(concurring specially).
I concur in quashing, the writ based on the death of the petitioner, David Eugene Davis. I write specially to express my view that there is a probability of merit as to the position taken by Davis with respect to both issues upon which this Court granted certiorari review: (1) whether the Court of Criminal Appeals incorrectly affirmed the trial court’s decision on a ground not raised in the trial court, namely, that the claim was not sufficiently pleaded, and (2) whether Davis’s claim alleging that the trial court gave supplemen*462tal instructions to the jury outside the presence of the defendant and .his counsel was precluded.