The opinion
MORSE, Justice,
concurring.
It is my opinion that any error of the trial court in failing to give appellant’s requested instruction on the right of defendant to arm himself and seek an amicable adjustment of differences was not invited by appellant’s request of a charge on provoking the difficulty. Although the state did not request and even requested removal of the provoking the difficulty charge, it is the opinion of this court that such a charge had been raised by the evidence and was properly given and became a part of the court’s charge.
The majority opinion relies on Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975); Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979); and Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977) in holding that appellant, by requesting both the charge [given] on provoking the difficulty and the charge [not given] on the right to bear arms in seeking an amicable adjustment of differences, invited any error in refusing to give the latter charge. In all three cases, the error complained of was in giving a charge which was requested, not in refusing to give a particular charge or a portion thereof. Actually in the Stiles case, the court reversed for failure, despite appellant’s request, to give a charge on negligent homicide which was raised by the evidence, even though appellant also requested and the court gave a charge of accidental death which was held not raised by the evidence. The state argued (1) that since appellant requested the accidental death charge, he was not entitled to a charge on negligent homicide, and (2) the latter was unnecessary because the charge given was sufficient. The appellate court held that although the appellant had invited and could not complain of any error in charging on accidental death, such charge did not adequately protect the appellant when the facts raised the issue of *767 negligent homicide and appellant requested a charge on it. In effect, it was held that the request for one charge didn’t invite the error in failing to give the other.
The appellant was within his right in requesting a particular correct form of the anticipated issue which would limit and thereby affect his right of self-defense. Appellant clearly sought the proper form of both requested charges to prevent the error made in omitting the follow-up charge, which was required if it was raised by the evidence. Young v. State, 530 S.W.2d 120 (Tex.Cr.App,1975). If the evidence raised both issues, appellant had a right to have complete proper instructions which peculiarly applied to the facts pertinent to his defense. It doesn’t appear that appellant is estopped or invited error by being willing to accept the “bitter” (limitation of his right of self defense if shown the difficulty was provoked by appellant) in order to get the “sweet” (right of appellant to bear arms in amicably “seeking an explanation”).
However, since I agree with the majority opinion that the evidence did not raise the issue of seeking an amicable adjustment or explanation, at least on the final and fatal visit, there was no error by the trial court’s refusal of such charge. In Kerr v. State, 134 Tex.Cr.R. 368 , 115 S.W.2d 672 (1938), it was held that there was no error in refusing to give a charge on the right to bear arms in seeking an amicable adjustment or explanation, both because there had been no charge given by the court on provoking the difficulty and also because there was no testimony to the effect that the defendant sought an amicable adjustment or explanation. The issue was not raised by the evidence. In Young v. State, supra, it was held that the charge on the right to bear arms in seeking an amicable adjustment or explanation must be given if a charge on provoking the difficulty had been given as a limitation on the charge on self-defense “if such instruction is supported by the evidence.”
Appellant’s first ground of error should be overruled on the basis of lack of an evidentiary foundation, rather than on es-toppel of appellant because of invited error. I agree with the majority opinion’s rulings on the second and third points of error, and that the judgment should be affirmed.