“Appellant contends that this issue was raised by the evidence and that he timely requested the court to submit the issue to the jury.”
How later courts described this case
- “Appellant contends that this issue was raised by the evidence and that he timely requested the court to submit the issue to the jury.”
- victim’s act in pointing and firing pistol at defendant sufficient provocation
- robber, accused of murdering his intended robbery victim, was not entitled to a self-defense instruction during the guilt-innocence phase of his trial, where the only evidence presented at trial showed that the defendant provoked the necessity for self-defense by attempting to rob the victim
Written by the judges who cited it.
The opinion
ONION, Presiding Judge,
concurring.
This appeal is from a conviction for capital murder committed during the course of *948 robbery. See V.T.C.A., Penal Code Sec. 19.03. Punishment was assessed at death in view of the jury’s affirmative answers to special issues nos. 1 and 2 submitted under Article 37.071(b)(1) and (2), V.A.C.C.P.
At the outset we are confronted with appellant’s contention that the trial court erred in overruling his timely presented motion to quash the indictment because it failed to allege the name of the robbery victim which was essential as part of the aggravation and to elevate the charged offense from murder (V.T.C.A., Penal Code Sec. 19.02) to capital murder (V.T.C.A., Penal Code Sec. 19.03). We have only recently held that overruling a timely presented motion to quash a capital murder indictment where the robbery victim was not alleged therein was reversible error. Brasfield v. State, 600 S.W.2d 288 (Opinion on State’s Motion for Rehearing, 1980). See also King v. State, 594 S.W.2d 425 (Tex.Cr.App.1980).
I would adhere to Brasfield and reverse this conviction on that ground alone. I would not reach the question of whether the trial court also erred in not submitting the third special issue under Article 37.071(b)(3), V.A.C.C.P., or whether the appellant properly preserved such error under Articles 36.14 and 36.15, V.A.C.C.P. in effect at the time of appellant’s trial.
For the reasons stated, I concur.
ODOM, J., joins in this concurrence.