            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0519-07



                            ANTHONY WASYLINA, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE TWELFTH COURT OF APPEALS
                           ANDERSON COUNTY

       K ELLER, P.J., delivered the opinion of the Court in which P RICE, W OMACK,
J OHNSON, H OLCOMB, and C OCHRAN, JJ., joined. P RICE, J., filed a concurring opinion.
J OHNSON, J., filed a concurring opinion in which C OCHRAN, J., joined. M EYERS, J., filed
a dissenting opinion in which K EASLER, and H ERVEY, JJ., joined.


       The court of appeals held that the evidence was legally insufficient to support appellant’s

conviction for criminally negligent homicide because the evidence showed only that appellant acted

recklessly. We hold that proving the greater culpable mental state of recklessness necessarily proves

the lesser culpable mental state of criminal negligence, and we therefore reverse the judgment of the

court of appeals.
                                                                                     WASYLINA – 2

                                         I. BACKGROUND

       Appellant was indicted for the offense of manslaughter. He pleaded “not guilty,” and the

case was tried to a jury. Over his objection, the trial judge submitted the lesser-included offense of

criminally negligent homicide in the jury charge. The jury convicted appellant of criminally

negligent homicide.

       On appeal, appellant contended that the trial judge erred in submitting the lesser-included

offense of criminally negligent homicide because there was no evidence that he acted with criminal

negligence. The court of appeals agreed, holding that “there is no evidence of record that would

permit a rational jury to find that Appellant is guilty of criminally negligent homicide, but not guilty

of manslaughter.”1 Instead of reversing and remanding the case for a new trial on the basis of jury

charge error, however, the court of appeals rendered a judgment of acquittal.2 Though the court

acknowledged that “the test for giving an instruction on a lesser included offense is different from

the test for legal sufficiency of the evidence to support a conviction,”3 the court of appeals

nevertheless found that the evidence was legally insufficient to show that appellant acted with

criminal negligence because “the record does not reveal any evidence that Appellant failed to

perceive the risk” of death.4

                                           II. ANALYSIS

       In Hampton v. State, we explained that the test for determining whether evidence is legally


       1
           Wasylina v. State, 2007 Tex. App. LEXIS 1705, 8-14 (Tyler, March 7).
       2
           Id. at 21.
       3
           Id. at 18.
       4
           Id. at 20, 20 n.8.
                                                                                    WASYLINA – 3

sufficient and the test for determining whether to submit a lesser-included-offense jury instruction

are “quite different.”5 The evidence could easily be legally sufficient to support a conviction for a

lesser-included offense but not justify the submission of a lesser-included-offense instruction

because the evidence does not show that the defendant is guilty only of the lesser-included offense.6

The Hampton case provides an excellent illustration: The defendant in that case was charged with

aggravated sexual assault, with the aggravating element being the use of a deadly weapon.7 The

defendant was not entitled to an instruction on the lesser-included offense of sexual assault because

all the evidence showed that a deadly weapon was used during the encounter, so the defendant could

not be guilty only of sexual assault.8 But the evidence was legally sufficient to convict him of sexual

assault.9 Indeed, it would have to be, since the State’s proof of an aggravated sexual assault

necessarily included proof of a sexual assault.

       An offense is denominated as “lesser-included” precisely because proof of the lesser offense

is “included” in the offense described in the charging instrument. If the State proves the charged

offense, it necessarily proves all lesser-included offenses. That is why the submission of a lesser-

included offense does not violate the defendant’s constitutional due-process right to notice of the

crime of which he is accused.10


       5
            165 S.W.3d 691, 693 (Tex. Crim. App. 2005).
       6
            Id.
       7
            Hampton v. State, 109 S.W.3d 437, 438 (Tex. Crim. App. 2003).
       8
            Id. at 441.
       9
            Hampton, 165 S.W.3d at 694.
       10
            Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim. App. 1995).
                                                                                   WASYLINA – 4

       The Legislature has specifically designated an offense as “lesser included” if “it differs from

the offense charged only in the respect that a less culpable mental state suffices to establish its

commission.”11 Furthermore, the Legislature has also prescribed that “[p]roof of a higher degree of

culpability than that charged constitutes proof of the culpability charged.”12 Consistent with these

statutes, we have held that criminally negligent homicide is a lesser-included offense of

manslaughter.13    The court of appeals erred in holding that the State failed to prove criminal

negligence because it proved only recklessness.14

       The judgment of the court of appeals is reversed, and the case is remanded for that court to

address appellant’s claim in light of our opinion.

Delivered: January 28, 2009
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       11
        T EX . CODE CRIM . PROC. art. 37.09(3); see also TEX . PENAL CODE §6.02(d)(classifying
culpable mental states from highest to lowest).
       12
         T   EX . PENAL CODE   §6.02(e).
       13
            Saunders v. State, 913 S.W.2d 564 (Tex. Crim. App. 1995).
       14
           We express no opinion on whether the evidence was legally sufficient to show
manslaughter or its constituent culpable mental state of recklessness. We simply hold that the
court of appeals erred in concluding that proof of recklessness (and thus manslaughter) would not
be sufficient to embrace proof of criminal negligence (and thus criminally negligent homicide).
