concurring.
The panel decision goes beyond the necessary steps for the disposition of appellant’s ground of error. I concur in denial of the State’s motion for rehearing to clarify what should be the correct resolution.
Reiterating the panel opinion, appellant did file a written objection to the court’s charge. Appellant complained that “the use of the words ‘threaten or’ ... permits [a] conviction on a theory not alleged in the indictment.” The objection was overruled.
This Court has previously held that a charge authorizing a conviction upon a theory not alleged in the indictment is erroneous. Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976). When an objection to the charge is not made, the error should be waived. Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976); see Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979) (Dally, J., concurring). However, failure of the trial court to sustain a proper objection that the charge includes an offense not alleged in the indictment is reversible error. Walton v. State, 575 S.W.2d 25 (Tex.Cr.App.1978); Dowden v. State, supra; see Dirck v. State, 579 S.W.2d 198 (Tex.Cr.App.1979) (opinion on appellant’s motion for rehearing).
I would reverse the judgment, holding that the appellant properly objected to the erroneous charge. I cannot follow the panel’s opinion that the charge was fundamentally defective.