dissenting.
In my opinion, Appellant sufficiently preserves his objections regarding the State's burden of proof for our review. I disagree with the majority opinion in its holding that the State met its burden of proving sudden passion based on the evidence in this record.
I am of the opinion that appellant’s conviction should be reversed and remanded with instructions to the trial court to enter a judgment of acquittal.
From the record I would agree with appellant that the state’s version of the case was that of a premeditated killing complete with antecedent threats by appellant. The witness Collett testified that appellant came into his restaurant after the shooting. He heard the appellant say on the phone: “I killed the son-of-a-bitch.” The witness Linda Harris, Deputy Sheriff Harris’s wife, testified that appellant phoned their office from the restaurant after the shooting. When she answered the phone appellant stated that he had shot the deceased with a “45” because the deceased was “choking him or had choked him.” The witness Quintero testified that appellant and the deceased, the witness’s boss, argued outside of appellant’s auto for a short while. Quintero testified that appellant participated in the following series of events: appellant got in his car, stepped out of his car, fired a shot at the deceased, got back in his auto, shot the deceased who had also got in the car, and finally, after the shooting, appellant pushed the deceased out of the auto and drove off.
Appellant’s entire case was one of self-defense. Threats made by the deceased and the deceased’s reputation for being a violent person were the basis of the defense. Testimony existed in the record as to a communicated threat by the deceased against the appellant shortly prior to appellant’s visit to the deceased’s ranch. The witness Stephen testified as to the necessity for his company having to obtain a temporary restraining order against the deceased approximately 2½ years before the shooting in question. The witness Hanson testified that appellant told her on the phone the day of the shooting that he “had to do it, he was choking me to death.” The witness Echart testified that he accompanied appellant’s brother to the sheriff’s office in Sheffield and heard appellant tell his brother that the deceased tried to kill appellant: that “he tried to kill me.” The witness Talley testified that the deceased broke the witness’s nose and dentures in a fight on Super Bowl Sunday, 1981. The witnesses Fuentez and Sage, former police officers in Ft. Stockton, testified that on March 30, 1980, they arrested the deceased for driving while intoxicated. While the deceased was being handcuffed a struggle ensued and it took four policemen to put the deceased in their patrol car. The witness Mclnally testified that the deceased had a reputation for being a person of “violent aggressive and dangerous disposition.” The witness Fitzhenry testified as to an incident that occurred in deer season, i.e. January 1980, wherein the deceased and another fired shots at the witness and his companion and attempted to ram their truck while chasing them all the way to Rock Springs. The defendant testified that he shot the deceased in self-defense; that as he was attempting to leave the deceased’s ranch in his car after having been roughed up by the deceased, the deceased reached in and started choking him; appellant tried to get in the back seat then shot the deceased; that the deceased kept telling appellant he was going to kill him; that the choking relaxed after the shooting and he pushed the deceased out the door and drove off. The witness Wright testified he was with the deceased during the incident testified to by the witness Fitzhenry.
“Sudden passion” is generally said to be manifested by an excited and agitated mind at the time of the killing caused by an act of the deceased. Hobson v. State, 644 S.W. 2d 473, 478 n. 10 (Tex.Crim.App.1983); *701TEX.PENAL CODE ANN. 19.04(b) (Vernon 1974). “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. TEX. PENAL CODE ANN. 19.04(c) (Vernon 1974).
In the instant case appellant removed his gun from the glove compartment prior to being grabbed and choked by the deceased. While the attack of the deceased on appellant inside the auto raised the issue that appellant shot the deceased in self-defense, there is no showing that appellant shot the deceased under circumstances which would constitute the offense of voluntary manslaughter. See Luck v. State, 588 S.W.2d 371, 375 (Tex.Crim.App.1979), cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980).
Absent such evidence I conclude that the state failed to meet its burden. I would sustain appellant’s ground of error number eighteen.
Accordingly I would reverse the conviction and remand this case to the trial court with instructions to enter a judgment of acquittal. Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15, 21 (1978).