concurring.
The decisions of this Court construing and interpreting V.T.C.A., Penal Code, Section 19.04 resemble one trying to make a square peg fit a round hole. For this reason, if no other, I strongly urge that the next session of the Legislature put Section 19.04 where it belongs—under Section 19.-02. I also recommend that this be done in simple language; much like the language God used when he spoke to Moses on Mount Sinai, which language was repeated by Moses in the plains of Moab. See Ex. 20:1-17; Deut. 5:6-21 (King James Version of the Bible 1611).
In the meantime, this Court should overrule Braudrick v. State, 572 S.W.2d 709 (Tex.Cr.App.1978, and its progeny which hold that causing death under the immediate influence of sudden passion arising from an adequate cause “is in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter.” This language is incorrect because the offense of voluntary manslaughter is a distinct and separate offense from the offense of murder. It is not a lesser included offense of the offense of murder, nor is it either a defense or in the nature of a defense to the offense of murder. By Legislative edict, it is a separate and distinct offense and this Court should treat it accordingly.
The record of this cause reflects that appellant was convicted of committing the offense of voluntary manslaughter on an indictment charging him with committing the offense of murder. In his appeal, he challenges the sufficiency of the evidence. The majority, blithely and erroneously I believe, answers his contention by stating the following: “Proof of a greater offense will sustain a conviction for a lesser included offense.” It then cites seven decisions of this Court for authority. None of them, however, implicate or discuss Section 19.04. Of course, this is understandable because all of the decisions were decided prior to January 1, 1974, when the present Penal Code, which contains Section 19.04, became effective.
My research reveals that in all probability it was not until after 1900 that there became such an offense as the offense of voluntary manslaughter. Instead, the issue of whether a killing was done in sudden passion or as a result of adequate provocation was either a justification for the killing or the act of killing occurred when the defendant was acting with sudden passion, thus entitling him to have a lesser punishment assessed than that provided for the offense of murder.
I believe that in 1973 the Legislature of this State acted egregiously when it enacted Section 19.04 and expressly provided that voluntary manslaughter was a separate and distinct offense from the offense of murder. The road that this Court has since taken in interpreting Section 19.04 appears to be one and the same that this Court took when it interpreted former Article 1257c of the 1925 Penal Code. As most of us now know, this Court, in its interpretation of Art. 1257c, supra, handed down some awful decisions, to the extent that the Federal Courts intervened. For example, in Galloway v. State, 420 S.W.2d 721 (Tex.Cr.App.1967), this Court held that murder without malice was not a lesser included *396offense of the offense of murder. However, the Federal brethren then sitting in New Orleans disagreed, see Galloway v. Beto, 421 F.2d 284 (5th Cir.1970), and held that for double jeopardy purposes it was a separate and distinct offense. But the ruling by the Federal Court did not deter this Court from holding only three years later that the presence or absence of malice aforethought only went to the issue of punishment. See Foster v. State, 493 S.W.2d 812 (Tex.Cr.App.1973). Interestingly, this holding came approximately 48 years after the 1925 Penal Code was enacted and less than one year before the 1974 Penal Code was to go into effect.
The majority, however, somehow manages to reach the right result, albeit for the wrong reason. Under the present version of Section 19.04, supra, there is only one way to consider and dispose of appellant’s contention that the evidence is insufficient, and that is to apply what was stated in Jefcoat v. State, 644 S.W.2d 719 (Tex.Cr.App.1982), namely:
... where a jury, as here, has found a defendant guilty of the ... offense of voluntary manslaughter it is only necessary for [the reviewing] Court to make the determination whether the evidence was sufficient to establish the offense of murder. If that determination is made, and it is unfavorable to the defendant, the defendant is in no position to complain because the finding of the jury that the defendant was guilty of voluntary manslaughter, though possibly error from the standpoint of a reviewing court, was actually error favorable to the defendant, of which he [should not be able to] complain on appeal.
Because the evidence adduced in this cause is clearly sufficient for a rational trier of fact to have concluded that appellant committed the offense of murder, I am able to concur in the disposition that the majority makes of appellant’s assertion that the evidence was insufficient to sustain his conviction for voluntary manslaughter.