OPINION ON STATE’S MOTION FOR REHEARING
TOM G. DAVIS, Judge.Appeal is taken from a conviction for aggravated assault. V.T.C.A. Penal Code, Sec. 22.02. After finding the appellant guilty, the jury assessed punishment at five years.
On original submission, the appellant contended that the court’s charge under which he was convicted was fundamentally defective in that it authorized a conviction not charged. The panel opinion held the charge to be defective “because the charge authorized a conviction on facts not included within the allegations of the indictment.”
On rehearing, the State urges that the charge does not constitute error. The State contends that although the charge includes a theory of aggravated assault not found within the indictment, the theory nonetheless “falls under the canopy of the indictment” as a lesser included offense of the offense charged.
The pertinent portions of the indictment under which the appellant was tried alleged:
“with the specific intent to commit the offense of murder did then and there attempt to cause the death of Charles Robinson by shooting him with a gun, said attempt being by shooting at the said Charles Robinson with a gun and narrowly missing the said Charles Robinson which said act tended but failed to effect the commission of the offense intended;” (Emphasis Added).
Whereas, the charging portion of the aggravated assault paragraph instructed the jury:
“Therefore, if you find and believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Jimmy Luera, did intentionally, knowingly or recklessly cause bodily injury to Charles Robinson by shooting at or in the direction of said Charles Robinson with a deadly weapon, to-wit, a gun, or if you find and believe from the evidence beyond a reasonable doubt that the defendant, Jimmy Luera, did, on the occasion in question, intentionally or knowingly threaten Charles Robinson with imminent bodily injury by shooting at or in the direction of said Charles Robinson with a deadly weapon, to-wit, a gun, but you further find and believe from the evidence, or have a reasonable doubt thereof, that the defendant did not intend to kill the said Charles Robinson, then you will find the defendant guilty of aggravated assault; if you have a reasonable doubt as to whether defendant is guilty of aggravated assault under the instructions given you, you will acquit the defendant of aggravated assault and consider whether or not defendant is guilty of the offense of reckless conduct.” (Emphasis Added).
Testimony from the record established the fact that the complainant, Robinson, while driving alongside appellant’s truck, was fired upon by the appellant. Shotgun pellets pierced the cab of the truck, and ricochet either from the pellets or flying debris inflicted red marks on Robinson’s left leg. No other injury resulted from the shooting.
The State, in its motion for rehearing, argues that under Art. 37.09(2), V.A.C.C.P., the offense of aggravated assault by the infliction of bodily injury is a lesser included offense of that charged in appellant’s indictment. Under paragraph (2) of Art. 37.09, supra, an offense is a lesser included offense if:
“It differs from the offense charged only in the respect that a less serious injury or *570risk of injury to the same person, property or public interest suffices to establish its commission.”
The State’s argument appears to be that a conviction for aggravated assault is authorized under the indictment in that a less serious injury than that alleged in the indictment was shown. The indictment, however, alleged that appellant shot at, but “narrowly miss[ed]” the complainant. Thus, since Art. 37.09(2), supra, requires a “less serious injury” and no injury at all was alleged in the indictment, the charge was not authorized.
State’s motion for rehearing is denied.