge on aggravated assault if there were testimony that if guilty at all, he was only guilty of the lesser included offense. See Eldred v. State, Tex.Cr.App., 578 S.W.2d 721; Williams v. State, Tex.Cr.App., 575 S.W.2d 30. From our examination of the record we can find no evidence which would negate the existence of appellant’s theft of the Currie Automobile.
“We conclude that the evidence at trial established that if guilty at all, appellant was guilty of the charged offense of aggravated robbery ...”
The rule stated by the majority is an incorrect rule which has been erroneously applied numerous times since its apparent genesis in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952) as dictum. See *887Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974).
I suggest that the correct rule is that stated by Mr. Justice Goldberg in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965):
“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”
See also Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1958); Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895); United States v. Madden, 525 F.2d 972 (5th Cir. 1976); Yates v. United States, 384 F.2d 586 (5th Cir. 1976).
There is no merit to the appellant’s claim that he was entitled to a charge on the lesser included offense since the State while proving that appellant committed an aggravated robbery also proved that he committed an aggravated assault. Sansone v. United States, supra.
I concur in the result but dissent to the disposition of the appellant’s fourth ground of error.