then attempt to raise all his defensive theories at the penalty stage.
That pure fact situation is not present in the instant case, nor was it present in White v. State, supra. There the accused’s proffered testimony was that the act of intercourse with the fifteen-year-old prosecu-trix was consented to. That testimony, though not an affirmative defense, would, in fact, have served to mitigate punishment, and would have been properly admissible at the penalty stage. See the recent case of Vasquez v. State, 491 S.W.2d 173 (Tex.Cr.App., 1973). However, the accused’s objection was that the evidence was admissible to prove his character. No such complaint is made here.
In the present case, the appellant’s testimony was, by statutory authority, admissible. Art. 1257a, V.A.P.C. The State concedes that the testimony would have been admissible at the guilt/innocence stage of the trial.3 The only remaining question is whether appellant waived his right to bring forth such testimony by reserving it for the penalty stage.
Appellant was charged with murder with malice. The charge submitted to the jury at the conclusion of the guilt/innocence stage instructed the jury on both murder with and murder without malice. The record is silent as to any objections to that charge.
In the recent case of Foster v. State, 493 S.W.2d 812 (1973), this Court reiterated that in Texas degrees of murder no longer exist. See also Taylor v. State, 491 S.W.2d 922 (Tex.Cr.App.1973). All voluntary killings are murder, and the presence or absence of malice relates only to the punishment. Thus, it would appear proper to submit the issue of malice only during the punishment stage. In the present cause, the jury had already resolved the issue of malice against appellant when they returned their finding of murder with malice after the guilt/innocence stage. Arguably, appellant’s failure to object to the issue of malice being submitted at that stage of the proceedings precludes him from trying to submit the evidence at the penalty stage.
However, we have previously stated that the evidence clearly fell within the ambit of Art. 1257a, V.A.P.C. That statute does not limit itself solely to matters which might negate the issue of malice. It refers to all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide for the jury to consider in determining the punishment to be assessed. See n. 1, supra.
The fact that appellant uniquely chose to wait until the penalty hearing to present this evidence cannot be held against him now. The fact is, a reading of Art. 1257a, V.A.P.C., would probably lead to the conclusion that the penalty stage is the proper stage in which to introduce such testimony.
Each case must necessarily be considered on its own facts in reference to what is admissible under Art. 37.07, subd. 3(a). But in the light of Art. 1257a, V.A.P.C., we conclude that the testimony in this cause should have been admitted. The only remaining issue to be resolved is whether such error can be called harmless. In light of the fact that no defense witnesses were called by appellant at the guilt/innocence stage, and considering the punishment assessed, we decline to so label it.
The judgment is reversed and the cause remanded.
3
Conversely, of course, the State argues its non-admissibility at the penalty phase. AVe recognize that Art. 1257a was enacted prior to the adoption of the new Code of Criminal Procedure. Regardless, we must conclude that Art. 37.07, subd. 3(a), V.A.C.C.P., in no way even attempts to enfeeble or circumscribe Art. 1257a, A'lA. P.C.