dissenting
The majority of this Court decides to deny petitioner’s motion for rehearing which challenges the original panel decision to deny habeas corpus relief to a petitioner convicted on the basis of a fundamentally defective jury charge which provided an alternative theory of culpability not alleged in the indictment. While I concur in the opinion of Judge Clinton, I do not think it is necessary to reach the ineffective assistance of counsel claim. Because this Court will reverse a conviction on appeal when no trial objection is lodged against the defective charge and no ground of error is asserted on appeal identifying such defect, there is no basis in reason or law not to grant relief when such a defect is brought to our attention by way of habeas corpus proceedings under Article 11.07, V.A.C.C.P.
Although charged with committing aggravated robbery under V.T.C.A., Penal Code, Sections 29.02(a)(2) and 29.03(a)(2), the trial court’s charge to the jury authorized petitioner’s conviction for aggravated robbery on every conceivable theory provided under Sections 29.02 and 29.03, supra.
This type of error has been held fundamental error when no trial objection is made because it is “calculated to injure the rights of [the] defendant.” See Article 36.-19, V.A.C.C.P.; Gooden v. State, 140 Tex.Cr.R. 347 and 351, 145 S.W.2d 177 and 179; Morter v. State, 551 S.W.2d 715 (Tex.Cr.App.); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.); Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.); Johnson v. State, 573 S.W.2d 778 (rehearing denied December 13, 1978); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.); Armstead v. State, 573 S.W.2d 231 (Tex.Cr.App.); Bridges v. State, 574 S.W.2d 143 (Tex.Cr.App.); Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.). The error has been addressed as reversible, notwithstanding the failure to raise it expressly on direct appeal, i. e., reviewed in the interest of justice under Article 40.09(13), V.A.C.C.P. Edmond v. State, supra; Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.); Morter v. State, supra. It is evident from these cases and this Court’s decision to deny rehearing in Brewer v. State, supra, that the type of error involved here is fundamental, calculated to injure an accused’s rights and reviewable in the interest of justice. Since the error is in the trial court’s directions to the jury, it affects the integrity of the fact-finding process. It constitutes a failure to provide the jury with “a written charge distinctly setting forth the law applicable to the case.” Article 36.14, V.A.C. C.P. Such error misdirects the jury in its deliberations and fact-finding. See Williams v. State, 547 S.W.2d 18 (Tex.Cr.App.); Williams v. State, 508 S.W.2d 83 (Tex.Cr.App.); Bellah v. State, 415 S.W.2d 418; Cleaver v. State, 498 S.W.2d 945 (Tex.Cr.App.).
The issue presented to this Court by the instant application is whether a post-conviction challenge under Article 11.07, V.A.C. C.P., changes the treatment to be accorded such errors. If fundamental error, calculated to injure a criminal defendant’s rights, is cognizable in the interest of justice when not expressly raised on direct appeal, there is no reason to consider the error any less injurious or fundamental when brought directly to our attention under Article 11.07, V.A.C.C.P. Indeed, in the instant case petitioner appealed to this Court and the funda*308mental error reflected in the appellate record was not reached. To deny relief here is to condone an unequal administration of law by this Court. The panel in this case, partially consisting of two judges who dissented to the denial of rehearing in Brewer, supra, denied relief to petitioner who raised this issue in terms of a denial of due process. Much reliance was placed on other dispositive errors which, although reviewable and reversible if raised on direct appeal, are not reversible on a collateral attack without a showing of harm. Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.) (untimely sentence pronouncement); Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.) (failure to file waiver of time for appointed counsel to prepare for trial). However, this Court wrote in Ex parte Shields:
Habeas corpus lies only to review jurisdictional defects or denials of fundamental or constitutional rights.
The error involved here is sui generis. It has been determined to be prejudicial or harmful under the standards set out in Article 36.19, V.A.C.C.P. The errors analogized in the panel opinion are not so clearly prejudicial to a defendant’s rights. Although the sentence was untimely pronounced, a defendant has already been adjudged guilty and may not have any issues to raise on a motion for new trial or in arrest of judgment. Ex parte Shields, supra. Although a waiver document is not entered of record, counsel may be prepared for trial. Ex parte Meadows, supra. Yet, when the jury is authorized to consider alternative theories for the commission of an offense not charged in the indictment and/or supported by evidence, grievous harm lurks. The harm or its potential does not vary according to when the error at its foundation is brought to our attention.
On whether this type of error violates federal due process, the United States Supreme Court has written:
No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. . It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. [Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948)]
Conviction upon a charge not made would be sheer denial of due process. [DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937)]
There is no meaningful distinction between the “charge” referred to by the Supreme Court above and the “alternative theory of culpability” at issue in the Gooden line of cases. The belated insertion of the alternative theory in the trial court’s charge to the jury is “calculated to injure the rights of [a] defendant,” since he was never apprised of the State’s intention to prosecute him on the distinct, alternative theory. Tex.Const. Art. I, Sec. 10. The jury is not guided by the trial court to deliberate on the defendant’s guilt or innocence “as charged” in the indictment. Due process and due course of law are breached by such a practice.
The panel also relied on Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), for the conclusion that the inclusion of an alternative theory of culpability in that part of the trial court’s charge which applies the law to the facts of the case does not violate federal due process rights. U.S.Const. XIV Amendment. That case considered whether a “presumption of truthfulness”1 instruction in a state court jury charge violated the habeas petitioner’s due process rights. The case is distinguishable.
*309First, the Supreme Court noted that the Oregon Court of Appeals held provision of the instruction was not error. The Oregon Supreme Court denied a petition for review. The instruction had “an independent origin in Oregon practice” and was upheld previously against a constitutional challenge before the Oregon Supreme Court. Id., 414 U.S. at 144-145, 94 S.Ct. at 399. The Supreme Court was giving “appropriate respect for the deliberative judgment of a state in so basic an exercise of its jurisdiction.” Id., 414 U.S. at 149, 94 S.Ct. at 401. This “jurisdiction” has concluded the provision of an alternative theory of culpability in applying the law to the facts is not only error, but fundamental error “calculated to injure the rights of [a] defendant” and cognizable in the interest of justice. See Articles 36.19 and 40.09(13), V.A.C.C.P.
Second, “a single instruction to a jury may not be judged in artificial isolation, . ” Cupp v. Naughten, 414 U.S. at 146-147, 94 S.Ct. at 400. It was in discussing this method of reviewing a “single instruction” that the Court wrote:
the question is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.
Id., 414 U.S. at 147, 94 S.Ct. at 400.
We are not here concerned with a single, isolated instruction, but the essence of the trial court’s charge to the jury: the application of the law to the facts.
Finally, even should federal courts determine the error at issue here is not violative of the federal right to due process as secured by the Fourteenth Amendment, the error breaches our citizens’ right to due course of law as secured to them under the Texas Constitution, Art. I, Section 19.
Ex parte Gomez, 389 S.W.2d 308 (Tex.Cr.App.) is relied on by the panel, but the precedential value of that decision, as it applies to the issue now before us, must be seriously questioned. The precise defect in the court’s charge was never identified. No authority is cited for the blanket proposition that errors in the court’s charge cannot be raised by habeas corpus. No discussion is made of the standard of review on direct appeal when timely objection is not made.
For the foregoing reasons, I vigorously dissent from the denial of petitioner’s motion for rehearing in this cause.
. The complained of instruction read:
Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption.
Id., 414 U.S. at 141, 94 S.Ct. at 398.