dissenting.
I respectfully dissent to the majority’s disposition of the points of error relating to the jury charge pursuant to TEX.CODE CRIM.PROC.ANN. art. 37.07, sec. 4 (Vernon Supp.1987). Until settled by our Court of Criminal Appeals, I continue to dissent as noted in Boudreaux v. State, 723 S.W.2d 230 (Tex.App.—Beaumont 1986, no pet.). I would also hold, when necessary, that the instruction is so erroneous and violative of due process that it is fundamental error which rises to egregious harm under Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).
Further, on the authority of Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App.1987), I would hold it unconstitutional as violative of the separation of powers doctrine.