I respectfully dissent. The facts clearly show that the appellants armed themselves with deadly weapons not to go seek an *Page 541 explanation from the deceased but to either "beat him up" or kidnap and castrate him. The admitted purpose was unlawful; this was not for the purpose of arming oneself against an unexpected deadly attack. They did not abandon the unlawful acts, rather, they waylaid the deceased and killed him. Indeed, the appellants were always in the position of aggressors. Their unlawful acts failed to give rise under the circumstances of this case to a right or privilege. The evidence did not warrant the submission of a jury instruction on "imperfect self-defense." Young v. State, 530 S.W.2d 120 (Tex.Crim.App. 1975) addressed the situation like the present one:
Id. at 122. The law has never been that a defendant is always guaranteed a jury charge on "right to arm" oneself when a charge on provoking the difficulty is given. The evidence must give rise to the charge. This court should hold that the trial court correctly denied the requested charge since the facts did not warrant it. Therefore, I respectfully dissent.[I]t is equally well settled that if the court's instruction limits the accused's right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused's right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence. (Emphasis added).