OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for aggravated robbery, where the punishment [2]*2was assessed by the jury at life imprisonment.
We are met at the outset with the contention raised in appellant’s pro se brief that the court’s charge was fundamentally defective.
The indictment, omitting the formal parts, alleged:
“While in the course of committing theft of property owned by Fred H. Cox, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.” (Emphasis supplied.)
The charge to the jury in applying the law to the facts stated:
“Now if you find from the evidence beyond a reasonable doubt that on or about the 13th day of June, 1977, in Harris County, Texas, the defendant, Robert Wayne Woods, acting alone or with another person as a party, as defined herein, with intent to deprive Fred H. Cox, the owner, of his property belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Fred H. Cox said property belonging to Fred H. Cox and that the defendant, in so doing, and with intent to obtain or maintain control of said property then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find defendant guilty of aggravated robbery, as charged in the indictment.”
An essential element of the offense of aggravated robbery which must be pled and proven is that the offense was committed “in the course of committing theft.” See Y.T.C.A., Penal Code, § 29.02 and 29.03; Williams v. State, 622 S.W.2d 95 (Tex.Cr. App.1981), and cases there cited.
In applying the law to the facts, it is observed that the court did not track the indictment and use the term “in the course of committing theft,” but attempted to set out the component parts of the element, but failed to require the jury to find that appellant took or attempted to take the property without the effective consent of the owner. This is the identical situation as in Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980), where this court wrote:
“In the instant case the terms ‘theft’ and ‘while in the course of committing theft’ were properly defined in the definitional portion of the charge. However, the court’s charge did not require the jury to find that the robbery occurred while in the course of committing theft as defined in the charge in order to convict; rather, the court attempted to set out the component parts of that element. Nevertheless, as noted above, the court omitted an essential part of the element when it did not require the jury to find that appellant took or attempted to take the property without the owner’s effective consent.
“A jury charge which authorizes á conviction without requiring the jury to find all of the elements of the offense charged is fundamentally defective. Thompson v. State, Tex.Cr.App., 574 S.W.2d 103; West v. State, Tex.Cr.App., 572 S.W.2d 712. We likewise hold that when in applying the law to the facts, a trial court charges a jury on the component parts of an element of the offense rather than the element itself, the charge must require the jury to find all of the parts of that element in order to convict. The jury charge in the instant case did not so require and is fundamentally defective.”
In Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.1981), this court also wrote:
“The court’s charge in the instant case suffers from the same defect as found in Evans. Namely, the court did not require the jury to find that the offense occurred ‘while in the course of committing theft.’ Moreover, in attempting to set out the elements of the offense of theft, the court omitted an essential part of the element when it did not require the jury to find that the appellant took or [3]*3attempted to take the property without the owner’s effective consent. We conclude that the charge in the instant case is fundamentally defective in that it did not require the jury to find all of the elements of the offense in order to convict.” See also Young v. State, 621 S.W.2d 779 (Tex.Cr.App.1981); Rushing v. State, 621 S.W.2d 606 (Tex.Cr.App. 1981).
For the fundamental error observed, the judgment is reversed.
In light of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we shall consider appellant’s challenge to the sufficiency of the evidence to support the conviction for aggravated robbery.
The appellant appears to argue that the evidence is insufficient to show that he used and exhibited a pistol as alleged in the indictment.
On the afternoon of June 13, 1977, Fred H. Cox, Route Manager for the Automatic Sales Company, was in the process of servicing cigarette vending machines in different stores. At a Beef and Bun store he observed two men driving a black Mark V automobile. One of the men got out of the car and went into a liquor store and came out without making a purchase. When he arrived about 5 p.m. at the G & P Lucky 7 store on South Post Oak, he observed the same two men in the black Mark V automobile. He identified the appellant as the driver and one Drewhart Rice as the passenger. Cox went into the G & P Lucky 7 store to service the vending machines. He then returned to his truck and placed the money taken from the machines into the truck’s safe. Drewhart Rice approached him and asked for change for a quarter. Cox did not have the change. Rice walked past Cox, turned and shoved a gun into Cox’s side and stated, “This is a holdup. Get in the truck.” Cox fell to the ground. As he was falling, Rice stated, “This is a gun. Get in the truck or I’ll kill you.” Rice took Cox’s wallet, approximately $532.00, credit cards and a driver’s license and ran.
Cox continued to lay on the ground until Houston police officer J.L. Tucker in his police uniform came to him. Tucker was off duty and working as a security officer for the G & P Lucky 7 store. After learning about the black Mark V automobile, Tucker got in his personal car and went in search of the black car. He then observed it going in the opposite direction. The black car passed within three feet from Tucker and he was able to identify the appellant as the driver. Officer Tucker turned and started following the black vehicle which increased its speed. While following, the driver, identified as the appellant, fired three shots at Tucker.
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OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for aggravated robbery, where the punishment [2]*2was assessed by the jury at life imprisonment.
We are met at the outset with the contention raised in appellant’s pro se brief that the court’s charge was fundamentally defective.
The indictment, omitting the formal parts, alleged:
“While in the course of committing theft of property owned by Fred H. Cox, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.” (Emphasis supplied.)
The charge to the jury in applying the law to the facts stated:
“Now if you find from the evidence beyond a reasonable doubt that on or about the 13th day of June, 1977, in Harris County, Texas, the defendant, Robert Wayne Woods, acting alone or with another person as a party, as defined herein, with intent to deprive Fred H. Cox, the owner, of his property belonging to said owner, did unlawfully appropriate or unlawfully attempt to appropriate from Fred H. Cox said property belonging to Fred H. Cox and that the defendant, in so doing, and with intent to obtain or maintain control of said property then and there intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and that the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find defendant guilty of aggravated robbery, as charged in the indictment.”
An essential element of the offense of aggravated robbery which must be pled and proven is that the offense was committed “in the course of committing theft.” See Y.T.C.A., Penal Code, § 29.02 and 29.03; Williams v. State, 622 S.W.2d 95 (Tex.Cr. App.1981), and cases there cited.
In applying the law to the facts, it is observed that the court did not track the indictment and use the term “in the course of committing theft,” but attempted to set out the component parts of the element, but failed to require the jury to find that appellant took or attempted to take the property without the effective consent of the owner. This is the identical situation as in Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980), where this court wrote:
“In the instant case the terms ‘theft’ and ‘while in the course of committing theft’ were properly defined in the definitional portion of the charge. However, the court’s charge did not require the jury to find that the robbery occurred while in the course of committing theft as defined in the charge in order to convict; rather, the court attempted to set out the component parts of that element. Nevertheless, as noted above, the court omitted an essential part of the element when it did not require the jury to find that appellant took or attempted to take the property without the owner’s effective consent.
“A jury charge which authorizes á conviction without requiring the jury to find all of the elements of the offense charged is fundamentally defective. Thompson v. State, Tex.Cr.App., 574 S.W.2d 103; West v. State, Tex.Cr.App., 572 S.W.2d 712. We likewise hold that when in applying the law to the facts, a trial court charges a jury on the component parts of an element of the offense rather than the element itself, the charge must require the jury to find all of the parts of that element in order to convict. The jury charge in the instant case did not so require and is fundamentally defective.”
In Williams v. State, 622 S.W.2d 95 (Tex.Cr.App.1981), this court also wrote:
“The court’s charge in the instant case suffers from the same defect as found in Evans. Namely, the court did not require the jury to find that the offense occurred ‘while in the course of committing theft.’ Moreover, in attempting to set out the elements of the offense of theft, the court omitted an essential part of the element when it did not require the jury to find that the appellant took or [3]*3attempted to take the property without the owner’s effective consent. We conclude that the charge in the instant case is fundamentally defective in that it did not require the jury to find all of the elements of the offense in order to convict.” See also Young v. State, 621 S.W.2d 779 (Tex.Cr.App.1981); Rushing v. State, 621 S.W.2d 606 (Tex.Cr.App. 1981).
For the fundamental error observed, the judgment is reversed.
In light of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we shall consider appellant’s challenge to the sufficiency of the evidence to support the conviction for aggravated robbery.
The appellant appears to argue that the evidence is insufficient to show that he used and exhibited a pistol as alleged in the indictment.
On the afternoon of June 13, 1977, Fred H. Cox, Route Manager for the Automatic Sales Company, was in the process of servicing cigarette vending machines in different stores. At a Beef and Bun store he observed two men driving a black Mark V automobile. One of the men got out of the car and went into a liquor store and came out without making a purchase. When he arrived about 5 p.m. at the G & P Lucky 7 store on South Post Oak, he observed the same two men in the black Mark V automobile. He identified the appellant as the driver and one Drewhart Rice as the passenger. Cox went into the G & P Lucky 7 store to service the vending machines. He then returned to his truck and placed the money taken from the machines into the truck’s safe. Drewhart Rice approached him and asked for change for a quarter. Cox did not have the change. Rice walked past Cox, turned and shoved a gun into Cox’s side and stated, “This is a holdup. Get in the truck.” Cox fell to the ground. As he was falling, Rice stated, “This is a gun. Get in the truck or I’ll kill you.” Rice took Cox’s wallet, approximately $532.00, credit cards and a driver’s license and ran.
Cox continued to lay on the ground until Houston police officer J.L. Tucker in his police uniform came to him. Tucker was off duty and working as a security officer for the G & P Lucky 7 store. After learning about the black Mark V automobile, Tucker got in his personal car and went in search of the black car. He then observed it going in the opposite direction. The black car passed within three feet from Tucker and he was able to identify the appellant as the driver. Officer Tucker turned and started following the black vehicle which increased its speed. While following, the driver, identified as the appellant, fired three shots at Tucker. Eventually the black vehicle stopped in front of a ditch and both occupants got out and ran across a bridge. Tucker managed to shoot Rice, the passenger, in the hip, causing him to fall. Nearby Tucker found a .38 caliber pistol. The other individual got away. A .22 caliber pistol was found in the black car as well as a driver’s license and Brown and Root Company identification card. Both bore appellant’s photograph. A water bill in the name of Robert Woods was found in the black car identified by Cox at the scene as the Mark V he had seen earlier. Cox also identified Rice as the man who robbed him.
The 1977 black Mark V was shown to be registered to Robert Woods of Houston. Appellant Woods’ common-law wife testified she had the car at her mother’s residence on June 13,1977 and last saw it about 3 or 3:15 p.m. About 5 or 5:30 p.m. she noticed it was missing. Appellant offered alibi testimony. His sister and her husband placed the appellant with them in Corpus Christi on June 13, 1977.
The court charged the jury, inter alia, on the law of parties, criminal responsibility and the law of circumstantial evidence, as well as on the alibi defense.
The evidence must be viewed in the light most favorable to the jury’s verdict. The jurors are the judges of the facts and credibility of the witnesses and weight to be given their testimony. They were free to accept or reject the testimony of any witness. Thomas v. State, 605 S.W.2d 290 [4]*4(Tex.Cr.App.1980); Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978).
It appears to be appellant’s contention that a gun was not used or exhibited because on cross-examination Cox testified he did not see the gun. He earlier testified that Rice shoved a gun into his side, stated it was a holdup and “This is a gun” and threatened to kill Cox if he didn’t get in the truck. Later the appellant shot at officer Tucker three times and when apprehended Rice was lying near where a .38 caliber pistol was found. A .22 caliber pistol was found in the black car.
This was a circumstantial evidence case, and under the facts, it was sufficient to show that the robbery was committed by using and exhibiting a pistol. See Moore v. State, 531 S.W.2d 140, 142 (Tex.Cr.App.1976). Evidence that a firearm was used and exhibited by a defendant’s companion is sufficient, where, as here, the law of parties is charged. Stewart v. State, 532 S.W.2d 349 (Tex.Cr.App.1976).
Appellant’s contention is overruled.
For the reason stated earlier, the judgment is reversed and the cause remanded.