concurring.
I disagree with part of the majority’s resolution of points of error one and two, but agree with the remainder of the opinion.
This case requires us to distinguish between the sudden passion necessary to support an instruction on voluntary manslaughter from the fear that will support the instruction of self-defense.
The record in this case can support two completely different and conflicting versions of the events of the morning of October 31, 1989. The majority has fairly stated the facts that led up to and culminated in the shooting. I only summarize those facts.
The State’s version of the events that morning and the previous night is that the appellant and two officers, who had spent most of the night drinking, were probably drunk as they were driving on the freeway about 5:00 a.m. That same morning, Ida Delaney, a grandmother, was driving her truck on the same freeway, on her way to work at the Houston Post, where she was due at 6:00 a.m. A few weeks before, she had purchased a gun because the parking lot at work was dark in the early morning, and the Houston Post did not have a security guard on duty. At some point, Delaney turned in front of the car with the officers, almost causing an accident. The officers became enraged and began harassing her by tailgating her vehicle and honking at her. Delaney, frightened by the car full of men behind her, drove toward the flashing lights of a Texas Highway Department truck parked on the side of the freeway. She pulled her truck in front of the highway department truck, backed to about four feet from it, got out, and started walking toward it. Seconds later, the car with the officers drove up, and the three men got out. One officer ran to the highway department truck, identified himself as a police officer, and asked the highway department employee to call the police, telling him that the driver of the truck had been shooting at them and was crazy. Meanwhile, the appellant went to the trunk of his car, got his service gun, and then ran toward the Delaney’s truck shouting that *872he was a police officer. Delaney retreated to her truck, got in, and tried to pull the door shut, but the appellant, standing in the way of the door, held a gun to her face and stopped her. Then, with his other fist, the appellant struck Delaney with a hard blow to the face. At the time she was struck, Delaney had not been doing anything, but immediately afterward she leaned over, got her gun, and shot the appellant. The appellant, wounded in the chest, exchanged fire with Delaney, and killed her.
The appellant’s version of the incident is that, although the appellant and two officers had been drinking most of the night, they were not intoxicated or, if intoxicated, it did not affect the appellant’s actions. The appellant contends that Delaney was not, as the State portrayed her, a harmless grandmother. Instead, she was a violent woman who had assaulted police officers, had shot and wounded her former husband, and stabbed someone else with an ice pick. As the appellant and the officers were driving to a restaurant about 5:00 a.m., a truck almost caused an accident, and after they honked, someone in the truck stuck their hand out the window and shot at them. The officers thought the driver of the truck was both dangerous and crazy, and they followed the truck. They did not know the driver was a woman. When Delaney pulled off the freeway in front of the Texas Highway Department truck, one of the officers ran to the truck, identified himself as a police officer, and asked the highway department employee to call the police, telling him that the driver of the truck had been shooting at them and was crazy. After the appellant got his gun from the trunk of his car, he ran toward the truck, yelling that he was a police officer. The door to the truck was open, and only when the appellant reached inside the truck to pull the driver out did he realize the driver was a woman. Delaney bit the appellant on the thumb, and when the appellant pulled back, she shot him. The appellant, wounded in the chest, saw that Delaney was about to shoot him again, and he exchanged shots with her. Delaney was killed, and the appellant was wounded.
There is a critical similarity in the two versions of the events that morning — even the State admits that one of the officers ran to the highway department truck before the appellant ran to Delaney’s truck, and told the workers that Delaney had shot at the officers on the freeway. Thus, on this record, we must assume as uncontro-verted that Delaney shot at the officers while she was in her truck, or at least all three officers believed she shot at them.
The critical difference in the two versions of the events that morning is that the State’s witness contends that the appellant hit Delaney with his fist as she was sitting in her truck, and that it was only after he hit her that she leaned over to get her gun. The appellant contends that he did not hit her, that when she leaned over to the right (he thought she was leaning over to get her gun), he reached in to pull her out of the truck, she bit him on the thumb he pulled back, and then she shot him.
I would separate the facts into two separate time periods: the facts before Delaney shot the appellant and the facts after Delaney shot the appellant. If we narrow our scope to the time period that began when Delaney shot the appellant, I do not believe there is any evidence in this record that supports the instruction on voluntary manslaughter. If there is any support for that instruction, it is only in the events that led up to the shooting, not those that followed it.
After Delaney shot the appellant
Appellant testified that when Delaney shot him, he was “hurt” and "stunned.” As he fell to the ground, he saw Delaney get out of the truck to shoot him again. He testified, “That’s when we both fired again.” On cross-examination, when referring to the issue of intoxication, the prosecutor asked the appellant, “You had absolutely full use of your mental and physical faculties when all this happened?” The appellant replied he did.
*873No other evidence was offered by any witness that shows that the appellant was dominated by an uncontrollable passion after he was shot. The appellant shot Delaney as he fell to the ground, and she was getting out of her truck to shoot him again.
In Daniels v. State, 645 S.W.2d 459, 460 (Tex.Crim.App.1983), the court discussed the instructions of self-defense and voluntary manslaughter in a case in which the defendant asked for but was refused an instruction on voluntary manslaughter. Recall, in the case before us, the appellant wanted an instruction on self-defense and objected to the instruction on voluntary manslaughter. In Daniels, the defendant testified that the deceased threatened to kill him and had reached into his back pocket for what the defendant thought was a gun. The court said that a bare claim of fear of the attacker does not entitle the defendant to a charge of voluntary manslaughter. Id. at 460. The court went on to distinguish fear that rises to the level of terror, which may constitute sudden passion, i/its cause would commonly produce a degree of terror “sufficient to render the mind incapable of cool reflection.” Id.
In this case, as in Daniels, the appellant testified that he shot Delaney because he was afraid she would kill him. The difference between the two cases is that, in this case, the attacker had already shot the appellant, while in Daniels the defendant thought he was about to be shot. In this case, the appellant’s fear of a second shot was well-founded.
The majority agrees with the State that being shot in the chest by another person at close range is an event that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, naturally rendering him incapable of cool reflection. By the majority’s statement, any time any person is wounded by another and shoots in return, it will raise the issue of voluntary manslaughter. I disagree. Once Delaney shot the appellant and was about to shoot him again, only the issue of self-defense is raised. That evidence precludes the issue of voluntary manslaughter. The majority has not cited any case in which the instruction of voluntary manslaughter was held proper when a defendant fires only after being wounded in order to protect himself from another shot.
The majority also states that the appellant’s erroneous belief that he had been shot four times further supports the conclusion that, during these events, he was incapable of cool reflection. After the appellant was shot once, I do not think the mistaken belief that he was hit by additional bullets was unreasonable under the circumstances. The appellant testified he was in shock, which is a natural emotion after being shot.
The majority also states that the appellant’s act of emptying his gun, firing eight shots at Delaney at close range, could support the jury’s conclusion that he was acting out of sudden passion rather than cool reflection, and cites Havard v. State, 800 S.W.2d 195, 217 (Tex.Crim.App.1989). In Havard, the defendant was in a hurt and enraged state of mind before the shooting.
This case is similar to Acosta v. State, 742 S.W.2d 287 (Tex.Crim.App.1986), another case in which the trial court charged the jury on murder, the lesser included offense of voluntary manslaughter (over the defendant’s objection), and self-defense. In Acosta, the defendant was about to be attacked by a man with a knife when he pulled his own knife and killed his attacker. Id. at 288. The court held there was no evidence to support the submission of the issue of voluntary manslaughter, and the court should not have submitted it as a lesser included offense to murder. Finding no evidence of sudden passion to support the submission, the court reversed and remanded with instructions for acquittal. Id.; see also Bradley v. State, 688 S.W.2d 847, 852 (Tex.Crim.App.1985) (the court acquitted the defendant because the jury was instructed on murder, the lesser included offense of voluntary manslaughter, and self-defense, and the defendant had proper*874ly objected to the submission of voluntary manslaughter).
The facts in this case are close to those in another case by the same name, Gonzales v. State, 717 S.W.2d 355 (Tex.Crim.App.1986). The difference, however, is that the defendant in that case requested but was denied the charge of voluntary manslaughter; the appellant in this case objected to the charge and it was submitted over his objection. In Gonzales, after a confrontation in a night club with the victim, a friend of the defendant's, the defendant went to his friend’s car to wait for him. The defendant then saw the victim come out of the club and take something out of the trunk of his car. The defendant picked up his friend’s gun and got out of the car and walked away. The victim came up behind the defendant and fired a shot at him. The defendant then turned around and shot the victim, killing him. In Gonzales, the court said that fear alone was not enough to justify the submission of the charge of voluntary manslaughter. Id. at 357. Similarly in this case, the fear to which the appellant testified was not enough to justify the submission. In Gonzales, the court said that the defendant only indicated he was afraid of the victim, which did not amount to terror that would qualify as a sudden passion. Id.
I conclude that there was no evidence of sudden passion to support the submission of voluntary manslaughter if we limit our review to the facts after Delaney shot the appellant. The only evidence to support the submission of the instruction on voluntary manslaughter occurred before Delaney shot the appellant, as set out in the majority’s opinion.