dissenting.
The majority reversed this conviction because the charge permitted the jury to find appellant guilty of aggravated robbery under a theory not alleged in the indictment. Article 36.19, V.A.C.C.P., governing errors in the charge, provides in part that “. . . the 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. . . . ” Because no objection was made to the charge, and because no harm has been shown to appellant, the judgment should be affirmed.
V.T.C.A., Penal Code, Section 29.02, provides:
“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
*305“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”
V.T.C.A., Penal Code, Section 29.03, provides:
“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.”
The indictment alleged, in substance, that appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death by using and exhibiting a pistol while in the course of committing theft. The court’s charge authorized the jury to convict appellant of aggravated robbery upon a finding that the allegations in the indictment were true, and further authorized a conviction for the same offense upon a finding that appellant had caused serious bodily injury to appellant while in the course of committing theft. A fair evaluation of this charge, however, requires an evaluation in the context of the entire record.
The evidence presented at trial shows that the complainant, Paul Schiro, owned a pool hall and domino parlor in Houston. On January 12, 1975, appellant and two other men entered the establishment and robbed Schiro and several customers at gunpoint. While the robbers made the customers lie on the floor, appellant ordered Schiro to come to the front of the building. Appellant told him that he had been “casing” the establishment during the three months preceding the robbery.
Although appellant had his own pistol, he found Schiro’s .38 caliber revolver behind the counter and started waiving it in the air, saying that he was “badder than A1 Capone ever was.” The robbers then made Schiro lie on the floor in front of a confec-tionary counter. They tied his hands behind him and put a chair over his head before they left.
Schiro testified that he was afraid the robbers would injure or kill him, but that they did not hurt anyone. He further testified that he gave the robbers his money because they exhibited guns.
The record is clear that appellant placed the complainant in fear of his life by displaying and exhibiting a gun. There is no evidence whatsoever that anybody sustained a bodily injury during the robbery. While the jury charge is not a model of clarity, it could not have misled any jury under the facts of this case. No harm is shown. Moreover, “. -by failing to object to the jury charge”, appellant may have “. . . injected into the trial process the very type of error which the objection requirement was designed to avoid.” Henderson v. Kibbe, 431 U.S. 145, 157, 97 S.Ct. 1730, 1738, 52 L.Ed.2d 203, 214 (1977) (Burger, J., concurring).
No reversible error is shown. The judgment should be affirmed.