dissenting.
I respectfully dissent. I would sustain appellant’s fourth ground of error complaining of the trial court’s refusal to charge on criminally negligent homicide and accordingly reverse and remand.
The deceased was shot twice. Appellant’s testimony in explanation of the decedent’s first wound, that he twisted the hand in which decedent Valdivia held the gun, and appellant’s testimony in explanation of decedent’s second wound, that he fired the gun into the ground as a warning to Serra-to who was approaching with a knife, are sufficient to raise the issue of criminal negligence as defined in Tex.Penal Code Ann. § 6.03(d). (Vernon 1974).
The facts in this case are similar to those of Campbell v. State, 614 S.W.2d 443 (Tex.Cr.App.1981). In that case, the defendant’s testimony showed that the decedent entered a room with a gun. The defendant grabbed the hand in which the decedent held the gun and, while they were struggling, the gun went off. The defendant was convicted of murder and the Court of Criminal Appeals reversed on the ground that the defendant’s testimony raised the issue of criminally negligent homicide and, accordingly, a charge on criminally negligent homicide should have been given to the jury. The same should be done in the present case.
The majority holds that appellant’s real defenses were accident and self-defense which deny the mental state essential to criminal negligence. According to the majority, because these issues were properly submitted to the jury, appellant was not entitled to a charge on criminally negligent homicide. The majority’s holding, however, is contrary to the opinions of the Court of Criminal Appeals in the cases of Branham v. State, 583 S.W.2d 782 (Tex.Cr.App.1979), and London v. State, 547 S.W.2d 27 (Tex.Cr.App.1977). In Branham, the defendant was indicted for murder and convicted of involuntary manslaughter. Charges were given on the law of murder, involuntary manslaughter, justification, mistake of fact and self-defense. The Court of Criminal Appeals reversed, stating that:
*905[B]ased on [defendant’s] testimony that she thought the gun was unloaded, that she did not intend to fire the gun, that her finger was not on the trigger, and that the gun accidentally discharged when she was grabbed by a third party, the issue of criminally negligent homicide was raised. Id. at 785.
Likewise, in London the trial court submitted a charge to the jury on the law of murder and of accident, yet failed to include a charge on criminally negligent homicide. The Court of Criminal Appeals reversed stating: “A charge on accident was not sufficient to protect appellant’s rights because it left the jury with the single alternative of finding him guilty of murder or setting him free.” London v. State, 547 S.W.2d at 29. It is apparent, therefore, that if the evidence properly raises the issue of criminal negligence a defendant is entitled to a charge on the issue, regardless of any other charges he may also be entitled to. Contrary to the majority’s holding, there is evidence that appellant is guilty only of the lesser offense of criminally negligent homicide. This is found in appellant’s testimony as to how the deceased was shot twice.
In the present case the court holds that “the evidence, taken as a whole, shows that appellant was either guilty of murder or was guilty of no offense at all because the shooting was an accident or justifiable self-defense.” 1 By so holding the court has substituted its judgment for that of the jury in considering the evidence taken as a whole and has decided that no jury, would accept appellant’s version of how the deceased was shot twice. The majority’s denial of the jury’s prerogative is improper. As pointed out in Moore v. State, 574 S.W.2d 122 (Tex.Cr.App.1978):
The credibility of evidence and whether it is controverted or conflicts with other evidence in the case may not be considered in determining whether a defensive charge or an instruction on a lesser included offense should be given. When evidence from any source raises a defensive issue or raises an issue that a lesser included offense may have been committed and a jury charge on the issue is properly requested, the issue must be submitted to the jury. It is then the jury’s duty, under the proper instructions, to determine whether the evidence is credible and supports the defense or the lesser included offense. Id. at 124.
I respectfully suggest that the majority’s entire opinion, as it deals with the matter of charges on lesser included offenses, is an attempt to abolish the existing law on the right of the accused to a charge on a lesser included offense. It will be society’s loss if a jury is permitted only to convict of the crime charged or to acquit. Under such an arrangement one can take another’s life and go free. At least when the jury has the opportunity to convict for the lesser included offense some punishment could be imposed for antisocial behavior upon conviction of the lesser included offense. The majority’s decision may well create a situation where in yet another murder case one who takes a human life goes free by virtue of a jury acquittal where the jury had only two options — convictions of murder or acquittal. The interests of society would be better served if the jury had other options if raised by the evidence: to wit: convictions for voluntary manslaughter or involuntary manslaughter, or criminally negligent homicide.
Accordingly, I would reverse and remand.
. There is no law and defense of accident in the present penal code, and the bench and bar would be well advised to avoid the term “accident” in connection with offenses defined by the present penal code. Williams v. State, 630 S.W.2d 640 (Tex.Cr.App.1982, en banc).