dissenting.
The conclusion that a conviction for voluntary manslaughter may be affirmed even if there is no evidence that appellant was guilty of that crime cannot be defended. It is clearly based on the erroneous assumption that voluntary manslaughter is a “lesser included offense” of the crime of murder. There is no basis for that conclusion, *293since proof of murder does not constitute proof of voluntary manslaughter.
There are cases, such as Daniel v. State, 668 S.W.2d 390 (Tex.Crim.App.1984), relied on in the majority opinion, and Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Crim.App.1978), which, despite the definition of “lesser included offense” in TEX.CODE CRIM.PROC.ANN. art. 37.09(1) (Vernon 1981), hold that the offense of murder includes the offense of voluntary manslaughter. This conclusion is indefensible.
Article 37.09(1), in simple and unambiguous language which cannot be misinterpreted without conscious effort, provides that an offense is a lesser included offense if:
It is established by proof of the same or less than all the facts required to establish the commission of the offense charged.
Murder is committed by intentionally or knowingly causing the death of a person. TEX.PENAL CODE ANN. § 19.02(a) (Vernon 1974). Voluntary manslaughter consists of causing the death of another under circumstances which would constitute murder “except that” the death was caused “under the immediate influence of sudden passion arising from an adequate cause.” TEX.PENAL CODE ANN. § 19.04(a) (Vernon 1974). From these definitions it is clear that the crime of voluntary manslaughter is not “established by proof of the same or less than all the facts required to prove” murder. Proof of voluntary manslaughter requires proof of the elements of murder plus proof that the intentional or knowing killing of another (murder) was done in the heat of passion. Voluntary manslaughter, then, requires proof of an additional element — sudden passion— which is not required in order to establish the crime of murder. No amount of sophistry cannot hide the fact that the statement that since the evidence is sufficient to prove murder it is necessarily sufficient to prove manslaughter is a result-oriented conclusion.
In Bradley v. State, 688 S.W.2d 847, 850 (Tex.Crim.App.1985), the State argued
[R]egardless of whether sudden passion is raised by the evidence, so long as the evidence supports a conviction for murder ..., a charge and conviction on the lesser included offense of voluntary manslaughter is allowable ... because proof of a greater offense will sustain a conviction for a lesser included offense.
Daniel v. State, supra, relied on by the majority opinion, was cited by the State in support of its contention in Bradley.
In Bradley the State’s argument was rejected with the observation that it incorrectly assumed that voluntary manslaughter may be considered a lesser included offense in every case. Judge Clinton’s opinion in Bradley concludes that whether voluntary manslaughter will be treated as a lesser included offense “is contingent on whether we find the evidence presented an issue as to sudden passion.” 688 S.W.2d at 851.
Without pretending to understand, or be persuaded by, the reasoning which leads to the conclusion that evidence of the presence of the element of sudden passion, which is not an element of murder, makes voluntary manslaughter a lesser included offense, it is clear that Bradley stands for the proposition that in the absence of evidence of sudden passion, voluntary manslaughter is not a lesser included offense of murder.
If there is no evidence of sudden passion it cannot seriously be argued that proof of murder is proof of the lesser offense of manslaughter, since under such circumstances voluntary manslaughter is not a lesser included offense under Bradley.
The majority opinion’s theory, which finds support in Paige v. State, 573 S.W.2d 16 (Tex.Crim.App.1978), that because the evidence was sufficient to prove murder, the greater offense, it was necessarily sufficient to prove voluntary manslaughter, is a somewhat unusual theory in another sense. The court is making the finding that the evidence, viewed in the light most favorable to the verdict, discloses that a conviction for murder would have been supported by the evidence. This approach is unusual, since the verdict was one of guilt *294of manslaughter. Whatever the majority’s view of the evidence may be, the simple fact remains that the jury, the ultimate trier of fact, unanimously decided that the evidence did not establish beyond a reasonable doubt that appellant was guilty of murder. In view of this finding by the only body authorized to weigh the testimony, this Court’s conclusion concerning the sufficiency of the evidence becomes, even when viewed in the light most favorable to that conclusion, completely irrelevant. It would appear to be a usurpation of the jury’s function for this court to say that the evidence was sufficient to establish that appellant was guilty of murder when the jury has unanimously decided otherwise. ■
In Bradley the Court in obviously gratuitous dictum, said that even if there is no evidence of sudden passion, failure to object to a charge on voluntary manslaughter on that ground “would signal acquiescence on the part of the accused in the trial court’s judgment that sudden passion was raised,” and that by “invoking” the benefit of the lesser included offense charge by not objecting. “An accused will be es-topped from then complaining on appeal that the evidence failed to establish all the elements of the offense.” 688 S.W.2d at 853.
This dictum is intriguing. The concept of a silent invocation is interesting. The dictum also embodies an interesting application of the doctrine of estoppel.
Under the theory of estoppel “invoked” in Bradley, some interesting results would be reached. A defendant in a murder case, by failing to object to a charge on murder, would be “estopped” to complain on appeal that there was insufficient evidence of murder there is no evidence that the victim of his assault died. This argument would fail because, by failing to object, he “acquiesced” in the trial court’s judgment that the evidence established the death of the person injured. The Bradley estoppel theory fails to distinguish between a complaint that the charge is erroneous and a complaint of insufficiency of the evidence. Failure to object “estops” the accused from complaining of an error in the charge. It is a novel, and unacceptable, notion that failure to except or object to the charge waives the right to insist that defendant’s guilt be established beyond a reasonable doubt.
The Bradley “estoppel” or “acquiescence” theory creates some serious constitutional problems. If, as the first portion of Bradley indicates, voluntary manslaughter is not a lesser included offense of murder in the absence of evidence of sudden passion, then to uphold the conviction in the absence of such evidence would result in a conviction upon a charge not included in the indictment for murder. A conviction upon a charge not made “would be sheer denial of due process.” De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937). Further, in the absence of evidence of sudden passion, to uphold a conviction for voluntary manslaughter would be a violation of due process. A conviction based upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged is constitutionally infirm. Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 628, 4 L.Ed.2d 654 (1960). The Bradley opinion did not concern itself, in dictum or otherwise, with the constitutional implications of its “estoppel” theory.