Phillips v. State

We did not intend in Villa's case, supra, to change the rule adhered to in Scott v. State, 114 Tex.Crim. Rep.,26 S.W.2d 263; Arcos v. State, 120 Tex.Crim. Rep.,29 S.W.2d 395; Johnson v. State, 120 Tex.Crim. Rep.,48 S.W.2d 274; Lopez v. State, 120 Texas Crim Rep., 393,49 S.W.2d 462, but intended to hold it fundamental error for the court below to omit from his charge any instruction under which the jury might have infficted a penalty lower than was allowed under the charge as given — said lower penalty being fixed in a recent law — the proper presentation of which in the charge in an…