dissenting.
It is now axiomatic that whenever possible, this Court should cite authority to sup*533port a holding it makes in a particular case; especially is this true when this Court is handing down a decision of first impression. In this instance, however, the majority does not cite a single decision of this Court, any other court, or any secondary source, that will support its implicit holding that an appellate court may review the record of appeal in order to “second guess” a trial judge’s decision to give the jury an unobjected to instruction on a lesser included or different offense or to give the jury an unobjected to defensive instruction to the charged offense.
In overruling appellant’s contention that the charge to the jury was erroneous, because it failed to instruct the jury that before it could find the appellant guilty of murder it had to first find that the State negated sudden passion, the majority opinion implicitly starts with a false premise, namely, that because it has reviewed the facts, and concluded that there was no evidence to support the trial judge’s decision to give an instruction on the law of voluntary manslaughter, the trial judge should not have given an instruction on voluntary manslaughter in the first place. The majority’s faulty reasoning continues by quoting from this Court’s unfortunate majority opinion of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), namely, “In view of the ‘entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel ... and the record of the trial as a whole,’ the error was not ‘so egregious’ and did not create such harm so as to deny appellant a ‘fair and impartial trial,’ ” in order to overrule appellant’s ground of error.
Notwithstanding the fact that I am firmly convinced that I will live to see the day when a majority of this Court will expressly overrule Almanza v. State, supra, also see the concurring opinion I filed in Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App.1985), and the dissenting opinion I filed in Bonfanti v. State, 686 S.W.2d 149 (Tex.Cr.App.1985), I am compelled to dissent to the majority opinion in this cause because the disposition of the issue that is before us is controlled by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and not Almanza v. State, supra. The majority opinion neither cites nor discusses Mullaney v. Wilbur, supra. The majority opinion, instead, relies heavily upon Almanza v. State, supra, as its authority to overrule appellant’s ground of error. Almanza v. State, supra, is not even in point.
In Mullaney v. Wilbur, supra, the Supreme Court of the United States held that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion of sudden provocation when the issue is properly presented in a homicide case.” Also see Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Sandstrom v. Montana, 422 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Thus, failure to require the State to satisfy this burden of proof is error of constitutional dimension. See Mullaney v. Wilbur, supra, and its progeny, which, not Almanza v. State, supra, control the disposition that this Court should make of appellant’s ground of error. In light of the issue that is before this Court, and what the Supreme Court stated and held in Mullaney v. Wilbur, supra, also see its progeny as found in Shepard’s Citator, I strongly suggest to the majority that it go and re-read Mullaney v. Wilbur, supra, and its progeny, which it neither cites nor discusses in its opinion.
A clear reading of Almanza v. State, supra, should make it evident to anyone that what this Court was deciding in that case was what meaning should be given to Art. 36.19, V.A.C.C.P., which statute merely states the Texas standard of appellate review, as established by the Legislature of this State, for error in the jury charge. And that’s all Almanza v. State, supra, stands for; nothing more and nothing less. Thus, in this instance, to use Almanza v. State, supra, be authority for disposing of appellant’s contention that the trial court’s charge to the jury contained reversible error is much like trying to make a square peg fit a round hole.
The record in this cause is clear that the trial judge, after having personally ob*534served and heard the witnesses, concluded therefrom that the appellant was entitled to an instruction on the law of voluntary manslaughter, and he so instructed the jury on that offense as well as the offense of murder. However, in instructing the jury on the offense of murder, the trial judge committed Federal constitutional error by failing to instruct the jury that before it could find the appellant guilty of murder it had to first find, beyond a reasonable doubt, that the State negated sudden passion. See Mullaney v. Wilbur, supra,1 and Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1984).
There is no question but that under Mullaney v. Wilbur, supra, also see Cobarrubio v. State, supra, the error in the jury charge in this cause is error of constitutional dimension because the error in the charge violates the Due Process Clause of the Federal Constitution.
Because the majority has erroneously considered and disposed of appellant’s contention that the charge to the jury contains constitutional error, I must respectfully dissent.
. In Mullaney v. Wilbur, supra, Justice Rehnquist pointed out in the concurring opinion that he filed in that cause that the defendant “made no objection to the trial court’s instruction respecting the burden of proof on the issue of whether he had acted in the heat of passion on sudden provocation.” 421 U.S., at 703, 95 S.Ct., at 1892). Notwithstanding there was no objection, the majority of the Supreme Court did not even mention or consider this fact in Mullaney v. Wilbur, supra.