dissenting.
The question: Is a defendant, who is retried on punishment only, entitled to have the jury instructed on the elements of the crime for which he was found guilty? Both the appellant and the State concede that this is a case of first impression.
I dissent from the majority’s holding on points of error four, eight, and nine. In point four, the appellant contends that the trial court erred in refusing to charge the jury about the elements of voluntary manslaughter; in points eight and nine, the appellant contends the prosecutor argued that the appellant committed murder, not voluntary manslaughter. I agree with the appellant that the combined effect of these errors prevented the jury from understanding the appellant’s culpability for voluntary manslaughter.
On the retrial of the punishment issue only, the trial court received evidence about the crime and evidence relative to punishment, and submitted the issue of punishment to the jury. The charge recited that the appellant had been convicted of voluntary manslaughter, and charged the jury as to the range of punishment it could assess. The charge did not inform the jury of the level of culpability involved in the finding of voluntary manslaughter by the first jury. The appellant requested the court in writing to submit a special charge defining voluntary manslaughter. The court overruled the request.
I would hold that, at a minimum, when a jury is asked to determine punishment only, it must be informed of the elements of the crime for which the first jury found the defendant guilty. In a trial in which the jury both assays the guilt and imposes the punishment, it is not necessary for the jury to be instructed at the punishment stage on the elements that resulted in the finding of guilt. When such a jury sits to determine punishment, it is fresh from the *952trial on guilt where the court recently instructed it on the elements of the crime. Here, the jury that imposed punishment was never instructed by the court on the elements of the crime and was not told what level of culpability the first jury was required to find before it could find the appellant was guilty of voluntary manslaughter.
The majority not only finds that it was not error to refuse to tell the jury what elements were involved in the appellant’s finding of guilt, it even goes so far as to find that if error, it was harmless. The majority finds comfort of sorts in the fact that the prosecutor and the defense counsel told the members of the venire about the elements of voluntary manslaughter during voir dire examination. The prosecutor told the jury panel that “voluntary [manslaughter] is death caused under the immediate influence of sudden passion arising from an adequate cause.” The majority concludes that, because the venire panel was told orally by the prosecutor before the trial started about voluntary manslaughter, the jury knew the elements of voluntary manslaughter. I would hold that the discussion by the prosecutor and even the defense during voir dire, before the actual trial started, was no substitute for an instruction from the court. The voir dire began on June 25, 1990, and final arguments were made on July 2, 1990, eight days later. Casual discussions about the law by the lawyers during voir dire is no substitute for instructions from the court.
The majority also finds comfort in the fact that the first jury and the second jury assessed the appellant’s punishment at 12 years. Maj. op. at 942, n. 2. This Court found the first sentence was tainted by error and reversed for re-trial on punishment only. Rische v. State, 757 S.W.2d 518, 520-21 (Tex.App.—Houston [1st Dist.] 1988, pet. ref’d) (“[W]e cannot determine beyond a reasonable doubt that the error made no contribution to the punishment assessed.”) The majority should not harken back to that discredited sentence to justify the sentence of this jury when analyzing a different error.
The error in refusing to charge the jury on the elements of voluntary manslaughter was compounded in this case by the prosecutor’s closing argument. In point of error eight, the appellant asserts the prosecutor’s closing argument was improper because she argued that the appellant killed the deceased so he could have the deceased's wife. The Appellant contends that the prosecutor argued that the appellant was actually guilty of murder, and that the jury should punish the appellant for murder instead of voluntary manslaughter.
During her closing argument to the jury, the prosecutor made the following statements:
I will tell you right here and right now that this is not a probation case. It’s not a probation case because on February 18, 1985, Ronald Rische sat in his apartment, had a couple drinks and waited for Gordon Duncan. Got his gun out and to make it sound good, I was thinking about killing myself, but I couldn’t do it. I couldn’t kill myself, I feel so guilty and so horrible and so disgusted with myself that I want to end it all, but I can’t do it. But I can make it better. If I get rid of Gordon, then I can have what I want, I can have Sharon, the true love of my life. And all I have to do is get rid of Gordon and then I’m happy.
The defense counsel objected on the ground that the prosecutor was arguing that the appellant committed murder because the killing was voluntary and planned. The trial court overruled the objection, but told the jury that the appellant was charged with voluntary manslaughter.
The prosecutor also made the following statement during closing argument:
Ladies and gentlemen, when you go back into the jury room, don’t forget what he did on February 18, 1985. You call it voluntary manslaughter if that’s what you want to call it, but don’t forget that he took Gordon Duncan’s life.
The defense counsel again objected on the ground that the prosecutor was inviting the jury to disregard the appellant’s guilt for voluntary manslaughter by calling *953what the appellant was guilty of whatever the jury wanted to call it. The trial court sustained defense counsel’s objection and instructed the jury that the appellant had been convicted of voluntary manslaughter. The trial court granted defense counsel’s request to instruct the jury to disregard any comments made by the prosecutor to consider any other offense. The trial court also granted defense counsel’s request that the jury disregard the statements made by the prosecutor as set out above. The trial court denied defense counsel’s request for a mistrial.
I would hold the statements made by the prosecutor were not proper as a summation of the evidence. When coupled with the refusal of the trial court to define the elements of voluntary manslaughter, the prosecutor’s arguments invited the jury to punish the appellant as if he had committed murder.
I would sustain points of error four, eight, and nine and reverse for a new trial on punishment only.