dissenting.
I dissent. Appellant’s first ground of error alleges that the trial court reversibly erred in failing to grant his specially requested charge on the lesser included offense of theft. Although I dissented from this Court’s En Banc decision in Campbell v. State, 571 S.W.2d 161, I feel that the Panels of this Court should adhere to the decisions of the En Banc Court. Therefore, it is clear that theft can be a lesser included offense of aggravated robbery if “theft was without question proven within the facts relied on by the State to make its case of aggravated robbery.” Id. at 162. As further stated in Campbell, “the issue is whether the State’s case as presented to prove the offense charged included proof of theft.” Turning to the facts of this case, I find the following.
First, prior to the reading of the charge of the court to the jury, appellant’s trial counsel submitted two specially requested instructions which would apply the law of theft to the facts of the case and permit the jury to consider theft as a lesser included offense in deliberating on the guilt and innocence of appellant. The only difference between the two specially requested instructions is that the latter one included a range of value for the current money allegedly stolen from the complainant. Both specially requested instructions were refused by the trial court. Further, appellant’s trial counsel objected to the charge of the court for the failure to include the lesser included offense charge of theft. This objection was overruled and there is a certification of the presentment of the objection before the reading of the charge and the trial court’s ruling on such exception by the presiding judge. Therefore, appellant has successfully preserved this ground of error for review. See Article 36.15, V.A.C.C.P.
*725Second, the State presented three witnesses in its case in chief: the complainant and the two investigating police officers. The complainant testified that at approximately 9:15 p. m. on July 7, 1975, he responded to his doorbell and admitted a young woman seeking the use of his telephone on account of problems with her automobile. After apparently being unsuccessful in reaching anyone, she requested a glass of water. The complainant rose from his chair and began to obtain the glass of water when two men burst into his house, one carrying a pistol pointed at the complainant’s head and stating, “Don’t move, you S_ of a B_” The complainant identified the appellant as the speaking gunman. The complainant stated that the appellant struck him on the right temple, breaking his glasses and proceeded to force him upon the floor. After being frisked, he was asked where his money was. He stated it was in the bedroom and he was then forced into the bedroom with the gun at his head. The men then took more than a hundred dollars from his pants pocket and his credit card holder before placing the complainant in a hallway furnace closet. The complainant testified that the appellant said, “[W]e ought to kill the S_ of a B_.” The complainant testified that his money and credit cards were taken without his effective consent. After the intruders departed, he notified the police and gave the investigating officers a description of the three individuals. The next day he identified the woman who was involved in a photograph array. Less than one month after the offense the complainant identified the defendant in another photograph array. On cross-examination, the complainant testified that he may have possibly seen the defendant once before when he was robbed two or three years previously. His identification of the appellant as the robber at that time was at best uncertain. The complainant further admitted to having five prior felony DWI convictions and admitted that he never identified any other individual, in person or by way of photograph array, as the other male intruder on July 7,1975. On redirect examination the complainant admitted that he was possibly an alcoholic, but that he was positive about the appellant’s presence and activities on the night of July 7. On recross-examination the complainant denied that the appellant was ever in his home in the company of one Jack Locklin.
The appellant testified in his own behalf and admitted prior felony convictions for theft, burglary (2), and passing a forged instrument. He further testified that he knew the complainant since he was in eighth grade through Jack Locklin and that he had been at the complainant’s home numerous times. He testified that the complainant bought him and Jack Locklin beer and lent them his auto. This relationship continued until the appellant entered prison on his first felony conviction. He testified that he had engaged in homosexual relationships (oral sodomy) with the complainant as did his companion Jack Locklin. With respect to the events of July 7, 1975, the appellant testified that he took a woman by the name of Nancy Nabors to the complainant’s home after she had asked him if he knew of any way she could make money. Appellant testified that he knew she was a prostitute from his prior familiarity with her. They arrived at the complainant’s home, rang his doorbell, and were shortly thereafter invited to enter. After sitting a short while in the complainant’s living room, the woman asked where the complainant’s bathroom was and the complainant escorted her to the bathroom in his bedroom, passing by the bathroom in the hallway. Appellant testified that he sat in the living room watching television for approximately 20 to 25 minutes at which time he was called back to the bedroom. The woman told the appellant the victim would not pay her what he owed her for her services. Appellant then asked the complainant whether he would pay, to which he received no response. When he asked the complainant where his money was, the complainant pointed to his billfold on a table at which time the appellant took $50.00 out. Thereupon appellant and the woman departed. The appellant testified that the only people present in the complainant’s *726home that evening where he, the woman, and the complainant, that he did not harm the complainant, that he did not threaten the complainant with any harm, and that he did not have any firearm or gun. He further testified that he thought that the complainant’s silence was a tacit approval of his taking of the money. On cross-examination the appellant testified that the complainant was not wearing any glasses when he entered and that he used his glasses only for reading.
Upon being recalled by the State, the complainant testified that he had met Jack Locklin in 1966 or 1967 when he picked him up while walking along a highway. He stated that he had given Jack Locklin beer but had no sexual relations with him. He admitted having sexual relations with Jack Locklin’s brother, Roger. He testified that he was previously robbed by Jack Locklin’s brother, Roger, but did not report his name to the police for fear of shame and adverse publicity to his business. He testified that Roger Locklin blackmailed him for approximately five or six months with threats of destroying his business if payments of money were not forthcoming. He testified that he provided Jack Locklin beer only in order to have sexual relations with Roger Locklin. The complainant admitted that he was bisexual, but that he had no sexual relations with anyone on July 7, 1975.
Jack Locklin testified that he was the appellant’s brother-in-law by way of marriage to the sister of appellant’s wife. He testified that he was often in the complainant’s home and that the complainant was introduced to the appellant by him. Appellant and Jack Locklin were acquainted as fellow students in the same grade school. When recalled by the State, Jack Locklin testified that he drank beer, played poker, and had sexual relations with the complainant while at his home. He further testified that he did not know whether the complainant had sexual relations with the appellant or his brother, Roger Locklin.
The majority admittedly reinterprets the decision reached in Campbell, supra, to create a two-tiered approach to the question of whether a defendant is entitled to a requested instruction on a lesser included offense. In addressing the second step of their analysis, the majority now requires that the State be guaranteed at least some reward for its efforts in that they require a judicial confession to the lesser offense before an instruction on it is required.
In this case the “taking” was the only undisputed element. Appellant subjectively thought he had complainant’s “effective consent” while complainant denied same. The use of a weapon was likewise disputed. If the jury system is to have any meaning, the jury should be given the entire range of potential offenses supported by the charges and evidence. Otherwise, under the majority’s interpretation of Campbell, supra, the jury must believe all or none of the testimony of the State’s witnesses. Here it is reasonable that the jury would have disbelieved the complainant’s testimony about the weapon and the appellant’s testimony about this subjective belief that he acted with the complainant’s “effective consent.” In other words, the evidence is sufficient to sustain a conviction for aggravated robbery or theft! Appellant was entitled to his requested instruction. I dissent.