(dissenting).
Appellant was indicted for rape under the old Penal Code. The jury found him guilty of “rape as charged in the indictment.” The indictment charged that appellant:
“did unlawfully, in and upon F_J_M_, a woman, then and there by force, threats, and fraud, and without the consent of the said Complainant, ravish and have carnal knowledge of the said Complainant.”
Appellant contends, as stated by the majority, that the trial court erred in refusing his election to be punished under the new Penal Code provision for second degree felony rape under Section 21.02, V.T.C.A. Penal Code.
*859The jury’s finding of guilt would support assessment of punishment under Sec. 21.02, supra, for rape, because the jury, in returning a verdict of guilty as charged in the indictment, found facts sufficient to support a conviction under that Section. Rape, under Sec. 21.02, supra, is a second degree felony and appellant Ambers was entitled to the submission of that range of punishment to the jury. (See parts XI, paragraph 1; XIII; XVI, of my opinion concurring in part and dissenting in part in Wright v. State, 527 S.W.2d 859, this day decided.)
Instead the punishment range under Section 21.03, V.T.C.A. Penal Code, for first degree felony was submitted. That Section defines aggravated rape and affixes a punishment thereto. It requires for conviction thereunder that in addition to showing commission of rape under Sec. 21.02, supra, it must be alleged and proved beyond a reasonable doubt that the accused in commission of the offense:
“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.” Sec. 21.03, supra.
It is obvious that no allegation of any such aggravating circumstances was made in the indictment. (See parts IX, XIII, of my opinion in Wright, supra.) The verdict of “guilty as charged in the indictment” therefore does not constitute a finding that such circumstances were proven, and none of the additional fact issues under Sec. 21.03, supra, were even submitted to the jury. (See parts XIII, XIV, in my opinion in Wright, supra.) Appellant was neither charged with nor convicted of the commission of acts constituting an offense under Sec. 21.-03, supra, and that Section affixes no punishment to the offense for which appellant was charged and convicted.1 Punishment was assessed at ninety-nine years, outside the range that should have been charged.
For violation of appellant’s. right to demand pleading and proof beyond a reasonable doubt, and for deviations from the required procedure denying him a fair trial, the judgment should be reversed and the cause remanded.
. The author of the majority opinion, speaking for the Court in Day v. State, - S.W.2d - (1975), wrote:
“. . . the dissent . . . infers that if the proof reflects some offense other than charged in the indictment, then no jury instruction on the lesser included offense of the offense charged needs to be given regardless of the evidence raising the same. This is strange logic indeed.”
Even stranger logic is that employed by the majority in this case, which holds that if the evidence reflects some offense other than that charged in the indictment, of which charged offense the defendant has been convicted, it is permissible for the trial court to charge the range of punishment for the other offense shown in the evidence and ignore the range of punishment affixed by law to the offense described by the facts charged and found by the jury to be true.