dissenting.
I prepared the following opinion which was rejected by the majority. I now offer it to serve as my dissent. Each ground of error has been examined, and I believe the conviction should be affirmed.
The appellant in ten grounds of error asserts that the trial court erred: by overruling her motion for change of venue, by overruling her challenge of a prospective juror, by admitting a tape recording in evidence, and by erroneously charging the jury. Each of the appellant’s grounds of error should be overruled and the judgment affirmed.
The sufficiency of the evidence to sustain the conviction is not challenged; however, a brief summary of the facts will help in understanding the discussion of the grounds of error.
Joe Dugas and appellant agreed in May of 1978 to help each other kill Dugas’ in-laws (Bishop Neil Phillips and Esther Viola Phillips) and appellant’s former husband (Hubert Miller). Together they planned a beach trip alibi and prepared for the murder of Dugas’ in-laws by securing necessary weapons and materials and by digging a large grave in which the bodies would be buried. On July 1,1978, appellant and Du-gas drove his car to a prearranged site, where they left his car and drove her car to the Phillips’ home. Appellant and Dugas entered the home by cutting through the front screen door. They held the Phillips family (Mr. and Mrs. Phillips, their son, his wife and child) at gunpoint, ordered them into the son’s car, and drove to the pre-dug grave. Appellant shot and killed the adult members of the family and Dugas shot and killed the baby. Appellant and Dugas then disposed of the weapons and materials used and covered the grave. Dugas returned to the car the next day and burned it.
On July 3,1978, Joe Dugas told his brother Richard that he had killed five people; the next day Joe told Richard he thought he had committed the perfect murder, and related the details and the contrived alibi. On July 7, 1978, Richard Dugas told the Vidor police the story related to him by Joe. Appellant was arrested three days later. She soon retained an attorney but then released him and hired attorneys Bill Howell and Helmutt Erwing.
On November 14, 1978, the appellant and her attorneys met with James Michael Boulch, a hypnotist. The purpose of this meeting was to hypnotize appellant and have her describe under hypnosis her involvement in the murders. A pre-hypnotic interview and a hypnosis session were both tape recorded. The tape recording of the pre-hynotic interview was admitted in evidence and the admission of the tape at trial is the subject of several of appellant’s grounds of error.
The appellant says the trial court abused its discretion in failing to grant her motion for a change of venue in which she alleged she could not get a fair trial because of the extensive media coverage of the crimes. The evidence heard by the trial judge on the appellant’s motion for a change of venue, which was controverted by the State, was in conflict; this evidence raised an issue of whether the appellant’s trial in Jefferson County would be fair and impartial. The issue was decided against the appellant when the trial judge, as the trier of facts on the issue, overruled the motion for change of venue. The role of this Court then is to review the court’s ruling to determine whether there was an abuse of discretion, Barefoot v. State, 596 S.W.2d 875 *772(Tex.Cr.App.1980); Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978); Freeman v. State, 556 S.W.2d 287 (Tex.Cr.App.1977), and review the record to determine whether the appellant received a fair and impartial trial. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
Jefferson County had a population of 264,283 and there was a jury pool of 113,-768. The hearing on the change of venue was seven months after the commission of the offense. There was extensive coverage of the murders by the media; in 1978, in Jefferson County the top news stories concerned with crime were the accounts of these murders and the investigation by law enforcement officers. The media accounts appear to be objective, factual accounts, without editorial overtones.
A number of witnesses testified that in their opinion the appellant could not obtain a fair and impartial trial in Jefferson County; however, a number of witnesses testified that in their opinion the appellant could obtain a fair and impartial trial in Jefferson County. The trial judge in overruling the appellant’s motion for change of venue stated that he would consider the question during the jury voir dire and would order a change of venue if it appeared necessary.
Many prospective jurors and all but one of the jurors who served had heard or read about the case, but all of the jurors selected to serve testified they could be fair and impartial and would render a verdict solely on the evidence presented in court.
Although many people attended the trial, the record reflects that the trial judge exercised proper control of the people in the courtroom. When the seats in the courtroom were filled, the trial judge would not allow other people to stand in the courtroom. He made special provisions for seating members of the appellant’s family who were in attendance at the trial.
The trial court did not abuse its discretion in overruling the motion for change of venue and the record shows that the refusal to grant a change of venue did not deprive appellant of a fair and impartial trial.
The appellant argues that venireman Earl Howard Hensley’s voir dire responses show that he was unable to consider imposing any other punishment except the death penalty for capital murder and that he should have been excused for cause. The appellant exercised a peremptory strike on venireman Hensley after her challenge for cause was overruled. After she exhausted her peremptory challenges and her request for additional peremptory strikes was denied, she alleges she was forced to accept two jurors who were objectionable to her. The alleged error was preserved for review. Cuevas v. State, 575 S.W.2d 543 (Tex.Cr.App.1978); Hernandez v. State, 563 S.W.2d 947 (Tex.Cr.App.1978); Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274 (1944).
The appellant argues that venireman Hensley should have been excluded for cause under Art. 35.16(c)(2), V.A.C.C.P., which provides in pertinent part:
“(c) A challenge for cause may be made by the defense for any of the following reasons:
“(1) ....
“(2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.” [Emphasis supplied.]
A defendant is entitled to be tried by jurors who believe in the full range of punishment. Woodkins v. State, 542 S.W.2d 855 (Tex.Cr.App.1976); Pierce v. State, 604 S.W.2d 185 (Tex.Cr.App.1980); Cuevas v. State, supra; Smith v. State, 573 S.W.2d 763 (Tex.Cr.App.1977). When a venireman’s voir dire responses show that he holds strong convictions that death is the only punishment he would consider for a person guilty of capital murder, the defend*773ant’s challenge for cause should be granted by the trial court. Smith v. State, supra; Pierce v. State, supra. Defendant’s challenge for cause of a prospective juror who states he would consider life imprisonment as a punishment for capital murder only if the evidence shows the defendant to be insane similarly should be granted by the court. Cuevas v. State, supra.
The appellant contends that venireman Hensley’s voir dire examination reveals that he did not believe in the full range of punishment because he was unable to consider any penalty but death for a defendant convicted of capital murder, and urges that reversal is therefore required under Cuevas v. State, supra; Smith v. State, supra, and Pierce v. State, supra.
After carefully reviewing the whole of venireman Hensley’s voir dire examination, I do not find that he indicated the type of firm belief that death was the only appropriate punishment for capital murder which made the prospective jurors in Smith, Cue-vas, and Pierce unacceptable. Venireman Hensley’s responses are ambiguous, contradictory, and confused. During the defense attorney’s examination of Hensley, he stated that he would be compelled to assess a penalty of death if he found the defendant guilty of capital murder. When asked if he could conceive of any circumstances under which he would assess a sentence of life imprisonment, he first replied that he did not know, and then replied, “No.” Hensley also at that time stated that he could not conveive of any circumstances under which he would assess a sentence of life imprisonment for a conviction of capital murder.
The appellant then challenged the venireman for cause, and the court allowed the State to further question the venireman as follows before ruling on the challenges:
“Q. Now, my question to you is: If you found a Defendant guilty of Murder during the course of a kidnapping or a burglary — Let’s assume you found that person guilty of capital murder.
“A. Yes, sir.
Could you, as a juror, whether you heard evidence at the punishment phase of the trial, or didn’t hear any evidence at the punishment phase of the trial — whichever way it is — if you felt like the State had not proved to you beyond a reasonable doubt that the Defendant did it deliberately, would you write a ‘No’ answer? Q.
“A. Yes, sir, I would.
“Q. Knowing that writing a ‘No’ answer would cause the Defendant to be assessed a punishment of life?
“A. Yes, sir.
“Q. If you believed that after you found any Defendant guilty of Capital Murder ... if you believed that the State had failed to prove that to you beyond a reasonable doubt, would you answer Question Two, ‘No’?
“A. Yes, sir, I would.
“Q. So, that’s all I want to be sure of is that you will follow the evidence and base your verdict on the evidence. If you believe the answer should be ‘Yes’ from the evidence, whether it came from the guilt or innocence or the punishment you would answer it ‘Yes’?
“A. Yes, sir.
“Q. If you believe the answer was ‘No’, then whatever the evidence was, if you believed the answer was ‘No’, you would follow the evidence and answer the question, ‘No’, is that correct or not?
“A. I think I would.”
The trial court denied the challenge for cause, but allowed the defense attorney to further examine the venireman:
“Q. ... You could as a juror in the punishment phase of the hearing, possibly assess a life sentence even though you found her guilty of Capital Murder?
“A. Yes, sir, I could. I mean, I’m capable of doing it, but I didn’t say I would do it.
*774“Q. Right. Would you say you really don’t have the willingness to do it? Is that a problem with you, willingness rather than capability?
“A. Repeat the question.
“Q. Would it be fair for me to say, Mr. Hensley, that you have got the kind of feelings about this situation with Mrs. Burnett, that if you did find her guilty, as a juror along with other jurors, of Capital Murder, you would not want to give her life imprisonment? Would that be more your position on it? In other words, you could mentally, but you couldn’t with your heart; would that be fair to say?
“A. Yes, sir.
“Q. Briefly, Mr. Hensley, on range of punishment, can you consider anywhere from probation to life imprisonment for just plain Murder? Can you consider that range of punishment — punishment for plain Murder?
“A. Yes, sir.
“Q. All right. Can you consider under any circumstances the same punishment of life imprisonment for Capital Murder, under any circumstances?
“A. Yes, sir, I think I could consider it.”
Reviewing Hensley’s voir dire examination as a whole, it cannot be concluded that the trial court erred in overruling appellant’s challenge for cause of venireman Hensley. His voir dire responses do not indicate an inability to consider the full range of punishment for capital murder. This ground of error should be overruled.
Next, the appellant asserts that the trial court erred by admitting, over her objection, the statements made by Joe Dugas to Richard Dugas on July 4 because these statements were hearsay. Richard Dugas was permitted to relate the statements made to him by Joe Dugas which implicated appellant in the murders.
When there is sufficient independent evidence to establish a conspiracy, hearsay statements of a co-conspirator which are made prior to the time the object of the conspiracy is completed are admissible. May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981); Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977). They are admissible even though made after the murder was committed. May v. State, supra.
Independent evidence in the instant case is quite sufficient to establish the existence of a conspiracy between the appellant and Dugas. The testimony of witness Neel established that the appellant and Joe Dugas together solicited his (Neel’s) assistance in the murders. The existence and nature of the conspiracy was also established by the tape recording of appellant’s pre-hypnotic interview which was admitted in evidence.
The appellant argues, however, that the statements made to Richard Dugas were made after the conspiracy had terminated and that they were therefore inadmissible as hearsay. “A conspiracy is not finally terminated until everything has been done that was contemplated to be done by the conspirators.” Robins v. State, 134 Tex.Cr.R. 617, 117 S.W.2d 82 (1938).
The conspiracy in this case was not terminated on completion of the murder of the Phillips family. The murder of the appellant’s former husband and a beach trip alibi were explicitly planned by the appellant and Joe Dugas. Also, the disposal of the weapons used in murdering the Phillips family was an integral part of the conspiracy. Joe Dugas’ statements to Richard were made before there was any evidence to show the conspirators had either abandoned the plan or attempted to kill appellant’s former husband. The beach trip alibi was still being told, and Joe Dugas after his arrest on July 7, through a telephone call to his mother instructed his brothers to remove from his house weapons including a K-bar knife and a .45 caliber pistol used [as a bludgeon] when the Phillips family was kidnapped and killed. The conspiracy had not terminated when Joe Dugas made the statements to his brother Richard on July 3rd and 4th.
*775The appellant insists Joe Dugas’ statements to Richard were not admissible because they were not made in furtherance of the conspiracy. There is divided authority on the admissibility of a co-conspirator’s statement whether it must be in the furtherance of the conspiracy or only related to the conspiracy. See Federal Rules of Evidence, Rule 801; Model Code of Evidence, Rule 63(9). The rule generally stated is: the acts and declarations of a co-conspirator, must occur during the conspiracy, and be in furtherance of the conspiracy. This rule is recited especially in earlier cases in this jurisdiction. See, e.g. McKenzie v. State, 32 Tex.Cr.R. 568, 25 S.W. 426 (1894); Elliot v. State, 111 Tex.Cr.R. 534, 15 S.W.2d 648 (1929); and Morphey v. State, 119 Tex.Cr.R. 77, 45 S.W.2d 1099 (1932). However, later cases hold that the statement need only be related to the conspiracy. See Delgado v. State, 544 S.W.2d 929 (Tex.Cr.App.1977); White v. State, 451 S.W.2d 497 (Tex.Cr.App.1969); and Morgan v. State, 519 S.W.2d 449 (Tex.Cr.App.1975). However, as the facts appear in the record, the decision here need not reconcile these differences, since the conversations were made in furtherance of the conspiracy.
The .22 caliber rifle used to kill the Phillips family was a weapon which Joe Dugas had borrowed from his brother Richard. In the July 3rd conversation Joe said he had killed five people; he had dismantled the rifle and thrown the pieces away so he paid Richard $40 for the rifle. This conversation and this transaction were unquestionably in furtherance of the conspiracy and admissible. Helms v. State, 493 S.W.2d 227 (Tex.Cr.App.1973); Denny v. State, supra.
In his July 4th conversation with Richard, Joe said a woman, whom he did not name, had helped him murder the Phillips family. During this conversation Joe Dugas explained the beach alibi he and appellant had contrived. This rendering of the alibi to Richard Dugas was made in furtherance of the conspiracy. It was necessary to the concealment of the crime that Richard Du-gas be aware of the crime and of the alibi that Joe and appellant would tell “in case anyone asks.” The conversation of July 4th, being in the furtherance of the conspiracy was not inadmissible hearsay but was properly admitted in evidence.
In five grounds of error the appellant declares that the tape recording of her pre-hypnotic interview was erroneously admitted in evidence. She urges that the tape recording was erroneously admitted because: a proper predicate for its admission was not laid, its admission violated the attorney-client privilege, its admission violated an attorney work product doctrine. It is also urged that the tape recording was inadmissible because it had been altered and because it was made as a result of ineffective assistance of counsel.
In Edwards v. State, 551 S.W.2d 731 (Tex.Cr.App.1977), requirements said to be necessary to lay a proper foundation for the admission of a sound recording in a criminal trial were set out. Those requirements are: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.
Boulch testified that he had listened to the tape recording and found it accurately presented the interview as he remembered it. Thus the first three requirements are satisfied. Boulch’s testimony establishes the authenticity of the tape. The voluntary nature of the interview can be inferred from the testimony; there is no indication that appellant was induced by her attorneys against her will to participate in the interview. Calise Blanchard, an investigator for the Jefferson County District Attorney’s Office, testified he listened to the tape shortly after it was subpoenaed and shortly before it was offered in evidence; it was the same on both occasions. Although controverting testimony of experts was of*776fered, Boulch’s and Blanchard’s testimony together established the fact that the tape had not been tampered with and that it had been properly preserved while in possession of the State. The testimony of Boulch and appellant’s attorneys established the identity of the speakers as the appellant and Boulch. The trial judge ruled correctly that a proper predicate had been laid.
The appellant contends that the admission into evidence of the tape recorded conversation between appellant and Boulch violated appellant’s attorney-client privilege. Art. 38.10, V.A.C.C.P. The tape recording had been made prior to and during hypnosis of appellant by Boulch, and it was obtained from Boulch by grand jury subpoena. The State offered into evidence only that part of the tape recording made prior to hypnosis.
Appellant argues that the communications between herself and Boulch were privileged since Boulch was an “agent”- — a necessary médium of communication — of the defense attorneys.
The attorney-client privilege is summarized by Wigmore as follows:
“(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that person, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.”
The privilege in Texas has been embodied in Art. 38.10, V.A.C.C.P. which reads in pertinent part:
“... an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship.”
The privilege also protects communications to the attorney’s agents who are indispensible to the communication between the attorney and client. Wigmore, Evidence, supra, Sec. 2301; United States v. Pipkins, 528 F.2d 559 (5th Cir.1976), cert. denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1191. However, when the client departs from the purpose of seeking legal advice, the privilege will not protect him, and circumstances which indicate that the communication is not confidential will negate the privilege. Ballard v. Ballard, 296 S.W.2d 811 (Tex.Civ.App.—Galveston, 1956); Johnson v. State, 76 Tex.Cr.R. 346, 174 S.W. 1047 (1915).
At appellant’s hearing on her pretrial motion to suppress the tape recording, a fact issue was raised as to the purpose of the hypnosis. Deborah Jackson, a cell mate of appellant, testified that “she [appellant] said the reason for making the tapes was to alleviate the depression she had at the time,” and the District Attorney James S. McGrath testified that, in response to his [McGrath’s] query as to the purpose of the hypnotic interview, defense counsel Howell stated that the defense team had publishing rights to appellant’s story and the hypnosis would be useful in writing a book. Although appellant’s trial attorneys and Boulch testified that the purpose of the hypnosis was to supplement the attorney’s investigation, there was sufficient evidence for the trial court to find that the communication was not privileged because it was made for purposes other than appellant’s defense. In the appellant’s brief it is admitted: “There is some indication that the purpose [of the hypnotic interview] was to gather details about the offenses from Appellant for a book the attorneys were planning to write.” The trial court’s determination of the fact issue was within its discretion and should not be disturbed upon appeal. Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974); Maldonado v. State, 425 S.W.2d 646 (Tex.Cr.App.1968). The decision could rest on this basis.
However, assuming that the contents of the tape recording were in fact privileged communications between appellant and her attorneys, any protection afforded by the privilege was lost by the disclosure of the contents to certain third persons. Where the presence of a third person is necessary for communication to be made to the attorney, the policy of the privilege will protect *777the client. 8 Wigmore on Evidence, supra, Sec. 2311, p. 602. Defense counsel Erwing testified that he delivered a copy of the taped conversation to David Lee Salmon, a private investigator, for Salmon to test and reproduce and for his secretary to transcribe. Although this may have saved the defense counsel the inconvenience of having the transcription done in their offices, it cannot be said that Salmon nor his associates were necessary media of communication between appellant and her attorneys. The contents of the tape were also revealed to an investigator, Joe Clark, who cannot be considered a necessary link in communication between appellant and her attorneys.
In an analogous case, Himmelfarb v. United States, 175 F.2d 924, cert. denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949) an accountant was employed directly by the attorney, the accountant’s testimony and workpapers were held to be outside the attorney-client privilege. The accountant was present at meetings between the defendant and his attorney and was later called as a witness by the prosecutor. The testimony of the accountant was objected to by the defense on the ground that the accountant was an agent of the attorney and thus the communications between the attorney, accountant, and taxpayer were protected. The court held to the contrary, however, stating: “[The accountant’s] presence was not indispensible in the sense that the presence of an attorney’s secretary may be. It was a convenience which, unfortunately for the accused, served to remove the privileged character of whatever communications were made.”
Before the tape was offered in evidence it had been exposed to Salmon, his associates, and Clark. The contents of the tape were thus revealed to numerous third persons who cannot be considered agents indispensible to the communication between appellant and her attorneys. If the communications on the tape were intended to be confidential, the necessary care to preserve their confidential nature was not taken. The lack of precaution, if not indicative of the original non-privileged status of the communication, later operated to destroy whatever privilege had once existed. Whatever the intended result was, the degree of disclosure reached that point where fairness would require that the privilege cease. The risk of insufficient precaution is upon the client. See 8 Wigmore, Evidence, Sec. 2327 (McNaughton rev. 1961); In re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672 (1979). Persons who were not necessary media of communication between appellant and her attorneys were given access to the contents of the tape. Therefore the attorney-client privilege was waived. Morton v. Smith, 44 S.W. 683 (Tex.Civ.App.1898).
The appellant’s next contention that the admission of the taped interview violated the work product doctrine is similarly without merit. This mechanical tape recording of conversation is not a work product in the sense that notes and reports of geologists, accountants, or physicians are work products. The applicability of the work-product doctrine is generally limited to pretrial discovery procedures. In the instant case, the trial court ruled on the admissibility of the tape at trial. However, assuming the applicability of the work-product doctrine as it is here urged, the privilege afforded by the doctrine was waived. The disclosure of the tape’s contents to certain third persons operated as a waiver of the work-product protection in the same manner as it constituted a waiver of the attorney-client privilege claimed by appellant.
The appellant’s contention that her counsel were ineffective because they allowed the hypnotic interview is also without merit. Hypnotic interviews of witnesses may be legitimate in the investigation of some cases. The effectiveness of counsel is to be judged by the standard of “reasonably effective assistance.” Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980). In applying this standard we must look to the totality of representation. See Johnson v. State, 614 S.W.2d 148 (Tex.Cr.App.1981); Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976). The overall record shows that the totality of representation rendered by appellant’s trial counsel was adequate to meet *778constitutional standards as applied by the Supreme Court and by this Court.
The appellant also contends that the trial court’s charge erroneously authorized the jury to convict her on a theory not alleged in the indictment; it was alleged she had “intentionally cause[d] the death of Jason Blair Phillips,” while the charge, in the application of law to the facts, used the words “intentionally or knowingly caused the death of JASON BLAIR PHILLIPS.” The appellant did not raise this objection in the trial court and is therefore not entitled to relief unless, as she now urges, the charge presents fundamental error. In making this determination, this court should review the charge as a whole. Jackson v. State, 591 S.W.2d 820 (Tex.Cr.App.1979); Daniel v. State, 486 S.W.2d 944 (Tex.Cr.App.1972).
It has been held that a court’s charge which permits conviction on proof less than that required by the allegations in the indictment, is fatally defective. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979). The trial court in the present ease correctly instructed the jury in the abstract portion of the charge on the law of capital murder and murder. In the application of the law to the facts, the trial court instructed:
“[I]f you believe from the evidence beyond a reasonable doubt that ... the Defendant ... intentionally or knowingly caused the death of JASON BLAIR PHILLIPS, by shooting him with a gun, and that the Murder was intentionally committed in the course of committing or attempting to commit kidnapping, you shall find the Defendant guilty of the offense of Capital Murder.” [Emphasis supplied.]
It is apparent that the charge as a whole does not authorize the jurors to convict the appellant of capital murder unless they found she had committed the murder intentionally, as alleged in the indictment. The rights of the accused were adequately protected in the charge; no fundamental error is presented. See Jackson v. State, 591 S.W.2d 820 (Tex.Cr.App.1979); Plunkett v. State, 580 S.W.2d 815 (Tex.Cr.App.1979).
The appellant argues that the charge, by omitting the kidnap victim’s name, is fundamentally defective because: it omits an essential element alleged in the indictment; it authorizes a conviction on a theory not alleged in the indictment; and it enlarges upon the allegations in the indictment by allowing the jury to convict the appellant on a finding that she had committed the murder during the kidnapping or attempted kidnapping of any person.
The indictment alleges in pertinent part that on July 1, 1978, the appellant:
“did then and there intentionally cause the death of Jason Blair Phillips by shooting him with a gun, and that the said LINDA MAY BURNETT was then and there in the course of committing and attempting to commit the offense of kidnapping, upon and of the said Jason Blair Phillips.”
The portion of the charge of which appellant complains states:
“Now, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about July 1, 1978, the Defendant LINDA MAY BURNETT, acting alone or as a party with JOE DUGAS, intentionally or knowingly caused the death of JASON BLAIR PHILLIPS by shooting him with a gun, and that the murder was intentionally committed in the course of committing or attempting to commit kidnapping, you shall find the Defendant guilty of the offense of Capital Murder.”
The naming of the kidnap victim is not an essential element of the offense of capital murder committed in the course of committing or attempting to commit the offense of kidnapping. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980). Therefore, the court in this case did not omit an essential element of the offense by failing to name the victim of the kidnapping in the charge.
The court’s charge authorized conviction only on the theory that the murder was committed while in the course of committing the offense of kidnapping. V.T.C.A. Penal Code, Sec. 19.03(a)(2).
*779The appellant’s contention that the charge is fundamentally defective because by omitting the name of the kidnap victim it enlarged on the allegations of the indictment is without merit for the reasons stated in Sattiewhite v. State, 600 S.W.2d 277 (Tex.Cr.App.1980) which follows:
“[W]here the charge of the court applying the law to the facts correctly requires the jury to find every essential element of the offense alleged in the indictment and comports with the legal theory presented by the State through evidence that proves every factual allegation made in the charging instrument, an accused who perceives some error of omission in failure of the charge to reflect one or more factual details averred must call the matter to the attention of the trial court pursuant to Articles 36.14, 36.15, or 36.16, V.A.C.C.P. for a determination of whether corrective action is appropriate, in order to preserve the point for review under a ground of error in his appellate brief. This is because unless otherwise faulty, the charge thus described does not present fundamental error.”
600 S.W.2d at 285, 286. (Emphasis in original.) Applying this standard, the court held that since the indictment alleged and the proof showed that the defendant had engaged in conduct that constituted every essential element of aggravated robbery, and the charge required the jury to find every essential element of the offense of aggravated robbery consonant with the legal theory developed by the evidence, no fundamental error had been shown.
Applying standards of Sattiewhite to the case at bar, no fundamental error has been shown; the indictment alleged and the State proved that the appellant had committed every essential element of capital murder consistent with the theory alleged in the indictment and supported by the evidence. Under the facts of this case fundamental error is not presented. Sattiewhite v. State, supra; Trostle v. State, 588 S.W.2d 925 (Tex.Cr.App.1980); Layman v. State, 73 S.W.2d 97 (Tex.Cr.App.1934); see also Turner v. State, 462 S.W.2d 9 (Tex.Cr.App.1969); Thomas v. State, 605 S.W.2d 290 (Tex.Cr.App.1980).
The judgment should be affirmed.
TOM G. DAVIS, W.C. DAVIS, McCOR-MICK, JJ., join in this dissent.