dissenting.
I disagree with the test employed by the majority in determining that the trial court erred in refusing to grant a charge on voluntary manslaughter.
I have searched the record in vain for evidence which raises such an issue. At best I have found evidence in the appellant’s testimony which indicates that he became apprehensive when the deceased reached into the trunk of his car and produced what later turned out to be a pistol. In response to the act of the deceased and in anticipation of what eventually transpired appellant reached for and produced a weapon of his own which he fired only after being beaten to the punch by the deceased.
There is nothing in the record which indicates that appellant acted under the immediate influence of sudden passion. To the contrary, appellant anticipated the event and prepared himself to respond to the occasion. Clearly the defensive posture relied solely upon a theory of self defense which appellant’s attorney candidly admitted before the jury in his opening statement.
I agree that I would have some difficulty imagining a specific event more likely to cause anger, rage, resentment or terror in a person of ordinary temper than to have someone aim a gun and fire. But what I might imagine has no bearing on the evidence raised at the trial. It might well be that appellant experienced all of the elements of sudden passion necessary to raise voluntary manslaughter yet unless the record reflects it this court is in no position to fill in the gaps based upon what we might have said.
Where is the evidence that appellant exhibited an excited and agitated mind at the time of the killing caused by an act of the deceased? Cf. Roberts v. State, 590 S.W.2d 498 (Tex.Crim.App.1979).
To the contrary, the testimony of appellant, the only witness under the facts of this case capable of supplying evidence of “sudden passion,” demonstrates a person possessed of cool reflection throughout the entire incident. Cf. Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App.1983).
A charge on voluntary manslaughter is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from adequate cause. Hobson v. State, 644 S.W.2d 473 (Tex.Crim.App.1983) reversing, 627 S.W.2d 532 (Tex.App.1982).
But if the evidence only raises the issue of self defense, a charge on voluntary manslaughter is not called for. Luck v. State, 588 S.W.2d 371 (Tex.Crim.App.1979).
Here, the initial attack by the deceased raised the issue of self defense but there was no showing that appellant shot the deceased under circumstances which would constitute the offense of voluntary manslaughter. I would hold that the trial court correctly refused appellant’s requested charge on voluntary manslaughter.
I respectfully register my disapproval of the majority’s holding.