dissenting:
I respectfully dissent. The majority recites but then ignores the recent teachings of the United States Supreme Court. It repudiates the carefully considered findings of the Texas Court of Criminal Appeals and impermissibly substitutes its own judgment for that of the state court. This unacceptable approach leads the majority to the wrong result.
Clearly, a jury could find beyond a reasonable doubt that the indictment fairly described Plunkett’s brutal crime. It is undisputed that the indictment was constitutionally adequate. The sole issue is whether the court’s charge to the jury was fundamental error. The Texas Court of Criminal Appeals found that it was not. This determination deserves far more than the insubstantial deference shown it by the panel majority.
In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) the Supreme Court ruled that a state court’s factual determinations must be accorded a “presumption of correctness” under 42 U.S.C. § 2254(d). As the Court recently stated in Marshall v. Lonberger, - U.S. -, -, 103 S.Ct. 843, 850, 74 L.Ed.2d 646, 657 (1983), Sumner calls for a “ ‘high measure of deference’ ” and “requires that a federal habeas court more than simply disagree with the state court before rejecting its factual determinations. Instead, it must conclude that the state court’s findings lacked even ‘fair[ ] support’ in the record.”
The Supreme Court’s decision in Maggio v. Fulford, - U.S. -, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983), is a fresh reminder that the Courts of Appeals are not free to second-guess determinations made by state courts. In that case, this Court had reversed the district court and granted habeas relief to a petitioner who claimed he was mentally incompetent to have stood trial. Fulford v. Maggio, 692 F.2d 354 (5th Cir.1982). The issue had earlier been raised before the trial court, which had found the defendant competent. The Louisiana Supreme Court upheld that finding on appeal. Summarily reversing this Court’s decision, the Supreme Court had “not the slightest hesitation in saying that the trial court’s conclusion as to Fulford’s competency was ‘fairly supported by the record.’ ” - U.S. at -, 103 S.Ct. at 2264, 76 L.Ed.2d at 799.
In its decision on rehearing in this case, the Court of Criminal Appeals pointed out that the portion of the instructions which referred to the non-indicted crime were phrased in such a way as to direct acquittal, and consideration of the lesser offense of manslaughter, if the jury did not find certain facts beyond a reasonable doubt. Because the jury was instructed to return a verdict of guilty only if they found that Plunkett did “intentionally or knowingly cause the death” of the victim, the instruction did not authorize the jury to return a guilty verdict on the nonindicted offense.
[T]he charge defined murder abstractly, and then applied this definition to the facts in Paragraph 3A. Although a theory not alleged in the indictment is included in Paragraph 3A, it is important to note that this paragraph is a converse charge, directing acquittal and consideration of the lesser included offense, not directing a finding of guilt. Thus, Paragraph 3A did not authorize a conviction under See. 19.02(a)(2), and provided no affirmative guidance for the jury’s finding of guilt.
Plunkett v. State, 580 S.W.2d 815, 822 (Tex. Cr.App.1979).
The conclusion reached by the Court of Criminal Appeals is fairly supported by the actual language of the jury charge and by *1012the record as a whole. Yet the majority chooses to give the record its own interpretation. By failing to accord a properly high measure of deference to the findings of the Court of Criminal Appeals, the majority overlooks the clear lesson of Sumner, Lon-berger, and Fulford.
Even more so, I disagree with the majority’s contention that the prosecutor’s closing argument elevated the otherwise acceptable jury instruction to the realm of fundamental error. Because of the absence of a contemporaneous objection, the propriety of the prosecutor’s argument is not before this Court. The sole question — as the majority acknowledges — is whether the instruction itself, in the context of the circumstances of the trial, authorized a conviction on the unindicted offense. The majority acknowledges that at least arguably, the instruction alone did not authorize any such verdict. I cannot accept the majority’s thesis that the court’s constitutionally acceptable instruction was somehow turned into fundamental error by the prosecutor’s remarks.
I find nothing in the Court of Criminal Appeals’ en banc opinion to suggest that it would have reached a different result if only it had placed the jury charge in the context of the prosecutor’s argument. That Court considered the language of the charge and concluded that it did not authorize- conviction for a non-indicted offense. I would uphold that finding.
But more fundamentally, the constitutional acceptability of an errorless jury charge cannot by the words of an advocate be transmuted into a denial of due process by the Texas courts.