concurring and dissenting.
The majority correctly reverses the holding that the Austin Court of Appeals made in its unpublished decision of Lawrence v. *214State, No. 3-82-296, May 11, 1983, that the evidence is insufficient to sustain appellant’s conviction for murder. In this, I concur. However, but because the majority errs in holding that the court of appeals incorrectly held that the jury charge was not Federally constitutionally defective, I must dissent, because the court of appeals did not err.
The court of appeals, in holding that the evidence was insufficient, found that because the issue of sudden passion was raised by the evidence, and because the State failed to disprove sudden passion beyond a reasonable doubt, that this necessitated its holding that the evidence was insufficient. I agree with the majority opinion that “If there is any evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes that evidence, [this Court is] not in a position to reverse the judgment on sufficiency grounds.” The facts that are set out in the majority opinion are clearly sufficient to support the verdict of the jury, i.e., that the evidence is sufficient to establish beyond a reasonable doubt that appellant intentionally or knowingly caused the death of the deceased, as alleged in the indictment. The court of appeals erred in holding that the evidence was insufficient to support the verdict of the jury finding appellant guilty of the offense of murder, as alleged in the indictment.
In the trial court, the question of what constitutes an adequate cause to kill by the accused, when he is then acting under the immediate influence of sudden passion, is an issue of fact for the trier of fact. Roberts v. State, 590 S.W.2d 498 (Tex.Cr.App.1979). However, on appeal, where the defendant has been convicted of the offense of murder, and the evidence at trial raised the issue of adequate cause or sudden passion, an attack on the sufficiency of the evidence falls under the following rule: “[I]f the issue of sufficiency is raised on appeal and a jury has found a defendant guilty of the offense of murder, as alleged in the charging instrument, and the issue of adequate cause was raised and rejected by the jury, this Court will make two determinations: (1) whether the evidence was sufficient to establish the offense of murder and (2) whether the evidence was sufficient to disprove the issue of adequate cause.” Jefcoat v. State, 644 S.W.2d 719, 725 (Tex.Cr.App.1983).
In this instance, the evidence that was presented to the jury, or that might have been presented to any rational trier of fact, was clearly sufficient to establish beyond a reasonable doubt that appellant committed the offense of murder as stated in V.T. C.A., Section 19.02(a)(1), and as alleged in the indictment in this cause. The evidence is also sufficient to establish beyond a reasonable doubt that the State disproved the issue of adequate cause or sudden passion.
• Thus, the majority opinion correctly holds that the evidence is sufficient to support the jury’s verdict. I concur.
However, the majority errs in holding that the trial court did not commit Federal constitutional error in its instructions to the jury in this cause.
Because the majority errs, I must respectfully dissent, and must once again fulminate over this Court’s invocation and application of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), which I have dubbed “Almanza the Terrible,” to the issue that is before us, namely, whether the failure of the trial court to properly place in its instructions to the jury on the offense of murder the fact that the State had the burden of proof to disprove the lack of sudden passion constitutes such a deprivation of appellant’s rights under Federal Constitutional law causes this conviction to be reversed. It should be obvious to any intelligent person that Almanza v. State, supra, is so full of evil that it should be expressly overruled before it gives birth to too many more illegitimate children
Perhaps, however, we can hope that the present majority of this Court is only going through an era of aggressive majoritarianism, and perhaps also we can hope that it is only imitating what the present majority of the Supreme Court of the United States has been doing in recent times, i.e., that *215Court is going through a transitional period, trying its dead level best to betray its responsibility to serve as the impenetrable bulwark of the Federal Constitution, and as the guardian of Federal Constitutional rights. See “Individual Rights and Majori-tarianism: The Supreme Court in Transition,” a study recently released by the Cato Institution, a Washington, D.C. based public policy research institute.
I find that the court of appeals correctly held that the failure of the trial court in its instructions to the jury to place the burden of proof on the State to prove the lack of sudden passion, in the paragraph of the charge applying the law of murder to the facts of the case, was error of Federal Constitutional dimension.
The majority errs in invoking and applying to this cause what it stated and held in Almanza v. State, supra, concerning deprivation of an accused’s rights under State law because of instructions to the jury by the trial judge.
In all due respect to the author of the majority opinion, and contrary to his statement that “Prior to our holding in Almanza, this Court has not had the opportunity to determine if ‘Cobarrubio error’ was fundamental under our State law,” I must point out that in Jenkins v. State (Tex.Cr.App. No. 64,000-64,004, February 16, 1983) (Now Pending on State’s Motion for Rehearing for almost three years), not only did this Court have the opportunity “to determine if ‘Cobarrubio error’ was fundamental error,” but it made that determination without a single dissenting opinion, and held that such error was fundamental error.
In this instance, the error in the trial court’s instructions to the jury did not properly place the burden of proof; thus, the appellant was deprived of his Federal, if not State, constitutional right to receive a fair trial.
What can be more egregious in a trial court’s charge to the jury than this kind of error? What is more violative of due process or due course of law than the error in the charge that is before us?
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), also see Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983), the Supreme Court held that “the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” 421 U.S., at 704, 95 S.Ct., at 1892, 44 L.Ed.2d, at 522.
To me at least, this requires that a jury must be properly instructed by the trial court when the evidence raises the issue of sudden passion.
In all due respect to the majority, if it does not intend to subscribe to decisions of the Supreme Court, when they control the disposition of an issue, it should say so in bold print and not pussy foot around. Before it does so, however, I caution it to read the provision of Article VI of the Federal Constitution, which provide that when the Supreme Court has decided an issue on Federal Constitutional grounds, such decision is the Supreme Law of the Land; “and judges in every State shall be bound thereby.”
The error in the trial court’s charge is error of Federal Constitutional dimension, and not, at this time, error of State Constitutional dimension.
Believing that I have stated enough, and without further fulminating over the subject or elongating this opinion, I will cease writing.
I respectfully concur and dissent.