dissenting.
On original submission, the majority of the panel reversed appellant’s conviction because the charge on the lesser included offense of aggravated assault authorized a conviction on facts not included within the allegations of the attempted murder indictment. On rehearing, the majority again finds fundamental error because the offense of aggravated assault by the infliction of bodily injury is not a lesser included offense of attempted murder as charged in the indictment. I disagree with this result for a variety of reasons.
Initially, I note that the indictment charged that appellant attempted to kill the victim by shooting him with a gun and narrowly missing the victim. The charge allowed conviction if the jury found appellant actually caused bodily injury or threatened to inflict imminent bodily injury. The majority is misreading Article 37.09(2), V.A. C.C.P., in its determination of what constitutes a lesser included offense. It is clear that when Article 37.09(2), supra, is applied to the instant case that aggravated assault by causing bodily injury is a lesser included offense of attempted murder because a less serious injury or risk of injury is involved— i.e., death versus red marks on the individual’s leg.
Secondly, even if there was error, it is clear that the charge increased the State’s burden of proof and thus appellant was not harmed. If an individual inflicts bodily injury on another person, surely the infliction of that injury is also a threat of further possible injury. If the jury did in fact find appellant guilty of aggravated assault by causing bodily injury, the appellant was in no way harmed. The State merely had an increased burden of proof — of showing actual bodily injury. If the jury found appellant guilty of threatening the victim with imminent bodily injury, there certainly was no error.
Furthermore, the evidence shows that, although most of the pellets from the shotgun blast narrowly missed the victim, some actually struck him causing the red marks on his leg.
Trooper Marvin Keenan of the Department of Public Safety testified that he found the wadding and pellets from a shotgun shell on the floorboard of the victim’s truck. Keenan testified that he found evidence that the shot had richocheted inside the truck.
The victim testified that he was driving his dump truck when the appellant pulled up beside him and pointed a shotgun at him. The victim immediately slammed on his brakes. Simultaneously he heard a shotgun blast. After the smoke had cleared, the victim started his truck and drove on, in an attempt to evade the appellant. He drove to the local game warden’s house and reported the incident. As far as injuries sustained as a result of the blast, the record shows the following:
“Q. (Prosecutor) All right. Well, what about any of the shot, or ricochets? Can you tell whether any of them might have scraped your feet, or boots, or do you know?
“A. (The victim) Yes, sir. I had red spots on my left leg.
“Q. Actually, the main charge of the load missed you; is that it?
“A. Yes, sir. Well, it had done its damage as it come through the car. And it blew dirt and everything all over everything.
“Q. You got some red marks. You can’t really tell where from, though?
*571“A. No, sir, not really. As small as it was, it looked like BB marks, to me.”
Finally, and perhaps most important of all, the appellant, while testifying in his own behalf, admitted committing the aggravated assault:
“Q. (Defense Counsel) Tell the jury what you were doing with the gun, and how you were doing it.
“A. (Appellant) Well, I was driving the truck, and I had the gun stuck out on the passenger side, and with my hand like that — pointed down. And when I passed that man, you know, I didn’t pass him. I was going to shoot the hood, you know, to try to scare him, you know....
“Q. Jimmy, you have testified that you were shooting at the man’s vehicle. What part of the vehicle were you shooting at?
“A. I was shooting in front of him. I was going to shoot the hood, or something, you know. Scare him.
“Q. Were you aiming at Mr. Robinson?
tt * * *
“A. No....”
On cross-examination, appellant testified as follows:
“Q. (Prosecutor) If you will, I want you to demonstrate how you aimed that gun....
« * * *
“A. Okay. Well, I was driving like this — in the truck. And I had it—
“Q. You braced the thing on the side of the truck, didn’t you?
U * * *
“A. Yes. And I leaned it down like that, (indicating)
“Q. And pulled the trigger. You pulled it?
“A. Like that.
“Q. And then what did you do? Then you saw a big cloud of dust, and everything in there, didn’t you?
“A. Yes, sir....”
After reading both the majority panel and majority en banc opinions along with appellant’s testimony, I think it is obvious that the doctrine of fundamental error has been misconstrued and misapplied so that the results now emanating from this Court are patently absurd.
The doctrine of fundamental error is not to be applied in a vacuum. Rather, each case is to be decided on its own merits, individually. This is pointed out by the language of Article 36.19, V.A.C.C.P.:
“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17 and 36.18 has been disregarded, 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. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.”
The Legislature clearly expressed their intent that this Court should carefully examine each case when unpreserved jury charge error is alleged on appeal. Only when, and I emphasize “only”, the error is “calculated to injure the rights of the defendant” or when it is clear that the defendant did not receive a fair and impartial trial is this Court empowered to reverse a conviction because of unpreserved error in the jury charge. As Article 36.19, supra, is written, reversal of a conviction should not be the norm, but rather should be the exception. Unfortunately, the majority of the Court chooses to ignore this and again reverse an otherwise valid conviction without explaining how the áppellant was harmed.
I do not believe the charge contained error. And even if there was error, I fail to see how appellant was harmed by the charge given to the jury.
For these reasons, I must register my dissent.
W.C. DAVIS and CAMPBELL, JJ., join in this dissent.