dissenting.
In addressing ground of error four, failure to charge on lesser included offense of aggravated assault in this aggravated robbery case, the Court, as if by rote, says that appellant was entitled to it “if there were testimony that if guilty at all, he was only guilty of the lesser included offense.” The two decisions we are invited to “see” in support of the statement are Eidred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979), a panel opinion with one member dissenting, and Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979), an opinion from a two member panel in which the second concurred in the result. In both, the primary offense was, as here, aggravated robbery, but there the similarity fades, only to return at the end of each.
In Eidred v. State, supra, the complaint was error in refusing to charge the jury on the lesser included offense of theft; for guidance in resolving the problem the panel first looked to what it believed was the “test” set forth by the Court in Campbell v. State, 571 S.W.2d 161 (Tex.Cr.App.1978)also an aggravated robbery case in which a charge of the lesser included offenses of theft had been refused. In Williams v. State, supra, appellant contended that she was entitled to charges on the lesser included offenses of attempted robbery, aggravated assault, assault and theft; without mentioning Campbell,1 however, the opinion recites the “guilty only” rule so routinely canted lately:
“. .. Our law provides that ‘a charge on the lesser [included offense] is not required unless there is testimony raising such issue that appellant, if guilty, is guilty only of the lesser offense.’ Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974). * * * Thus, the State’s evidence indicated that appellant was guilty as charged; the defense evidence indicated she was not guilty of any offense. Appellant was not entitled to a charge on any lesser included offense.”
Returning to the panel opinion in Eidred v. State, supra, it is noted that the dissent charges the majority with misconstruing the test of Campbell, supra,2 at which a closer look will be taken ante. The Eidred majority, “searching for any evidence which *888would show that if appellant is guilty at all, he is guilty only of the lesser included offense” and pointing to certain testimony of appellant that the majority saw as “den[ying] the commission of any offense,” applied the excerpt from Williams, supra quoted in part just above, and held appellant not entitled to a charge on theft.3
While there are many other recent decisions along this same line, Eldred and Williams are illustrative of a commonality in most: each traces its heritage back to either McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974) or Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973),4 sometimes both.
In Day v. State, 532 S.W.2d 302, 307 (Tex.Cr.App.1975), writing for the Court Presiding Judge Onion, the author of McBrayer, characterized as “not necessary to disposition of the ground of error” the following from McBrayer:
“Still further, merely because a lesser offense is included within the proof of a greater offense, a charge of the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. See Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).”
The McBrayer and Torres limbs go back to the common branch of Daywood v. State, supra.
In Daywood v. State, 248 S.W.2d at 481, it is written:
“... [I]t will be noted that, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged.”5
This statement appears to be the earliest pronouncement of “guilty only” rule that diligent research and exploration will discover. It is made without citing any authority to support it, and in the full context of the opinion is pure dicta-just as “it will be noted” signals that it is. Thus, if Day-wood is the progenitor of it, the rule has an inauspicious beginning. But then, like Topsy, it just grew.
As a rule of law, one must marvel at its ambiguity. That it is susceptible to nearly whatever meaning one applying it may give to it is seen from the variety of constructions advanced at one time or another in the opinions rendered by the Court. Thus, in Hale v. State, supra, an assault with intent to rape, the author of Daywood opined that a charge of aggravated assault was not called for because the Court found “no evidence . . . which would indicate that the appellant, if guilty at all, is guilty only of aggravated assault;”6 the offense was the same in Torres, supra, and the Court *889found that the charge given was more favorable to the accused than he requested-a charge on aggravated assault-and held the latter issue was not raised by the evidence “since appellant denied any assault whatever ...7 it was with respect to the same offense, same requested charge and same result in McBrayer, supra, that Presiding Judge Onion first succinctly concluded that under the circumstances of the case “the issue of aggravated assault was not raised by the evidence,” referring to the rule in 4 Branch’s 219, § 1889 and Torres, and then made his “[s]till further” statement- drawn from Hale and Daywood. Here is a clear implication that the ancient but still viable “raised by the evidence” rule is not the same as the more recently developed “evidence of guilt only of lesser offense” notion of Daywood. From this point on more differences become evident from competing views.
First in significance is Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975), a case of burglary with intent to commit theft where, though the accused admitted the entry he denied an intent to steal, a charge of the lesser included offense of criminal trespass was refused. For the Court Presiding Judge Onion reviewed the facts and the law of burglary and criminal trespass and concluded that “the facts in the evidence at trial were sufficient to raise the issue of criminal trespass, and the failure of the trial court to submit to the jury a requested charge on such constitutes reversible error.” Concurring, Judge Roberts agreed that as a legal proposition criminal trespass is a lesser included offense of burglary and in the instant case the “distinguishing” element is the intent to commit theft; his conclusion: “Since this element was not conclusively established, the issue of criminal trespass was raised.” Judge Douglas, joined by former Judge Morrison, the author of Daywood, dissented, using as his legal basis the McBrayer statement and the following mixed legal and factual analysis:
“Appellant by his own testimony shows him to be guilty of burglary under Section 30.02(a)(3), supra.8 He entered the building without the consent of the owner and while there committed theft by taking the letter opener, putting it in his pocket and trying to sell or give it away. His testimony did not show that he is guilty only of a lesser included offense.9 It is not necessary to decide if criminal trespass is a lesser included offense of the offense of burglary under the facts of this case.”
To the statement from McBrayer and this analysis and application of it, Presiding Judge Onion rejoined:
“The dissent relies heavily upon McBrayer v. State . .., an opinion authored for the court by this writer. * *
* * * The dissent reads it as holding that it is not error to fail to charge on a lesser included offense unless the evidence shows that the only offense of which the accused could be guilty is the lesser included offense. This is not the law, should not be the law, and has never *890been the law. Surely it cannot be contended that if there is evidence raising the issue of a lesser included offense an accused would not be entitled to a charge on the same merely because there is also other evidence which supports proof of the greater offense charged or some other offense.”
Presiding Judge Onion then revisits Day-wood, notes that in each case citing it “there was no evidence raising the issue of a lesser included offense” (his emphasis), and perceives:
“It is clear then that the dissent cites McBrayer for the wrong proposition and goes further and infers that if the proof reflects some offense other than charged in the indictment, then no jury instruction on the lesser included offense of the offense charged needs to be given regardless of the evidence raising the same. This is strange logic indeed.”10
After a slight change in membership11 the Court confronted the Day issue again, but with somewhat different facts, in McCardell v. State, 557 S.W.2d 289 (Tex.Cr.App.1977). Suffice to say that beyond any doubt a paint and body shop had been burglarized and appellant and his brother were found by police inside the shop; appellant did not testify, but through witnesses, including his brother who admitted the offense, he presented a defense that innocently he went to the shop in response to a phone call from his brother, Robert, and was let inside by him only to discover that Robert had unlawfully entered and was in the progress of burglarizing it, and hid when officers arrived. Writing for the majority, Judge Douglas quickly dismissed reliance on Day, for it “is not in point,” explaining:
“All the defensive testimony shows that appellant committed no crime at all because he was told that Robert was working for the shop owner in the building and Robert invited appellant to enter. There was nothing according to Robert’s testimony that put appellant on notice that he did not have the effective consent of the owner to enter. In short, the proof shows that appellant committed the offense of burglary. He was guilty or not guilty of that offense.”
Referring to McBrayer and Torres, Judge Douglas then concluded:
“There is no testimony in the present case that would make appellant guilty of only the crime of trespass.”
Judge Roberts, joined by Judge Phillips, dissented. First the dissent adopts in toto an opinion on the point originally prepared for the Court by the late Commissioner Howard P. Green, which built on the “well established” principle of law that “if the evidence adduced at the trial raises an issue of fact, and a charge on that issue is properly requested, such a charge must be given,” citing, e. g., Day v. State, supra. Thus, like Judge Onion in Day, Commissioner Green and, through adoption, Judges Roberts and Phillips, opted for the “raised by the evidence” rule. But Judge Roberts then went on to express his understanding of, to dissect and examine disposition of the case by the majority based on, and to interpret the language of McBrayer, viz:
“I had always understood this language to mean that if any of the testimony-not just defensive testimony-shows that the *891appellant is guilty of the lesser included offense, then the trial judge must give a charge on that offense, provided that the appellant does not present testimony which unequivocally negates the existence of the lesser included offense. See Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973).
“Interpreted in this manner, McBrayer fails to support the majority’s disposition of the case. The majority fails to recognize that a defendant can raise the existence of a lesser included offense as a defensive issue. In such a ease, the defensive issue is that the defendant is not guilty of the offense charged, but guilty of a lesser included offense. The fact that the defensive theory attempts to demonstrate guilt of a less serious offense, as opposed to a defense which to negate guilt of any offense, should not affect whether a defensive charge is given. The only difference is that where a lesser included offense is raised as the defensive theory, the defensive charge will be in the form of a charge on the lesser included offense.
“This view is amply supported by cases involving defensive charges in general.
“Thus, the rule is that in the absence of defensive testimony which absolutely negates the lesser included offense, the trial court must charge on the lesser included offense if ‘any particular portion of the evidence’ shows that appellant was only guilty of that offense. Day v. State, supra. This is what the language of McBrayer means-or should mean: that the charge must be given if any part of the evidence shows that the accused was only guilty of the lesser offense, even though there is also strong evidence of his guilt of the greater offense.” [Emphasis throughout by Judge Roberts.]12
Taking a somewhat different tack in the next part of his dissenting opinion, Judge Roberts “would overrule or clarify McBrayer v. State . . .id. at 295 and, as indicated, Judge Phillips joined.
A slight digression from the trail is necessary before again approaching Eldred, supra. Following the lead of opinion on rehearing in Day, supra, a unanimous Court held in Hazel v. State, 534 S.W.2d 698, 699-701 (Tex.Cr.App.1976) that, under the facts of the case, unlawfully carrying a weapon, V.T.C.A. Penal Code, § 46.02, is a lesser included offense of unlawful possession of a firearm by a felon, id. at § 46.05. Presiding Judge Onion first summarized the rehearing holding of Day, viz:
. Whether one offense bears such a relationship to the offense charged must be a case by case determination, the decision being based on whether the lesser offense could be proved by the same facts as necessary to establish the offense charged. Day v. State, supra.”
Reviewing the statutory elements of each offense under investigation and noting pri- or judicial construction of the phrase “on or about the person,” the Court concluded:
“. . . Thus the proof that appellant’s pistol was on the floorboard of the automobile establishes both that he carried it ‘on or about his person’ and that he ‘possessed’ it. . . . Since the two are provable by the same facts, the provisions of Article 37.09, Vernon’s Ann.C.C.P., are satisfied.
“The same reasoning applies to the last remaining distinction between the two *892offenses.13 ... Again, it is evident that the lesser offense and the offense charged are capable of proof by the same fact that appellant had in his automobile a .38 caliber revolver.”
The analysis, reasoning and holding of Hazel v. State,14 supra, became the foundation of the conclusion in Campbell v. State, supra, that there theft was a lesser included offense of aggravated robbery, so the trial court erred in refusing to submit a charge on the lesser included offense of theft, id., at 162. The Court reached its conclusion without any mention of the “guilty only” cant of Daywood/McBrayer.
The question posed by the Campbell court:
“... The issue upon which this appeal turns is whether theft is a lesser included offense of aggravated robbery in this case.” [Emphasis in original]
Faulting the State for confusing “the statutory elements of the definition of an offense with the evidentiary facts required to prove the offense charged,” the Court then points out:
“... The State’s version of the events and appellant’s version differed on only one material point: whether the theft was accompanied by acts constituting aggravated robbery. Appellant testified only a theft was committed; the State also relies on proof of the theft, and such additional facts as raise the crime to aggravated robbery. The theft was without question proven within the facts relied on by the State to make its case of aggravated robbery. Theft was a lesser included offense of aggravated robbery on the facts here.”
Further explicating the conclusion just reached, the Court stated:
“The issue is not whether the primary offense is capable of proof on some theory that would not show theft. The issue is whether the State’s case as presented to prove the offense charged included proof of theft. The record shows theft was included in the proof of the State’s case, and therefore appellant was entitled, on the basis of his testimony, to submission of the lesser included offense of theft. The trial court’s adverse ruling on his objection to the charge was reversible error.”15
Eldred v. State, supra, also mentions Thomas v. State, 578 S.W.2d 691 (Tex.Cr.App.1979),16 a unanimous panel opinion impliedly approved by denial of rehearing En Banc. It presented out of a single transaction one charge of murder and two of attempted murder after appellant interrupted a prospective menage a quatre by producing a pistol and shooting the prospects. Convicted as charged, she complained because the trial court refused to charge on lesser included offenses of involuntary manslaughter, negligent homicide and simple *893assault, pointing to her own testimony that she did not intend to kill anyone but simply began shooting at random in an attempt to escape her proposers. Citing both McBrayer v. State and Torres v. State, supra, for the same proposition, the panel opinion states, “A charge on a lesser included offense is not required unless the evidence raises that issue,” adds that “if the evidence raises only the issue that the accused is guilty of the offense charged or no offense at all, the issue of a lesser included offense is not raised,” points out and concludes:
“. .. In this case appellant was the only witness for the defense. She testified that her only reason for shooting the pistol was her attempt to escape from a kidnapping and rape. If that testimony was true, she would have been guilty of no offense at all. As she was either guilty of the offense charged or no offense, a charge on the lesser included offenses was not necessary.”
Finally getting back to the panel opinion in Eldred, it will be recalled that the majority read Campbell to provide a “test,” viz:
“The test ... to be used to determine whether a charge on theft is required in a prosecution for aggravated robbery is:
‘. . . not whether the primary offense is capable of proof on some theory that would not show theft, but whether the State’s case as presented to prove the offense charged also included theft’.”
From this the panel saw “two separate steps” to resolve the issue:
“. . . First, the lesser included offense must be included within the proof necessary to establish the offense charged. If the offense charged is aggravated assault, then theft must be established by proof of the same or less than all the facts required to establish the commission of aggravated robbery before a charge on theft is required.
* * * * * *
The second step requires an examination of all evidence produced in the course of a prosecution for aggravated robbery. The focus here is not on the evidence which proved the statutory elements, but rather, we must search for evidence which shows that if appellant is guilty, he is guilty of the lesser offense only. Therefore, our task is an examination of the entire record.”17
In taking the second step the panel majority noted that in Campbell, “The defendant admitted the theft but denied the existence of any of the aggravating factors,” so that “there was evidence, albeit from the defendant, which, if believed, would prove the defendant was guilty only of theft, not aggravated robbery,” id., at 723. But, as to Eldred, “The record does not show that appellant, if guilty of any offense, is guilty only of theft,” because although Eldred testified and denied aggravating circumstances, but admitting the “taking” believing he had implied effective consent, the majority interpreted his other testimony as a denial of theft or any other offense. Thus, it summarized:
“... Such testimony denied the commission of any offense. Therefore, if the jury believed the State’s evidence, appellant committed an aggravated robbery. If the appellant’s testimony persuaded the jury, the verdict is not guilty. The appellant, if guilty at all, is guilty of aggravated robbery.”
Quoting with approval from Williams, supra, the panel held that appellant was not entitled to a charge on theft, id., at 724.
Judge Phillips, in dissent, set forth in more detail the testimony of the complaint *894and Eldred, as well as the State’s rebuttal witnesses. The majority is charged with reinterpreting Campbell by creating a two-step approach to the issue and, in the second step, by “requiring] a judicial confession to the lesser offense before an instruction on it is required,” id., at 726. According to his analysis, “the ‘taking’ was the only undisputed element,” so that the jury should have been given “the entire range of potential offenses,” including the lesser offense of theft.
From Daywood through Eldred, admittedly a lengthy and tortuous expedition, several conclusions follow: First, the “guilty only” maxim is elusive to the grasp and errant in application. Second, it is often ritualistically invoked in inappropriate situations. Third, even where the maxim is properly considered, it suffers from unevenness in treatment according to the source of testimony suggesting a lesser included offense. A rule of law so defective is desperately in need of repair. Until fixed' it should not be used. Meanwhile, there are other concepts that can be put to work.
The instant cause is a showcase example. The Court appears to conclude that the evidence established that “if guilty at all, appellant was guilty of the charged offense of aggravated robbery” because “we can find no evidence which would negate the existence of appellant’s theft of the Currie automobile.” Yet, that the State proved commission of an aggravated assault is not and cannot be doubted. But proof of theft of the automobile is not all that certain: Is there evidence that appellant appropriated the car with the intent to withhold it from Currie permanently or for the requisite extended period of time under V.T.C.A. Penal Code, § 31.01(3)? Moreover, to me it is not inconceivable that had it been permitted to do so a jury might well have expressed the view that the assault and taking were separate parts of the overall transaction that did not coalesce into aggravated robbery. Other theories suggested by the evidence may come to mind, but the point is, as made in Keeton v. State, 149 Tex.Cr.App. 27, 190 S.W.2d 820, 824 (1945, Opinion on Rehearing):
“It is true that an indictment for rape includes also a charge for an assault with intent to rape, as well as an aggravated assault ... Yet, such an inclusion does not necessarily mean that in all trials charging rape such other assaults must be submitted. Instead, this matter should be governed by the testimony presented ... It may at times become the duty of the court to charge upon such lesser assaults where there is some doubt thrown on the completed offense, or where the testimony offered may fall short of a completed attack, or when any controversy might have arisen relative to such facts.”
The reason for all of this, along with a statement directly contrary to the “guilty only” notion, was explained by Judge Hurt for the former Court of Appeals in Liskos-ski v. State, 23 Tex.App. 165, 3 S.W. 696, 698 (1886) with respect to certain testimony of the wife of the accused, the sole purported witness to the transaction:
“. . . Yet, granting to this its proper legal force in reaching a conclusion upon the general question of guilt or innocence, does not her testimony, in some of its parts, present the theory that the killing ... was upon sudden quarrel and without malice? We conclude that it does; and, in so concluding, it is not said that the appellant is not guilty, if guilty at all, of a higher grade of offense than manslaughter, or that he is guilty of that offense; nor was it necessary that either deduction should have been drawn by the trial judge below, nor is it now by us here. Any theory legitimately arising out of the evidence in a ease imposes upon the court the duty of submission by appropriately instructing upon the law governing it; and this, without regard to the strength of weakness of the supporting facts. Uniform with the previous *895rulings of this court is the doctrine here declared, viz.: The charge of the court must make a pertinent application of the law covering every theory arising out of the evidence; that the duty is not dependent upon the court’s judgment of the strength or weakness of the testimony supporting the theory, it being the prerogative of the jury to pass upon the probative force of the testimony. The court should have given an instruction upon the law of manslaughter, and its failure to do so was error.” [Emphasis in original]
To the same effect are, e. g., Jones v. State, 33 Tex.Cr.R. 492, 26 S.W. 1082 (1894); Arnwine v. State, 49 Tex.Cr.R. 5, 90 S.W. 39, 4018 (1905); Steen v. State, 88 Tex.Cr.R. 256, 225 S.W. 529, 531 (1920); Butler v. State, 121 Tex.Cr.R. 543, 51 S.W.2d 384 (1932).
I respectfully dissent.
PHILLIPS, J., joins.. Perhaps because the author of Williams had not participated in Campbell, he overlooked it. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)
. Curiously enough, the dissenter in Eidred also dissented in Campbell, as had the author of Eidred, and the other member making a majority in Eidred had not participated in Campbell, but wrote Williams.
. Thus, the final reasoning of Eldred and Williams is approved by only two judges of the full Court. This somewhat unusual situation is enough to arouse curiosity about the antecedents of the “guilty only” rule.
. The lesser cited Torres v. State, supra, predates McBrayer, and claims kinship to Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957) and Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952). Hale v. State, supra, claims Daywood v. State, supra, as sole progenitor. Torres, then, is a limb from the Day-wood branch.
. The “noted” statement is followed immediately by the observation that “the record contains no evidence raising the issue of aggravated assault.” The offense was indecent fondling of a child; appellant while admitting his presence on the occasion denied he “molested” the child.
.Similarly, in Bush v. State, 172 Tex.Cr.R. 483, 358 S.W.2d 384 (1962) the same writer rejected the propriety of charging false imprisonment as a lesser included offense to kidnapping, finding that Daywood was adverse to appellant Bush’s contention in that he neither testified nor produced witnesses “and there was no evidence which would show that, if guilty, he would be guilty only of the lesser included offense.” [Emphasis in original] See also his treatment of Daywood in the robbery by assault cum assault with intent to rob case of Lewis v. State, 479 S.W.2d 74, 75 (Tex.Cr.App.1972).
.As its authority the Court quoted from the “well settled” rule in 4 Branch’s Annotated Penal Code (2nd Ed.) 219, § 1889, to the effect that if the case is either assault with intent or that accused is not guilty a charge on aggravated assault may be properly refused, then cited Hale and Daywood, supra, and pointed to Garza v. State, 479 S.W.2d 294 (Tex.Cr.App.1972)-a murder with malice conviction in which failure to instruct on murder without malice is not error “unless there is some testimony which raised the issue and therefore calls for such a charge,” citing inter alia, 4 Branch’s Annotated Penal Code (2nd Ed.) 658, § 2302.
. That is, entering a building or habitation without effective consent of the owner and committing or attempting to commit theft. Yet, Day was charged with entering with intent to commit theft.
. Thus, the Day majority examined “the facts in evidence;” Judge Roberts tested the strength of the State’s evidence; Judge Douglas looked to testimony of the accused.
. On rehearing the Court adhered to the majority opinion on original submission and addressed a new contention made by the State. Continuing to dissent on the McBrayer point, Judge Morrison did not agree “that the evidence in this case raises the issue of criminal trespass,” and Judge Douglas reiterated that “appellant’s testimony does not show a criminal trespass.... [H]e went into the building rightfully in the early morning hours to call officers to report a burglary. After the entry, he committed the crime of theft. No crime of criminal trespass was alleged and no such crime was proved by appellant's testimony." Even the dissenters, then, would take different looks at the record.
. The vacancy created by retirement of Judge Morrison was filled by election of W. T. Phillips in 1976.
. Turning again to the majority opinion Judge Roberts seems to interpret language used by Judge Douglas similar to the impression Presiding Judge Onion drew in Day, see ante at pp. 889, 890. Thus, Judge Roberts charged that from its statement “that ‘[tjhere is no testimony in the present case that would make appellant guilty of only the crime of trespass’ .. . the majority is apparently construing McBrayer to mean that the evidence must exclude the possibility of the appellant’s guilt of the greater offense before a defensive charge on the lesser offense is required. This has never been, nor should it become, the law.”
. One involves possession of a “firearm, namely a pistol” while the other speaks of carrying “a handgun ...”
. Although the Hazel court was determining whether one offense is lesser included within the offense charged on an issue other than whether a charge on the lesser included offense should have been submitted, the evidence examined to make that determination came solely from testimony offered by the State, see 534 S.W.2d at 701, 703. For all that appears from the opinion the appellant neither testified nor presented any evidence on this matter.
. The dissent by Judge Roberts, joined by Judges Phillips and W. C. Davis, seeks to demonstrate by delineating the four statutory methods of committing aggravated robbery and the four statutory ways of committing theft that “an aggravated robbery can be proved without proof that a theft actually occurred,” that “theft involves a more serious risk of injury to the victim’s property than aggravated robbery” and that the two offenses differ in respects other than their respective culpable mental states; ergo, theft is not a lesser included offense of aggravated robbery.
.The reference in Eldred is to “No. 55,142, delivered January 17, 1979,” but that is believed to be erroneous because the only Thomas v. State opinion handed down that date is as cited in the text above, and it deals with the matter under consideration.
. To this last sentence the panel dropped a note explaining that in holding the entire record must be considered “we have expanded Campbell which permitted an examination of the State’s evidence alone,” and thereby placed Campbell “in line” with Thomas v. State, 578 S.W.2d 691 (Tex.Cr.App.1979); Williams v. State, supra; and McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974). Yet, as one may read Campbell, excerpted above, the Court examined the entire record, especially testimony of appellant on his own behalf.
. “Now from this statement of the case, was appellant entitled to a charge on manslaughter? ... Might not the jury, as they evidently did, disregard altogether the testimony on that phase of the case (self defense), not believing it to be true, and yet, had they been permitted, have found appellant guilty of manslaughter? It is not necessary for us to say that they would have so found. Indeed, the evidence for the state is very strong, indicating murder, and the phase of manslaughter arises alone from appellant’s testimony. The criterion is ... was there sufficient evidence to have required a charge on that subject.”