dissenting.
In an original opinion delivered December 13, 1978 a panel of this Court denied post-conviction habeas corpus relief sought under Article 11.07, V.A.C.C.P. The sole contention addressed by the Court was a “Robinson” error in the charge to the jury, Robinson v. State, 553 S.W.2d 371 (Tex.Crim.App.1977). It has been sufficiently shown that the opinion of the Court was delivered and its mandate issued during a time when petitioner was without counsel in this cause.1 Upon his obtaining new counsel, given the circumstances outlined in the footnote below, we recalled the mandate and granted leave to file motion for rehearing January 31, 1979. The Court now overrules the motion without written opinion. I dissent.
Petitioner claims relief not only because of a fundamental error in the charge of the court, as noted in our original opinion, but also because he was denied effective assistance of counsel on appeal from his conviction since his attorney failed to raise the fundamental defect in the charge of the court as a ground of error, a contention the panel opinion does not decide.2 The indict*310ment in the primary case, whose date does not clearly appear, alleges the offense of aggravated robbery on August 24, 1975 in that petitioner then and there:
“while in the course of committing theft intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”
November 12, 1975 a jury returned a verdict finding petitioner guilty of aggravated robbery as charged in the indictment and on the same day assessed punishment at confinement for a period of 30 years.3 November 26, 1975 the trial court sentenced defendant to confinement at not less than 5 nor more than 30 years and remanded him to the custody of the sheriff to carry out the sentence. On that same date notice of appeal was given.
September 21, 1977 in our Cause No. 53,-795 the conviction was affirmed in a per curiam opinion, 555 S.W.2d 134.
Meanwhile, July 13, 1977 this Court delivered its opinion in Robinson v. State, supra. Robinson was tried on an indictment that alleged that on or about March 7, 1975 he then and there:
“. . . while in the course of committing theft . . intentionally and knowingly threatened and placed the Complainant in fear of imminent bodily injury and death, by using and exhibiting . a pistol.”
Applying the law to the facts in Robinson the court charged the jury to find him guilty if he:
“intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and that in so doing the foregoing acts, if you so find, the defendant caused serious bodily injury to (complainant) or the defendant used or exhibited a deadly weapon, to-wit, a pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment . . .”
In the instant cause a district court in the same county wherein Robinson had been tried and convicted instructed the jury to find Coleman guilty if he:
“intentionally, knowingly or recklessly caused bodily injury or intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death and . . . that in so doing the foregoing acts, if you do so find, that the defendant caused serious bodily injury to (complainant) or the defendant used or exhibited a deadly weapon, to-wit, a pistol, then you will find the defendant guilty as charged in the indictment.”
The Robinson opinion found and concluded, 553 S.W.2d at 375:
“While the charge authorized a conviction upon the theory alleged in the indictment, it also authorized a conviction upon every other conceivable theory under § 29.02 and § 29.03 which was not alleged in the indictment. We conclude that fundamental error is reflected and the conviction based on count one of the indictment must be reversed.”
To the reversal of the judgment, one judge dissented.4 The original panel opinion de*311nied relief because of its conclusion that a violation of due process did not follow from the erroneous charge of the court. The panel did recognize that the defect in the charge was held to be reversible error in Robinson, supra — though the Robinson charge was not challenged by objection yet the Court concluded it constituted fundamental error which, by definition, means one calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial. Nor, although it was raised as a basis for habeas relief, did the panel consider the claimed denial of effective assistance of counsel on appeal for failure to raise the fundamental defect in the charge as a ground of error. Had it done so the panel may well have reached a different conclusion — as I have and now develop the basis for it.
In a post-conviction habeas corpus proceeding under the provisions of Article 11.-07, V.A.C.C.P., this Court has granted appropriate relief where it is shown that an indigent accused has been convicted, expressed a desire to appeal and failed to obtain a court-appointed attorney, Ex Parte Perez, 479 S.W.2d 283 (Tex.Crim.App.1972), because effective assistance of counsel on appeal is constitutionally required, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967). Moreover it is the duty of appointed appellate counsel to support the appeal of his client to the best of his ability, Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967):
“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. * * * His role as an advocate requires that he support his client’s appeal to the best of his ability.”
What has come to be known as an “An-ders ” brief must refer to “anything in the record that might arguably support the appeal.” That is our rule as well, Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969).5
Had an objection been made to the “Robinson” feature of the charge and been overruled, on appeal a ground of error complaining of the ruling clearly would have been sustained, Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App. 1976); absent an objection to the charge, on appeal a ground asserting fundamental error would have been sustained, Robinson v. State, supra, 553 S.W.2d at 374-375; without an objection to the charge and even absent a ground asserting fundamental error on original submission, still had the matter been raised by motion for rehearing it would have been upheld, Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App. 1979); finally, even without the error being assigned, if noted by the court it will be reviewed in the interest of justice and the judgment of conviction reversed and the cause remanded, Hawkins v. State, 579 S.W.2d 923 (Tex.Cr.App. 1979).
In assaying effectiveness of counsel at the trial court level, failure to lodge an otherwise meritorious objection to the court’s charge may be significant; cf. Hunnicutt v. State, 531 S.W.2d 618, 624 (Tex.Crim.App.1976). Patently, had appellate counsel called attention to the manifestly erroneous charge, by way of ground of er*312ror, motion for rehearing or other proper manner, this Court would have been impelled to reverse and remand. Assuming that the test applied to determine “effective” counsel at trial is the same for appellate counsel — reasonably likely to render and rendering reasonably effective assistance — I cannot say that our relator here was rendered effective assistance on original appeal; cf. Fuller v. State, 423 S.W.2d 924, 927-928 (Tex.Crim.App.1968).
Moreover, had this Court noted the erroneous charge, as in Hawkins, supra, in the interest of justice we would have reviewed the error and reversed the conviction.
In a very real sense, then, with respect to relator the criminal justice system “has failed, and the state’s consequent imprisonment ... of the defendant is fundamentally wrong,” Fitzgerald v. Estelle, 505 F.2d 1334, 1336 (5 Cir., En Banc, 1975).6
Thus, I conclude that violations of the due process clause of the Fourteenth Amendment and of the due course clause of Art. I, Sec. 19 of the Bill of Rights in the Texas Constitution, as well, have been shown. Accordingly, relator is entitled to the primary relief he seeks, release from confinement in the Texas Department of Corrections. To refusal of the Court to grant that relief, I respectfully dissent.
ONION, P. J., and ROBERTS and PHILLIPS, JJ., join.. Attorneys for petitioner are designated by Staff Counsel for Inmates, Texas Department of Corrections. The attorney who initially represented petitioner and prepared and filed his original application for writ of habeas corpus terminated employment with Staff Counsel for Inmates after this cause was set for submission and a replacement lawyer was not designated for more than two weeks. Present designated counsel acted with diligency in reviewing the original opinion of this Court, the record in this cause and preparing motion to recall mandate, leave to file motion for rehearing en banc and motion for rehearing en banc which were received by the Clerk of this Court January 19, 1979.
. The statement in the panel opinion that relief was denied by this Court September 20, 1978 is erroneous, but inadvertently stated. The Clerk *310of the Court received two applications in behalf of petitioner on the same day and cursory examination would lead one to believe each is a duplicate of the other. On closer review, however, one was a pro se application given Cause No. 234172-A in the court below while the other was filed by counsel for petitioner and given Cause No. 234172-B in the court below. The September 20, 1978 denial was of the former, the pro se petition No. 234172-A.
. Inexplicably the judgment of the court states that the offense was committed on the 17th day of July, 1975, as opposed to the August 24 date alleged in the indictment.
. As shown by authorities quoted and cited, the finding and conclusion of Robinson merely followed precedent going back as far as 1882; see, e.g., Ross v. State, 487 S.W.2d 744 (Tex.Crim.App.1972) and authorities cited therein. What Robinson did do was to apply settled doctrine to a form indictment and charge in aggravated robbery cases drawn under the new penal code and apparently utilized by nearly every court in the particular county. Thus Robinson itself became precedent for reversal *311in a host of aggravated robbery cases from that county, one of the most recent of which is Gooden v. State, 576 S.W.2d 382 (1979) in which the concurring opinion on motion for rehearing collects and cites a number of reversals from that county and others.
. On original appeal, a showing of indigency having been made, appellant was represented by appointed counsel and transcription of notes of the court reporter was done at State’s expense. Although not labeled an “Anders" brief, appended to it is a letter from appointed counsel to appellant that accords with the notification procedure of Anders and Gainous, supra. The brief itself purports to raise four grounds of error, three of which complain of relatively minor discrepancies in the indictment and the last asserting an unlawful search and seizure that was quickly disposed of in the per curiam opinion, primarily on the basis that this Court’s decision in White v. State, 521 S.W.2d 255 (Tex.Crim.App.) was reversed by the Supreme Court of the United States in Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1976) before the appellate brief had been filed.
. The quoted phrase appears in a context of identifying “[r]equisite Fourteenth Amendment state action,” regardless of whether counsel is retained or appointed. Agreeably to the proposition, a minority of the Court found that State action is satisfied because “the State adjudicatory machinery is inextricably intertwined with the conduct” of counsel.