dissenting.
I dissent.
I know of no reported case in which the Court of Criminal Appeals has written on a jury charge used in a trial for the offense of engaging in organized criminal activity. Tex.Penal Code Ann. § 71.02 (Vernon Supp. 1982-1983). The majority assumes that we should follow as precedent decisions by the higher court in aggravated robbery cases. I disagree.
If the Court of Criminal Appeals grants discretionary review, I would hope and urge that the holdings in Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980) and its progeny be reexamined. I agree with the sound reasoning of Judge McCormick in his dissent in Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.1981) and Judge Clinton in his dissent in Hill v. State, 640 S.W.2d 879 (Tex.Cr.App.1982).
Here, the jury was given the definition of theft in the words of Tex.Penal Code Ann. § 31.03 (Vernon Supp. 1982-1983). “Appropriate” was defined exactly as in Tex. Penal Code Ann. § 31.01(5)(B) (Vernon Supp. 1982-1983). The jury was then told, “Appropriation of property is unlawful if it is without the owner’s effective consent.” The jury had to find all the requisite elements of the crime charged in order to convict. There was no objection to this part of the charge, and none of the twenty-six (26) specially requested charges concerned this issue.
The Legislature could not have given us stronger guidance than Tex.Code Crim.Pro. Ann. art. 36.19 (Vernon 1981), dealing with review of a court’s charge on appeal, where it is stated “[T]he judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” (Emphasis added). The error complained of harmed the defendant in no way and had absolutely no bearing on the fairness of the trial. I believe this court should follow the mandatory provisions of art. 36.19 and affirm the conviction.