¶1DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
¶2(dissenting).
¶3The majority overrules the State’s motion for rehearing without written opinion. The motion should be granted. We should hold that appellant’s plea of guilty was voluntarily made and that the trial court did not err in failing to withdraw appellant’s plea of guilty on its own motion in light of eviden-tiary developments, as contended in appellant’s second and third grounds of error.
¶4*363The following, prepared by Commissioner H. P. Green, is adopted as a part of this opinion:
¶5“After the proceedings during arraignment and thereafter when admonishments of appellant and his co-defendants were before the jury, as stated in the opinion on original submission, the court accepted the pleas of guilty of each defendant, including appellant, and the State proceeded to offer its testimony. The written stipulation of evidence signed by appellant was admitted without objection. In this stipulation appellant waived the reading of the indictment and stated:
“ ‘Accordingly, having waived my Federal and State constitutional rights against self-incrimination and after having been sworn, upon oath, I judicially confess to the following facts and agree and stipulate that these facts are true and correct and constitute the evidence in this case.
“ ‘On November 1, 1974, in Dallas County, Texas, I did participate in the attempt to take the money of Agapito Hernandez at gunpoint as charged in the indictment.’
¶6“In addition to the stipulation, the State’s evidence consisted of the testimony of two eyewitness members of a stake-out squad of police officers at the location of the offense. Their testimony of the events was sufficient to establish the guilt of each of the three defendants, including appellant, of the robbery.
¶7“After the State rested, appellant again urged his motion to dismiss the indictment which he had made after arraignment, and as stated in our opinion on original submission, and the court again overruled it.
¶8“Appellant then took the stand and on direct examination gave testimony addressed to his application for probation. On cross-examination, he admitted entering the 7-11 store in question with his companions and stated that at the time he had with him a loaded .22 caliber pistol. In answer to the question: ‘Whose idea was it to go rob the store?’ he answered, ‘Well, like I said, it’s something that sort of occurred, you know. We didn’t just sit down and plan and say we are going to do it like this right here (indicating).’ He also stated:
“ ‘Well, is it all right if I say that I am admitting I am guilty and I think it seems like that should be substantial, that should be enough. I admit that I attempted to rob a store, and I am asking for another chance for probation, but all the other questions, I don’t understand why it’s really necessary. I did attempt to rob the store.’
“In connection with what actually occurred, he testified:
“ ‘A. Well, anyway, it was kind of like, when I pulled the pistol out, I was pulling it out, and just as I brought it out, I immediately started hiding it, see, I didn’t say, “Well, I want your money”, because — Well, when I pulled it out, the police pulled up, so I just stuck it up under something, you see, I never did get a chance to say, “Here, I’m asking for your money”, when the police pulled up I took the gun out, in the process of hiding it.
“ ‘Q. If the police hadn’t pulled up, what would you have done?
“ ‘A. If the police wouldn’t have pulled up?
“‘Q. Right.
“ ‘A. Well, I mean, it was sort of like this — okay—if this is what you want to hear, I would have robbed him.’
“ ‘Q. Well, you were going to speak to him had the police not pulled up, correct?
“ ‘A. The police pulled up and stopped me from robbing him.’
¶9He later testified that:
“ ‘It wasn’t planned, I attempted to rob a store, and it wasn’t complete. I made a mistake, and I am asking for a chance.
“ ‘Q. What if the man wouldn’t give you the money?
“ ‘A. I wouldn’t have used the gun.
*364“ ‘Q. If you weren’t going to use it, why did you take it? Why did you pull it out? Why did you point it at him?
“ ‘A. Why did I point it at him?
‘“Q. Yes.
“ ‘A. Well, like I said, I was attempting to rob him.’
¶10“The indictment against appellant alleged that on or about November 1,1974, in Dallas County, Jerry Alonzo Gates
“ ‘did then and there unlawfully while in the course of committing theft and with the intent to obtain and maintain control of the property of Agapito Hernandez, hereinafter called “complainant” the said property being current money of the United States of America, without the effective consent of the said complainant and with the intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, towit, a handgun, knowingly and intentionally threaten and place the said complainant in fear of imminent bodily injury.’
¶11“This indictment complies with the elements of aggravated robbery as set forth in V.T.C.A., Penal Code, Sections 29.02 and 29.03.
¶12“It is well established by the decisions of this Court involving robberies committed since the effective date of the new Penal Code that the actual commission of the offense of theft is not a prerequisite to the commission of robbery. See Earl v. State, [Tex.Cr.App.] 514 S.W.2d 273; Fisher v. State, [Tex.Cr.App.] 538 S.W.2d 623; Servance v. State, [Tex.Cr.App.] 537 S.W.2d 753; Watson v. State, [Tex.Cr.App.] 532 S.W.2d 619; Reese v. State, [Tex.Cr.App.] 531 S.W.2d 638.
“In Watson v. State, supra, we said:
“ ‘. . . Only recently in Reese v. State, supra, we took note of Earl v. State, 514 S.W.2d 273 (Tex.Cr.App.1974), where we said that “the actual commission of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same.” See also Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1974). This is so because the statute defining robbery (V.T.C.A. Penal Code, Sec. 29.02) used the term “in the course of committing theft.” That phrase as defined in V.T.C.A. Penal Code, Sec. 29.01, “means conduct that occurs' in an attempt to commit, during the commission or in immediate flight after the attempt or commission of theft.”
“ ‘It is clear that under the new Penal Code there is no requirement that in every robbery case there must be a fraudulent taking of property as an essential element of the case as was required under the former Code. See Article 1408, Vernon’s Ann.P.C., 1925.’ (Emphasis Supplied)
“Considering the testimony of appellant that he entered the store with his companions, pointed a loaded pistol at the clerk with the intention to rob ‘the store’1 and would have completed the robbery if police had not intervened, such testimony supports his stipulation that the offense of robbery was committed. His testimony regarding ‘attempted robbery’ was a conclusion of his, obviously referring to his failure to complete the theft, and should not be permitted to govern over his other testimony concerning the facts. As demonstrated by his own testimony, he entered the store, exhibited to the clerk a loaded pistol while in the course of committing theft (see V.T.C.A. Penal Code, Sec. 29.01), even though theft was not actually committed, and at the time he had the intent to obtain and maintain control of complainant’s property. See V.T.C.A. Penal Code, Secs. 29.01, 29.02, 29.03; Watson v. State, supra; Earl v. State, supra; Reese v. State, supra.
“1. Actually, he meant to rob the clerk of the store, who, the evidence shows, was Agapito Hernandez.
“In Lewis v. State, [Tex.Cr.App.] 529 S.W.2d 550, we cited with approval Reyna v. State, [Tex.Cr.App.] 434 S.W.2d 362, and said:
*365“ ‘Reyna v. State, supra, further held that the trial court is only obligated to withdraw a defendant’s plea of guilty when testimony is introduced which “ . . . makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn.
“ ‘ “[T]hat evidence must go further than just tending to show a defensive issue, but must reasonably and fairly present such issue before the trial court would be required to withdraw the guilty plea.” 434 S.W.2d 362, 365.
“ ‘See also Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Navarro v. State, 141 Tex.Cr.R. [196], 147 S.W.2d 1081 (1941); Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915).’
“See also Davis v. State, [Tex.Cr.App.] 507 S.W.2d 740.
“In Cooper v. State, [Tex.Cr.App.] 537 S.W.2d 940, we said:
“ ‘We note also that when the evidence introduced makes evident the innocence of the accused, or if it is clear that the evidence sufficiently raises a defensive issue the court is required to withdraw the guilty or nolo plea on its own motion. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Burks v. State, 165 S.W.2d 460, 145 Tex.Cr.R. [15] 19 (Tex.Cr.App.1942).’
“In Cooper, the defendant pled nolo con-tendere, but testified to an alibi, which testimony was corroborated by another witness. This testimony if true would have been a complete defense to the charge against the defendant, and we held that the trial court reversibly erred in failing to withdraw the plea of nolo contendere. See also Rayson v. State, [160 Tex.Cr.R. 103] 267 S.W.2d 153; Fite v. State, [163 Tex.Cr.R. 279] 290 S.W.2d 897.
“In the instant case . . . the testimony of appellant was not sufficient if believed to make evident the innocence of appellant of the offense of aggravated robbery, and did not fairly raise an issue as to such fact. The trial court did not err in failing to withdraw sua sponte appellant’s plea of guilty.
“. . . [T]he record establishes that appellant’s plea of guilty was made freely and voluntarily after being fully admonished by the court of the consequences of such plea. See Art. 26.13, V.A.C.C.P.
U …
“Green, Commissioner”
¶13Appellant admitted that he had a loaded pistol on this occasion and that he exhibited it in the course of committing the crime of theft. This establishes robbery as the majority correctly decided in the opinion on original submission.
¶14Where does any of the testimony raise a fact issue? This is not pointed out by the majority because there is none. Until such a fact issue is raised, there is no duty for a trial court to withdraw a plea of guilty. See Sanchez v. State, Tex.Cr.App., 543 S.W.2d 132 (1976). Apparently the majority does not note the difference under the former Penal Code, Article 1408, which required that property had to be taken before an offense of robbery may be committed by use of a deadly weapon while in the course of committing theft. As seen from the above, in the course of committing theft includes attempts to take property.
¶15The majority should follow the present Penal Code and not construe it according to the provisions of the former Code which has been repealed.
¶16It is difficult, in fact impossible, to understand the majority’s two positions: (1) that the evidence is sufficient to support the conviction for robbery when there was an attempt to take the money, and (2) that the testimony of appellant that he was guilty and that he was attempting to take the money created a fact issue.
¶17The motion for rehearing should be granted and the judgment should be affirmed.