dissenting.
Just last year this Court delivered an opinion stating:
“We granted the State’s petition for discretionary review in order to consider the court of appeals’ holding that there was fundamental error in the jury charge. We affirm the court of appeals’ ruling.”
Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex.Cr.App.1986).* It is, therefore, sheer folly to claim, as the majority does at page 441 of its opinion, that “we have determined that such error is no longer fundamental error [and] our review of such unassigned error was error itself.” Moreover, if the matter may constitute fundamental error, acting here on a direct appeal we certainly have power and authority to address it in the interest of justice. Carter v. State, 656 S.W.2d 468 (Tex.Cr.App.1983).
Turning to the merits, then, while the majority summarizes them it ultimately gives short shrift to facts of the matter, finding at page 443, that the issue of sudden passion was not raised by testimony. There is no analysis of evidence, particularly appellant’s testimony recounted by the majority at pages 442-443 of its opinion in which among other emotions it characterizes appellant as “panicking” in the face of impending attack by three young hooli*444gans — one of whom is armed with a hammer.
Cavalierly to say that his emotion was “fear, standing alone” is to minimize a patently obvious “degree of anger, rage, resentment or terror [this escalating assault upon his body by the trio would commonly produce] in a person of ordinary temper.” V.T.C.A. Penal Code, § 19.04(c). Compare Castillo-Fuentes, supra, at 560, and see prior cases where the Court found evidence sufficient to warrant an instruction on voluntary manslaughter, or to support a finding that the offense was committed: e.g., Humphries v. State, 615 S.W.2d 737 (Tex.Cr.App.1981) (stabbing in course of heated argument); Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978) (stabbing in barroom brawl); Lucky v. State, 495 S.W.2d 919 (Tex.Cr.App.1973) (shooting shortly after insulting conduct led to heated argument); Parks v. State, 473 S.W.2d 32 (Tex.Cr.App.1971) (stabbing during argument over dollar debt). Significantly, appellant testified that he was unaware he had killed anyone until the next day.
The judge of trial court believed evidence raised an issue of sudden passion as he charged the jury on it, Daniel v. Sate, 668 S.W.2d 390, at 393 (Tex.Cr.App.1984); according to Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985), it is sufficient, viz: testimony that accused was “very angry and upset” at earlier behavior of deceased “shows provocation and, when coupled with the decedent’s alleged beating of appellant immediately preceding the shooting, is sufficient to raise the issue of sudden passion,” id., at 211. Here, there is provocation throughout, from initial dangerous attempt to “curb” the Firebird driven by his companion, unlawful pursuit to their apartment complex, deliberate hostile confrontation and ensuing gang assault.
The majority makes too much of statements in voir dire by and of content of argument of counsel for appellant. Essentially it reprises the notion first advanced in Lawrence v. State, supra, at 213, that “voluntary manslaughter is an incidental theory of the defense.” But an issue of sudden passion raised by evidence “need not be a ‘theory’ claimed by one party or another — it exists independently in the evi-dentiary facts of the matter. Daniel v. State, 668 S.W.2d 390, 393 (Tex.Cr.App.1984),” and counsel should not be required to “run the greater risk of demanding that his client be found guilty of a lesser included offense in order to predicate a claim of deprivation of due process and due course of law through fundamental error committed by a trial court in instructing the jury as to elements it must find to convict him of the greater offense.” Ex parte Chandler, 719 S.W.2d 602 (Tex.Cr.App.1986) (Clinton, J., dissenting at 608 and n. 10 and accompanying text).
Long ago the Court taught a lesson that the majority is unwilling to accept and follow, viz:
“However, it is not necessary that the testimony of the accused be that which raises the issue of manslaughter. Indeed, he may assert that the killing was attributable to another cause than passion; but if the facts of the case in evidence fairly tend to indicate a homicide resulting from any such emotion of the mind as renders it incapable of cool reflection, it becomes the duty of the trial court to submit voluntary manslaughter, and leave to the jury the ascertainment of whether or not such killing was the result of such cause, and whether or not such cause was adequate. We have held that manslaughter should have been submitted, even though the accused claimed the homicide an accident, [citation omitted]; also when he claimed it committed in self defense, [citations omitted], also when he claimed an alibi, [citation omitted].”
Steen v. State, 88 Tex.Cr.R. 256, 225 S.W. 529 (1920) (Opinion on State’s Motion for Rehearing, at 531).
The supreme irony in all of this is that the majority views “the strategy used by the defense,” at 443, in light of more developments occurring long after the trial of this case. Quaere'. Had the trial court given the jury a correct and proper charge on the State’s burden of proving the absence of immediate influence of sudden *445passion arising from adequate cause, Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978), would the defense “strategy” be that which the majority critiques today?
This cause was correctly decided without dissenting opinion more than four years ago.
I dissent.
DUNCAN, J., joins in this opinion.A11 emphasis is mine throughout unless otherwise noted.