OPINION ON STATE’S MOTION FOR REHEARING
TOM G. DAVIS, Judge.Appeal is taken from a conviction for theft from the person. V.T.C.A. Penal Code, Sec. 31.03(d)(4XB). Punishment was assessed at ten years.
*708On original submission, the Court reversed appellant’s conviction after concluding that the trial court improperly refused his requested charge on misdemeanor theft of property with value of $5.00 or more but less than $20.00. Y.T.C.A. Penal Code, Sec. 31.03(d)(2)(A). We held that Sec. 31.-03(d)(2)(A), supra, can be a lesser included offense of Sec. 31.03(d)(4)(B), supra, under Art. 37.09(2), V.A.C.C.P.
Art. 37.09(2), V.A.C.C.P., reads:
“An offense is a lesser included offense if:
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;” (Emphasis added.)
In our original opinion, we noted that: “The offense alleged and proven by the State and the offense admitted by appellant when he testified differ only in the ‘less serious injury or risk of injury to the same person,’ i.e., to the owner of the property. Theft from the person includes a risk of injury to the person from whom the property is taken that is not present when theft is committed by taking property from the sidewalk, as appellant testified the facts to have been. Injury resulting from deprivation of the value of the property is the same in both instances even though proof of the value is not required to establish theft from the person.” (Emphasis added.)
This analysis is sound if “offense” as used in Art. 37.09(2), Y.A.C.C.P., refers only to the conduct of the accused.
But conduct, under Sec. 1.03(a) of the Penal Code, “does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioner’s court, or rule authorized by and lawfully adopted under a statute.”
Thus, the “offense” that must differ from the “offense charged” in one way only is the “offense” as established by statute.
In the instant case, Sec. 31.03(d)(4)(B), supra, is the “offense charged” and Sec. 31.03(d)(2)(A), supra is the purportedly “lesser included offense.” When the two “offenses” are compared, it is clear that less serious risk of injury under (d)(2)(A) is not the only difference between them. Under (d)(2)(A) the value of the property stolen must be established. Under (d)(4)(B) this is not necessary. Thus, according to the wording of Art. 37.09(2), V.A.C.C.P., (d)(2)(A) is not a lesser included offense of (d)(4)(B).
The “offense” of theft as defined by statute must, in any given case, include one of the provisions of Subsection (d). An examination of our case law will illuminate this point.
In Peoples v. State, 566 S.W.2d 640, 641 (Tex.Cr.App.1978), appellant was convicted of theft under V.T.C.A. Penal Code, Sec. 31.03(d)(4)(A), a third degree felony. The indictment was ruled fundamentally defective for failing to allege value of the property stolen. We held that, “the value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment.” See also Smith v. State, 573 S.W.2d 546 (Tex.Cr.App.1978), where the conviction was for theft of over $200.00. The indictment, which alleged value over $200.00 but failed to allege value under $10,000.00, was not fundamentally defective since it invoked the jurisdiction of the district court, but we noted that if the proof had shown theft of over $10,000.00 (a second degree felony) the indictment would limit the conviction to a third degree felony.
In Christiansen v. State, 575 S.W.2d 42, 44 (Tex.Cr.App.1979), we stated that, “Receipt of property and proof of its value are critical elements in the offense of theft.” (Emphasis added.)
Appellant was charged with appropriating, “property, namely CASH MONEY, owned by Paul Gomez Martinez, hereafter styled the Complainant, with the intent to deprive the Complainant, and the Defend*709ant stole the property from the person of the Complainant.” (Emphasis added.) If the indictment had not alleged theft “from the person of the Complainant” it would have been fundamentally defective for failure to invoke the jurisdiction of the court.
Thus, under our decisions interpreting Sec. 31.03, supra, the value of the property stolen is an essential element of the offense when it is made the basis of punishment and theft from the person is an essential element of the offense when it is made the basis of punishment. Put another way, the “offense” of theft as defined by statute will always include one of the provisions of Subsection (d).
This being so, (d)(2)(A) does not differ from (d)(4)(B), only in the respect that a less serious risk of injury to the same person suffices to establish the commission of (dX2)(A). Less serious risk of injury does not alone suffice. Value between $5.00 and $20.00 also must be shown. Accordingly, the appellant was not entitled to a charge on misdemeanor theft as a lesser included offense of theft from the person.
The State’s motion for rehearing is granted and the judgment is affirmed.1
ODOM and TEAGUE, JJ., dissent for the reasons stated in the opinion on original submission. MILLER, J., not participating..Appellant only raised the one ground of error discussed herein.