dissenting.
The Court reverses this conviction upon the authority of King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980). The King case should be overruled, but in any event, it is readily distinguishable from the instant case.
In King, the indictment alleged murder in the course of kidnapping, robbery, and *303aggravated rape. The proof showed the named complainant to have been a victim of the murder, kidnapping and robbery, but a second person, not named in the indictment, to have been the sole victim of the rape.
The State contended in King that, because the named complainant was shown to have been the victim of the kidnapping and robbery, the indictment put King upon sufficient notice of the facts to be proved. The Court, in rejecting this argument, said:
“While this argument might be well taken had the State alleged only kidnapping and robbery as the aggravating offenses committed or attempted during which the murder occurred, such was not the case; Article 21.03, V.A.C.C.P., directs:
“Everything should be stated in an indictment which is necessary to be proved.
“By virtue of the State’s additional allegation of aggravated rape, it was necessary that evidence of an attempted commission or commission of that conduct be presented by the State in order to meet its burden of proof. Indeed, such evidence was in fact adduced at trial through the testimony of the aggravated rape victim. As such, the name of the aggravated rape victim was clearly a fact which was critical to appellant’s defense preparation, and he was entitled to the benefit of that fact upon his timely request therefor. See Cruise, supra. [Cruise v. State, 587 S.W.2d 403 (Tex.Cr.App.)] Furthermore, the allegation of such fact was required to precisely distinguish the conduct alleged from other conduct by the accused, and thereby insure a bar to a subsequent prosecution for the same offense. Article 21.04, V.A.C.C.P.”
The instant case presents just that case where the State’s argument is well taken. The sole victim of the acts alleged in the indictment was the named complainant. Every fact of which appellant required notice was available in the indictment. No surprise could have befallen the appellant when the State proved that the kidnapping victim was the same boy who was murdered.
The State’s motion for rehearing should be granted.