dissenting.
I respectfully dissent. The majority has determined that appellant’s written statement constitutes no evidence that he was acting under the immediate influence of sudden passion arising from an adequate cause when he inflicted stab wounds on the decedent, causing her death. I disagree.
The majority opinion correctly recites the principle that a charge of voluntary manslaughter in a murder prosecution is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause.
Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983) (en banc). However, this principle must be considered together with other principles of law concerning lesser included offenses. In Hobson, the Court stated that the question is whether “some” evidence that the defendant was acting under such “immediate influence” is present. Hobson v. State at 478.
In reaching its decision as to the propriety of a charge on involuntary manslaughter, the trial court must consider all evidence, and if any evidence, whether contradicted or not, raises an issue that a lesser included offense may have been committed, the trial judge must include a proper instruction on the lesser included offense. *430Lugo v. State, 667 S.W.2d 144, 145 (Tex.Crim.App.—1984) (en banc). The evidence must be viewed objectively, through the eyes of an ordinary man. Hobson v. State at 478. Magic words, such as “sudden passion” are unnecessary, so long as the circumstances give rise to the inference that the defendant acted under “sudden passion.”
Several conclusions are reached by the majority in their analysis of appellant’s statement, with which I disagree. The majority concludes that “Jones did not even make a bare claim of fear;” that “Jones initiated the provocation leading to the deceased using a weapon by breaking into her house to steal;” and that “the fact that Jones thought the deceased could reach a knife did not show the requisite fear, only a conscious awareness of danger.” Judge Clinton, in Daniels v. State, 645 S.W.2d 459, (Tex.Crim.App.1983) (en banc), stated that “a bare claim of ‘fear’ does not demonstrate ‘sudden passion arising from adequate cause,’ ” yet, he recognized that “on the other hand ‘fear’ that rises to the level of ‘terror’ may constitute sudden passion when its cause is such that would commonly produce a degree of terror ‘sufficient to render the mind incapable of cool reflection.’ ” In Lugo, the court adopted the language used in several earlier cases for the proposition that the trial court’s judgment of the strength or weakness of the evidence is not controlling. Being the prerogative of the jury to pass upon the probative force of the evidence, the appellant has the right to have a jury and not the court decide the effect of such evidence.
With these guidelines in mind, I conclude that a rational trier of fact could have found that the appellant, upon being caught in the apartment, sought to flee without the intention of harming anyone. When cornered, he fell into a chair and, in an attempt to protect himself, wrestled the knife from his assailant. After gaining possession of the knife, he again retreated, trying to escape, but when he saw the assailant reach for the drawer he thought she was reaching for a knife. He then told her to “let him go,” to which she responded, “I am going to kill your ass.” It was at this point in time that “Everything got blurry then and I started to stab her because I thought she was going to kill me.” Under these circumstances a rational trier of fact, viewing the circumstances with the eyes of an ordinary man, could have well concluded that appellant’s fear rose to the level of terror which rendered him incapable of cool reflection, and acting under this immediate state of passion, he inflicted the fatal stab wounds.
I would reverse and remand the cause for the failure to include the lesser included offense of voluntary manslaughter in the charge.