Ex Parte Dunaway

I respectfully dissent from one holding and concur in the result on a second. I will briefly discuss each. I concur in all the other holdings in the main opinion.

First, I respectfully dissent from the holding of the Court of Criminal Appeals, affirmed by the majority of this Court, that the trial court did not commit error in refusing the defendant's requested jury instruction on the lesser included offense of felony (arson)-murder in the death of James Patterson. The test for a defendant's entitlement to an instruction submitting a lesser included offense to the jury is stated in Boyd v.…