dissenting.
Today the majority incorrectly relies upon Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982) and Boozer v. State, 717 S.W.2d 608 (Tex.Cr.App.1984) in determining the sufficiency of evidence to support the affirmative finding on special issue Number Two. See also Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983). Without analysis, the standard first employed in Benson, supra, is today extended from use in the guilt-innocence phase of a lesser felony case to the punishment phase of a capita] murder.
In Benson, supra, a majority of this Court found the State had failed to prove its theory of retaliation involving a “witness.” Although the charging instrument in Benson, supra, simply alleged the defendant had the intent to commit the offense of retaliation, the charge properly, if incompletely, and without objection, informed the jury that retaliation is committed where a witness is knowingly threatened or harmed. In other words, the trial court’s charge unnecessarily restricted the jury’s consideration to the complainant’s role as a testifying witness. See and cf. Jones v. State, 628 S.W.2d 51 (Tex.Cr.App. 1980), rather than charging the jury that the general allegation of “retaliation” in the indictment would include retaliation against a witness, informant or public servant. Once incorporated into the charge, and the instruction being proper if restrictive, the State was bound to the higher level of proof required by the instruction. We analogized the situation in Benson, supra, with a situation in which a proper indictment alleges the elements of burglary and alleges the intent element as “intent to commit theft”. We stated:
Since a jury charge authorizing the conviction must require the jury to find all the elements of the offense, (citations omitted) and theft has several different sets of possible elements, the charge must set out one of those sets of theft elements, (citations omitted). If the State fails to object to a charge that defines theft in terms of elements of receiving stolen property and the evidence shows an unlawful appropriation from the owner, the conviction should be reversed for insufficient evidence if a jury convicts under such a charge. The only possible interpretation of the indictment and charge is that the State’s theory is burglary with intent to commit theft — theft by receiving stolen property. Therefore, in viewing the evidence in terms of a proper charge incorporating the indictment, a reviewing court would be bound to find the evidence insufficient as a matter of law. (emphasis in original)
Two matters of interest to the present case can be gleaned from Benson. First, the charge must be a correct instruction. Second, the standard of review specifically applies to the initial trial phase. In Benson, supra, we held that “when a charge is correct for the theory of the case presented we review the sufficiency of the evidence in a light most favorable to the verdict by comparing the evidence to the indictment as incorporated into the charge.” (emphasis in original)
In Boozer, supra, a plurality of this Court again found the evidence insufficient as measured by the charge given at guilt-innocence. See also Ortega v. State, supra. Overlooking one predicate to Benson analysis — the correctness of the charge— the plurality opinion in Boozer stated that it is not the correctness of a charge but simply whether the evidence is sufficient measured by whatever charge is given. Benson is then bootstrapped as authority for this proposition.
I authored Benson but disagreed with Judge Clinton’s interpretation of that opinion in Boozer, joining Judge McCormick’s *412dissent in the latter case, especially in his discussion of trial error and its ramifications. That position remains constant here. I also disagree with the apparent willingness of a plurality of the Court to eliminate the consideration of an indictment allegation in sufficiency analysis, for it is in a charging instrument that the state’s “theory of the case” is first presented, and it is only in the incorporation of the indictment allegations in the charge that a Benson sufficiency analysis gains credence.
In Fain v. State, 725 S.W.2d 200 (Tex.Cr.App.1986) a case not cited by the majority today, the issue presented was much closer to the instant case in that appellant Fain was complaining that the evidence was insufficient to support the finding of “true” to an enhancement count at the punishment phase. The appeals court found that a mechanical error had occurred which “did not comport with the indictment, the evidence or common sense” and treated that appellant’s claim of insufficiency as a jury charge error. Fain v. State, 688 S.W.2d 235, 238 (Tex.App. 8th District 1984). Because the appellant did not object to the charge at trial, the appeals court analyzed the case according to the requirements of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984) (opinion on State’s motion for rehearing) and found that the error did not require reversal.
In Fain, as here, the instruction was incorrect “for the theory of the case presented.” See Benson, supra. We first noted that in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court made clear that its “rational trier of fact” standard for review of evidentiary sufficiency assumes first, that the trier of fact has been properly instructed and second, whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Looking at the claim in Fain, we said that appellant’s claim as presented did not constitute a valid claim of insufficient evidence and concluded that the Court of Appeals did not err in addressing instead the predicate claim of jury charge error. Fain v. State, supra, at 202.
Here, appellant’s claim of insufficiency is also predicated upon jury charge error, the error apparent both by the denial of appellant’s own similar requested charge and from the usual and technical usage of the charge at the guilt-innocence phase of trial rather than at the punishment phase of trial as it appeared here. Under the standard enunciated in Almanza v. State, supra, proper analysis would result in a finding by this Court that appellant was not harmed. Just as we decided in Fain, supra, that the jury there “could not have both believed the evidence of the prior convictions and their commission, and, at the same time, have found that the second offense was not committed after the first became final,” even though they were so instructed, here the jury could not have both believed the evidence of appellant’s prior extraneous offense and found those offenses probative of appellant’s future dangerousness, and simultaneously, have found those offenses to be merely probative of appellant’s intent to commit the underlying offense of which they had already found him guilty. Both instructions effectively asked the respective juries to do the impossible, here being to only view extraneous offenses to determine intent to commit an offense, “if any.” The fact that the offense had been committed by appellant was already decided by the verdict of guilt. The instruction incorrectly implied the jury was to re-examine this finding.
The undisputed evidence, brought and discussed before the jury by both parties, showed that appellant had a long history of prior criminal offenses, some more than adequately demonstrating appellant’s violent tendencies and attitudes. The jury could not have both taken into consideration the evidence of appellant’s priors to determine an affirmative response to the second special issue and also followed the instruction as given, since the determination of guilt had already been made. Given the totality of evidence shown, appellant cannot be said to have been harmed. See Fain v. State, supra.
In the alternative, should the Court decide to attempt application of the Benson standard without a reference to the indict-*413merit and instead using the special issues submitted as the basis for incorporation of the charge, a determination must first be made as to the correctness of the charge. See Benson v. State, supra. If the charge is correct but also unnecessarily restrictive, increasing or changing the State’s burden of proof without objection, the State may be held to that burden at either phase of trial under a Benson analysis, but Benson and its progeny should not be authoritative where a patently incorrect charge is given sans objection, especially where the trial court has previously denied a defendant’s requested instruction covering essentially the same matter and where both State and defense attorneys have discussed a defendant’s prior extraneous offenses and/or conduct during final argument before the jury without objection. An instruction such as the one given here, viewed in light of its boilerplate source,1 was incorrect, both in substance and application, but apparently had no effect on either party or the jury. Given defense counsel’s action in ignoring the charge and discussing the priors, I would hold that appellant has waived any claim of insufficiency based upon the incorrect charge.
All the above is based upon the perception that the instruction was wholly improper and incorrect, and that the majority today, without analysis, applies the Benson line of cases to a factual context distinguishable by form and trial order. However, a second perception is also viable. The instruction, read literally, charges the jury that it may consider extraneous matters only to the extent the matters impact on the intent of appellant “in connection with the offense.” Legalistically, our immediate reaction is that the instruction, commonly given at guilt-innocence, has no place at the punishment phase. But what does that phrase “in connection with the offense” mean, not to this Court as ex post facto reviewer, but to the jury as trier of fact? I submit that the instruction as written allowed the jury, at the least, to review appellant’s conduct immediately prior to committing the instant capital offense, in a broader sense by gauging the appellant’s intent on the night in question vis-a-vis his propensity for future violence. It is a given that the jury may review the circumstances of the capital offense itself in determining a proper response to special issue two. Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987); Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986) and cases cited therein. Premeditation, calculation, mode and manner of the killer’s conduct showing planning and aforethought play a role in the decision and each factor relates to the intent of this appellant in connection with the capital offense. See Landry v. State, 706 S.W.2d 105 (Tex.Cr.App.1985); Demouchette v. State, 591 S.W.2d 488 (Tex.Cr.App.1979). From the record it is clear that appellant was in the process of “rolling drunks” in a certain area of town. Before assaulting and robbing the deceased and his companion, appellant had terrorized the Flading brothers, kidnapping them at gunpoint from another bar in the area, driving them to a more remote scene and robbing them. More than once appellant put the brothers in fear for their lives by shoving a gun in their faces and threatening to kill them. A short time after the brothers ran away, after being robbed, appellant drove back to the same area where he had accosted the Flading brothers, chose another bar, and entered the altercation with Reed and Weaster. Appellant left but returned to the victim’s car after apparently procuring a pistol from his own vehicle. The killing of one of two victims followed.
The prior incident involving the Flading brothers underscores appellant’s intent “in connection with” the capital offense. Appellant was out with an accomplice on the night in question to rob and terrorize. The prior incident demonstrates an ongoing and not isolated course of conduct, which in turn evinces appellant’s future dangerousness. The intent “in connection with” the capital offense here shows a repeat performance with same motive and more violent result. It was not appellant’s intent to commit the offense that was at issue; the *414jury had already decided that question at guilt-innocence. Rather, it was his intent “in connection with” the offense as shown by the premeditated and calculated acts prior to and during the charged conduct that we must be concerned with today. Those acts, demonstrating appellant’s design and determination, his state of mind in connection with the capital offense, are circumstances which were properly before the jury even with the restrictive and improper instruction.
I would also include the pen packets describing appellant’s prior aggravated violent conduct as evidence properly before the jury. This non-testimonial, physical evidence admitted without objection and discussed by both sides during closing arguments was not excluded from purview by the limiting instruction, although any testimony relating to the packets could not be considered. Since there was no objection to the records themselves and because the appellant, through his attorney, acknowledged the offenses, we are not concerned with how appellant was connected to the packets or whether such connecting testimony was excluded through the limiting instruction.
Lastly, I disagree with the majority attempting to turn appellant’s subsequent conduct into “mitigating” evidence to support reformation of a just sentence. The fact that an individual hides from his pursuers or fails to violently confront the police when arrest is attempted is no mitigation of the heineous conduct already perpetrated. I also believe that Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982) is distinguished on its facts and that appellant, while perhaps demonstrating an attitudinal coarseness toward the offense, in no way approaches the cold and calculated violent conduct perpetrated by appellant Marras on several individuals that evening in question.
For these reasons, I respectfully dissent.
McCORMICK and WHITE, JJ., join.. Examination of various resource materials brought to light the source, if not the puzzling rationale, for the instruction in question. The instruction was taken verbatim, except for three words, from the McClung's Jury Charges for Texas Criminal Practice (1985 ed).