dissenting.
I respectfully dissent. Appellant was indicted for voluntary manslaughter. The jury charge in this case included these lesser included offenses: involuntary manslaughter and criminally negligent homicide. Therefore, the jury had before it instructions for their consideration on the culpable mental states of intentional or knowing, recklessness, and criminal negligence. See TEX.PENAL CODE ANN. § 6.03 (Vernon 1974). For appeal purposes the culpable mental state of criminal negligence is not before the court.
The evidence, briefly summarized, shows that the Mi Cachito Bar was located next door to a grocery, which sat back from the bar. Appellant parked his truck at the grocery, which meant his truck could not be seen from the door of the bar. Although the distances described in testimony were not clearly stated, the truck was somewhere around thirty feet from the door, around the corner and not in sight. Inside the truck were his rifle and also his adult son.
It is clear that the deceased began the altercation with verbal abuse. The owner asked both men to leave to avoid a fight inside the bar. Once outside, the deceased struck appellant, causing him to fall. There is no dispute that the deceased did not have a weapon of any kind. The owner testified he saw appellant get up and walk in the direction of the store. He was gone several minutes. The owner refused to let the deceased reenter the bar because appellant might return. The deceased stood by the bar door. The owner warned the deceased when he saw appellant walking toward the deceased with a rifle. He was not seen to raise the rifle to his shoulder. After appellant was closer to the deceased, he fired the rifle, striking the deceased in the chest. The owner, who had moved away from the line of fire, testified that he *593returned to the door and “at this time I saw — what I saw was Lupe laying down to his side, and at this time I saw Benito making a motion as if he was striking [him] with the butt of the rifle.”
Another witness, a passerby, testified that he and his wife were on their way to the grocery next door and saw the two men fighting. He saw appellant go to his truck. There “he pulled out a rifle and loaded it .. and then he goes around his truck and goes to that other man who was still standing there, and he fired a shot at him.” On cross-examination he said he did not see appellant put the bullet in but saw him “cock the rifle,” stating, “he probably did load it.” He testified that after appellant shot the man, “[t]hen he hit him twice ... I don’t know where at, but he swung his gun over him.” He described the blows as “hammering.” He said appellant was “close” when he fired the rifle. The bar owner testified that “another male individual ... came over and handed Mr. Gonzalez what appeared to me another round for the rifle because Mr. Gonzalez loaded another rifle again.”
The bar owner, who was also a policeman, testified that after appellant shot the deceased, appellant said to the deceased, “I told you not to fuck with me.” Appellant left the scene after the shooting. Intent may be inferred from the acts, words and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App.1982). (Citations omitted).
Appellant’s statement that he had no intent to kill the deceased must be considered in the context of the facts to determine whether it supports a charge on the lesser included offense of aggravated assault. The specific intent to kill may be inferred from the use of a deadly weapon. Flannagan v. State, 675 S.W.2d 734, 744 (Tex. Crim.App.1982). A firearm, as alleged in the present indictment, is a deadly weapon. TEX.PENAL CODE ANN. § 1.07(11) (Vernon 1974). The rifle used in this case is a firearm, a deadly weapon.
The two step analysis for determining whether a charge on a lesser included offense should be given requires first, that the lesser included offense be included within the proof necessary to establish the offense charged; and second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442 (opinion on rehearing) (Tex. Crim.App.1981). See, TEX.CODE CRIM. PROC.ANN. art. 37.09 (Vernon 1981). The elements of aggravated assault applicable to the instant case are (1) a person (2) intentionally, knowingly or recklessly (3) commits an assault (4) using a deadly weapon. See, Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986).
It was stated in Godsey at 581, if a deadly weapon is used in a deadly manner, the inference is almost conclusive that [the accused] intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the evidence must be established by other facts, quoting from Hatton v. State, 31 Tex.Crim. 586, 21 S.W. 679 (1893). It was emphasized this is still the law. Godsey at 581. In the present case there is this permissible inference supplied by use of a deadly weapon in a deadly manner.
It is plain under Royster that aggravated assault may, in some instances, be a lesser included offense of homicide. This is not one of those instances. To warrant submission of the jury charge on aggravated assault in this case, there must be shown a lack of intent to kill. I would hold that in the context of the offense, appellant’s actions are sufficient to show that he had the specific intent to kill. Moreover, no evidence supports lack of intent to kill. In addition, there is no evidence which satisfies the second step of Royster: that if appellant is guilty he is guilty only of aggravated assault. The gist of the requested charge on aggravated assault was lack of intent to kill. The evidence did not raise the issue of lack of intent to kill so that the jury was required to be instructed on the lesser included offense of aggravated assault. See, e.g., Matheson v. State, 508 S.W.2d 77, 80 (Tex.Crim.App.1974).
Moreover, in this case the jury was instructed on involuntary manslaughter and *594on the definition of recklessness as a mental state. They failed to find that appellant acted recklessly. There was no evidence to show appellant acted recklessly. Recklessness as a culpable mental state was submitted in the requested charge on aggravated assault. See, § 6.03(c). The charge on aggravated assault was correctly denied. The point should be overruled.
The second point concerns a request for a much broader and more favorable jury charge on self-defense than the one given. It was a request for a jury charge on the defense of oneself when deadly force is used or when one believes deadly force is going to be used. TEX.PENAL CODE ANN. § 9.32(1), (2), (3)(A) (Vernon Supp. 1987). The record discloses no evidence which raises the issue that deadly force was being used against appellant or that he reasonably believed deadly force was about to be used. In fact, he testified that he shot the gun in an effort to scare the deceased. This statute would not then be applicable.
The requested jury charge was not appropriate or correct under the facts of this case. The act of submitting a requested jury charge does not, of itself, create trial error when the court refuses to submit it. The evidence, whether from the State or appellant, must support the requested charge. Here there was simply no evidence that the deceased used or was about to use unlawful deadly force, or that appellant even thought at any time this would happen.
A search of the record fails to show the trial court ever ruled on the request. The majority correctly notes we may review the point anyway since the matter was called to the court’s attention. I would disagree with the holding, however, that the trial court should have submitted the requested jury charge. The trial court was correct in not submitting that requested charge.
For the foregoing reasons, I respectfully dissent.