(dissenting).
The majority reverses this conviction because the court instructed the jury that it could find appellant guilty of robbery if it found that he used a gun and “intentionally or knowingly, or recklessly, place Doug Sto-rey in fear of imminent bodily injury or death. . . . ” The Legislature has provided that this Court should not reverse for errors in a charge to the jury unless the error was calculated to injure the appellant. See Article 36.19, V.A.C.C.P., which provides, in part, that where the requirements of Articles 36.14, 36.15 and 36.16, V.A.C. C.P., relating to court’s charge have been disregarded “. . . [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 .”, and the cases there cited.
Let us look at the evidence in the present case to see if reversible error was committed. Douglas Lee Storey, an employee of Lynn’s Sak-N-Pak Store in Orange, testified that a man came into the store after midnight and had on a mask or a stocking and stated, “Everyone this is a holdup,” and he pointed what looked to him to be a large gun and made some three people who were in the store get near Storey. The man turned and asked Storey for all the money that he had in the store and said that he knew where every bit of it was because he had been watching them some time before. He told them that he did not care what they did after the robbery after he left because he was dying of cancer but he said that he would shoot them if they followed him out of the door and that the man took over a thousand dollars in cash. While the robbery was in progress Storey pushed an alarm button and as the robber left the store one of the officers who was waiting outside said, “Freeze.” The man, later shown to be appellant, reached for his back right pocket but he was rushed, arrested and handcuffed. A loaded .38 caliber revolver was found in his right rear pocket. The stocking mask was taken off his face and the money taken from the store was found in the bag in his hand. Deborah Broussard, another employee of the store, testified that she was in the store at the time and a customer said, “You are all fixing to get robbed”; that the man came in and told them it was a robbery, it was a hold up and to give him the money; that he had a stocking cap over his head. The man said that he had been watching them for days and knew where everything was; that the man told them “to keep your hands up.”
Four officers testified about apprehending appellant who had a loaded .38 caliber special revolver with the stocking mask over his face and with the money in a brown paper bag as he came out of the store.
At the guilt stage of the trial the docket sheet shows that the jury deliberated twenty minutes before finding appellant guilty.
The evidence in this case shows that the robbery was premeditated, deliberate, intentional and with malice aforethought. The charge that the appellant could have recklessly placed Storey in fear of his life *8should not have been given. However, one cannot be said to recklessly place another in fear of his life when he deliberately does so. There is no way that any jury could have been misled under the facts of this case by the charge given by the trial judge. No reversible error has been shown.
The judgment should be affirmed.