Johnson v. State

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury, after answering affirmatively special issues one and two pursuant to Art. 37.071, Vernon’s Ann.C. C.P., assessed punishment at death. The sufficiency of the evidence is not challenged.

By his third ground of error, appellant contends that the trial court committed fundamental error by failing to submit the issue of provocation on the part of the deceased pursuant to the mandatory provisions of Art. 37.071(b)(3), supra. Art. 37.-071(b)(3) provides:

“(b) On conclusion of the presentation of the evidence,…