DISSENTING OPINION
[MARCH 26, 1993]
NYE, Chief Justice,dissenting
I respectfully dissent on three grounds. With regard to appellant’s insufficiency point, I do not think that this Court need reach the issue presented under Lee and Bradley because appellant’s claim here is not the same as that addressed in those cases. Even if appellant’s argument were the same, I would hold that appellant is estopped from challenging the evidentiary sufficiency since she failed to object to the charge given. Thirdly, I disagree with the majority’s finding that the admission of *252hearsay evidence constituted reversible error.
By her first point of error, appellant complains of insufficient evidence, stating:
[t]he evidence is legally insufficient to support the conviction in that there is no evidence from which a rational trier of fact could have concluded that appellant was acting under the influence of sudden passion based on adequate cause, but have concluded beyond a reasonable doubt that she was not acting in self defense, (emphasis added).
In addressing the first point, the majority analyzes Lee and Bradley and concludes that appellant may challenge the sufficiency of the evidence here because, although she did not object to the voluntary manslaughter charge, she did not request it either. The language appellant uses in her first point indicates that the Lee and Bradley decisions are not implicated by appellant’s claim.
As the majority ably discusses, Lee and Bradley address the problem in which “sudden passion” arises in a murder prosecution, thus negating the “knowing and intentional” state of mind required for the State to prove murder. Then, the defendant on appeal will argue that sudden passion was not in fact proven. Appellant does not make that argument here. Instead she claims that the mental state described by the element of “sudden passion” is legally congruent to the mental state of “fear of death” in the self-defense instruction. She attacks the jury’s ability to find that she acted with “sudden passion” when the jury did not find that she acted in self-defense.
In order to find appellant guilty of voluntary manslaughter rather than murder, the jury had to find that appellant caused Mark’s death under the “immediate influence of sudden passion arising from an adequate cause.” See Bradley v. State, 688 S.W.2d 847, 849 n. 1 (Tex.Crim.App.1985); TexPenal Code Ann. § 19.04(a) (Vernon 1989). “Sudden passion” must be directly caused by and arise out of provocation by the deceased at the time of the offense. TexPenal Code Ann. § 19.04(b). “Adequate cause” means “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Bradley, 688 S.W.2d at 849; TexPenal Code Ann. § 19.04(a).
Based on appellant’s testimony, a fact issue existed on whether appellant acted under the “immediate influence of sudden passion arising from adequate cause.” TexPenal Code Ann. § 19.04 (Vernon 1989). Thus, under Lee and Bradley, the trial court’s instruction on voluntary manslaughter was proper. Appellant’s testimony also raised the issue of self-defense. Pursuant to the court’s charge, the jury would find that appellant acted in self-defense if it found that:
it reasonably appeared to [appellant] that her life or person were in danger and there was created in her mind a reasonable expectation or fear of death ... and [she] reasonably believed that the use of deadly force was immediately necessary to protect herself against [the] use or attempted use of unlawful deadly force.1
Appellant essentially argues that, under these facts, “sudden passion” and a “reasonable expectation or fear of death or serious bodily injury” are legally congruent. Appellant makes an interesting claim that, under the battered wife theory of self-defense, she cannot be convicted of voluntary manslaughter as a matter of law. I disagree.
Appellant testified that Mark had threatened her, had asked the whereabouts of the gun, and that she “knew it was either him or me.” She also testified that Mark’s attacks that night and in the past consisted of “grabbing,” “pushing,” and “pulling [her] hair.” The jury may properly have concluded that appellant did suffer from battered wife syndrome, that she shot the victim in reaction to a sudden fear or passion aroused by the victim’s behavior, but that she could not reasonably have believed that her use of deadly force was *253necessary in this instance. The jury’s finding is consistent with the facts and the law applicable to this case. This court need not adopt the ruling it does on Lee and Bradley.
Even if Lee and Bradley did apply, I would hold that appellant waived any complaint by failing to object to the charge on voluntary manslaughter. Dicta in both opinions indicates that “failure to object to a charge on voluntary manslaughter on the ground that the evidence does not support it would signal acquiescence on the part of the accused in the trial court’s judgment that sudden passion was raised.” Bradley v. State, 688 S.W.2d at 853. Such failure to object to a voluntary manslaughter instruction “will estop the accused from complaining on appeal that the evidence failed to establish all the elements of that offense, namely, sudden passion.” Bradley, 688 S.W.2d at 853. The Court of Criminal Appeals reaffirmed this dicta in Lee stating, “[b]y invoking the benefit of the lesser included offense charge at trial in not objecting to its submission to the jury ... appellant is estopped from complaining on appeal that the evidence failed to establish all elements of that lesser included offense.” State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App.1991).
In the present case, the issue of sudden passion was raised when appellant testified that her husband abused her that night and that she feared for her life when the shooting occurred. Under Lee and Bradley, in order to prove murder, the State was required to negate the “implied element” of sudden passion. This it failed to do. Appellant now challenges the sufficiency of the evidence on the jury’s finding on voluntary manslaughter. Pursuant to Bradley and Lee, I would hold that by failing to object to the charge on voluntary manslaughter, appellant is estopped from challenging the element of sudden passion here.
I further disagree with the majority’s ruling on the admission of hearsay evidence. By her fifth point, appellant complains that the trial court erroneously allowed a rebuttal witness to testify to hearsay statements the victim made regarding his marital problems and his fear of appellant. In the face of appellant's evidence of physical abuse from the victim, the trial court allowed rebuttal on the issue of Mark’s qualities as a peaceful husband. The State called Mitch Sipiala, a friend of the victim’s. He testified that he went drinking with Mark Yann two nights before the shooting. Over appellant’s objection, Sipiala recounted that he and Mark talked about Mark’s impending divorce. Mark was sad and depressed. He was not happy with his marriage, but appellant would not give him a divorce. The victim also stated, “I wouldn’t be surprised if Cherie was waiting for me at home with a gun and shot me.” The State argued that the statement showed Mark’s existing mental state at the time, and the trial court allowed the evidence.
An exception to the hearsay rule exists if the statement at issue is:
a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. Tex.R.Crim.Evid. 803(3) (emphasis added).
The State argues that the statement was not offered to prove that appellant was waiting at home with a gun to shoot the victim. Rather, it was offered merely to show that Mark was the victim in an oppressive marriage, that appellant was possessive, jealous, and vindictive, and Mark feared her. See Whitmire v. State, 789 S.W.2d 366, 371-72 (Tex.App.—Beaumont 1990, pet. ref’d). Earlier, appellant had testified that she and Mark were having marital problems, that he wanted a divorce, and that she had reached a point of personal acceptance in the matter if Mark did divorce her. The testimony in question shows the victim’s mental feeling at the time he related his mood to Sipiala. The statement was not offered to prove that *254appellant was, in fact, waiting at home with a gun to shoot the victim. Rather, it was offered as a statement of the victim’s emotions or mental feeling. The victim did not expressly state, “I feel sad and depressed because my wife and I do not get along and she will not agree to a divorce.” However, the statement shows that such was in fact the victim’s state of mind. Appellant did not object to the relevancy of the statement.
The majority states that “the State did not ask how the witness knew the victim’s mental condition, but attempted to go beyond the mental condition to uncover its cause.” This reasoning is backwards and infers error simply because Mark’s statement evidencing his state of mind is remarkable in light of subsequent events. How the witness knew the victim’s mental condition is clear from his testimony— Mark discussed his personal problems with his friend. By the majority’s reasoning, we must conclude that Mark was depressed because he knew for a certainty that his wife was waiting at home with a gun to shoot him and that she did, in fact, do so. This interpretation is contrary to the witness’s express testimony, and one wonders why the victim went home that night and on the evening of the shooting.
In addition, if the admission of the statement was error, I am convinced beyond a reasonable doubt that it was not reversible error. While the majority concludes that Mark was depressed because appellant was waiting at home with a gun to shoot him, the jury did not so conclude. Had the jury believed that the statement proved the fact asserted, it would have been logical for the jury to find the appellant guilty of intentionally murdering her husband. This the jury did not do. Instead, it found appellant guilty of voluntary manslaughter. It is not for us to second guess the able trial judge’s ruling. I am further convinced beyond a reasonable doubt that this evidence did not cause the jury to forego self-defense as its verdict. The evidence of abuse that appellant presented throughout trial was that Mark “pushed” her, “grabbed her” or “pulled her hair.” While this case raises serious and profoundly disturbing issues of domestic violence, which are appearing with shocking regularity in our society, I believe that the jury was not convinced that appellant could reasonably have believed that the use of deadly force was justified in this instance. See Semaire v. State, 612 S.W.2d 528, 530-31 (Tex.Crim.App.1980).
I would hold that because of Rule 803(3) the victim’s statement was admissible as a statement of mental feeling. Newton v. State, No. 70770, 1992 WL 175742 (Tex.Crim.App. June 17, 1992) (not yet reported); Whitmire, 789 S.W.2d at 371-72. I would affirm the trial court’s judgment.
. See Tex.Penal Code Ann. §§ 9.31(a), 9.32 (Vernon 1974).