dissenting.
I respectfully dissent to the majority opinion.
This is a non-capital direct appeal case that has been on this Court’s docket since February 21, 1980. It was not submitted until January 12, 1983. On March 3, 1983, without any judge dissenting and with only one judge concurring in the result, the opinion I authored for the Court was handed down.
When appellant’s cause was docketed, this Court had the policy, just like its counterparts on the federal side have, that it would always consider unassigned error if the error was deemed by a majority of this Court to be “fundamental error”. As to just what might be considered fundamental error, this became a judgment call by the majority. However, as seen by the list of subjects that is set out in 4 Texas Criminal Practice Guide § 9.07[5][f], subject to a majority vote, the subject matter was without any limits.
The original opinion of this Court held that the trial judge’s jury charge in this cause was fundamentally defective because the burden of proving the lack of sudden passion was not placed upon the prosecution. In so holding, the opinion relied almost entirely upon Cobarrubio v. State, 675 S.W.2d 749 (Tex.Cr.App.1983), which had just recently been approved by this Court on January 12,1983. In short, when the opinion of Jenkins, supra, was handed down, Cobarrubio, supra, was just then “hot off the press”. There were no dissents to what the Court stated and held in Cobarrubio, supra. One judge concurred in the result. On September 26,1984, with only two judges dissenting, the State’s motion for rehearing in Cobarrubio, supra, was denied without opinion or comment.
I am still firmly convinced that what I wrote for the Court on original submission was correct. I also believe that what I have stated in the dissenting opinions that I filed in Goff v. State, 720 S.W.2d 94 (Tex.Cr.App.1986); Lawrence v. State, 700 S.W.2d 208 (Tex.Cr.App.1985); Castillo-Fuentes v. State, 707 S.W.2d 559 (Tex.Cr.App.1986); and Moore v. State, 694 S.W.2d 528 (Tex.Cr.App.1985), is still good law, and some day my remarks will be vindicated.
It has been said that “Trial courts search for truth and appellate courts search for error.” 2,000 Famous Legal Quotations 131. To a certain extent this is true.
The members of this Court sit far removed from the field where the battle was fought, and oftentimes lead a monastery type existence. One weakness an appellate court has is that its members do not have the vantage point of what occurred in the trial court that a trial judge has. For example, in this instance, the trial judge, from his position in the pits, concluded as a matter of law that the evidence sufficiently raised the issue whether the killing by appellant was done under sudden passion and he so instructed the jury. Unfortunately, he failed to place in the charge the requirement that the burden was on the prosecution to prove that there was a lack of sudden passion on the part of appellant when he allegedly killed the deceased.
Today, however, a majority of this Court, sitting approximately 200 miles from the location where the trial took place, after almost three years, after leisurely leafing through the pages of the record of appeal, in an almost pastoral and antiseptic type sitting, concludes that the trial judge erred egregiously when he concluded that the issue of sudden passion was raised by the evidence adduced at trial. Today, a majority of this Court concludes that the trial judge should not have given the instruction on sudden passion in the first place and erred egregiously by so charging the jury.
*446There is no doubt whatsoever in my mind that a majority of this Court, which would include myself, would unquestionably overrule a defendant’s contention that a trial judge erred by not permitting his trial counsel to argue for as long as he saw fit. And yet, in this instance, a majority of this Court has the audacity to find fault with the way that appellant’s counsel argued the case and also faults him for not arguing every conceivable aspect of the case on which the jury was instructed, no matter how long it took. Of course, contrary to trial counsel when he argued his case, time constraints, just like changing the rules after the game commences, usually do not trouble an aggressive and assertive majority of this Court.
It is obvious to me by what the majority opinion states, either expressly or implicitly, that those members of this Court who vote for the opinion have too long been away from the pits. After carefully reading the majority opinion several times, and the above opinions to which I dissented with opinions, it appears to me that the suggestion that I have heard some lawyers and trial judges make, that some appellate court judges should be forced to periodically come down from their place on Mount Appeal, and see the real world in action, probably has a great deal of merit.
In conclusion, I find that what Justice Jackson said many years ago is probably just as true today as the day when he uttered these words: “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed. 469 (1953). This is so true of those members of this Court who vote for the majority opinion.