dissenting.
The instant case involves a trial for attempted capital murder in which the appellant took the stand and testified that he did not intend to harm the victim of this offense. The majority has decided that this testimony raises the issue of the lesser included offense of aggravated assault, and that the appellant was entitled to an instruction to the jury on that lesser included offense. The majority relies on Godsey v. State, 719 S.W.2d 578 (Tex.Cr.App.1986), and reverses the judgment of the Court of Appeals.
I would hold that the evidence failed to establish that if the appellant was guilty, he was guilty of only the lesser included offense of aggravated assault. I believe the Court of Appeals correctly decided that the trial court’s refusal to grant the appellant’s requested instruction was proper.
A charge on a lesser included offense is required when the evidence meets the two-step test of Royster-Aguilar.1 The first step of the test is that the lesser included offense must be included in the proof necessary to establish the alleged offense.
The second step of the test is that there must be some evidence that, if the appellant is guilty, he is guilty only of the lesser included offense. Royster, supra, at 446. All the evidence presented at trial is considered in order to determine whether an instruction on a lesser included offense should have been given. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Cr.App.1984). Moreover, all testimony must be considered “in the context of the facts.” It is improper to pluck any testimony out of the record and examine it in a vacuum. Godsey, supra, at 584.
However, this is what the majority has done in the instant case. Relying on the isolated facts that appellant failed to repeatedly stab the victim, that he failed to completely abandon her in an open field to die, that he failed to deny her medical treatment, and that the victim had only the appellant available to help her, the majority concludes that “when appellant stabbed Mullin he only intended to injure her and did not intend to cause her death.”
The facts at trial also revealed the appellant’s ruse to kidnap his victim and his continued actions to restrain her freedom and liberty. When he took the stand in his own defense, the appellant admitted to these actions in kidnapping the victim. He only denied any intention to harm the victim. The testimony was as follows:
“Q. Albert [appellant], did you stab Arlene [the victim]?
“A. Yes.
“Q. Did you intend to cause her serious bodily injury when you did stab her?
“A. I didn’t mean to.
“Q. Did you want to hurt her in any way?
“A. No.
“Q. Can you tell the ladies and gentlemen of the jury why you did stab her?
“A. I don’t know why I stabbed her.
* * * * * *
“Q. Did you think Arlene was severely hurt, hurt just a little, what did you think?
“A. I didn’t know she was hurt bad.” Considering all of the evidence at trial, the issue of aggravated assault was not raised.
The elements of aggravated assault applicable to this case are (1) a person (2) intentionally, knowingly, or recklessly (3) commits an assault, which (4) causes serious bodily injury. Rocha v. State, 648 S.W.2d 298, 301 (Tex.Cr.App.1982) (opinion on rehearing); V.T.C.A., Penal Code Sec. 22.02. For a charge on aggravated assault to have been required in this case, there must have been some evidence either that appellant acted with the intent to cause serious bodily injury rather than the intent to cause death or that appellant acted only recklessly.
The Court of Appeals correctly reasoned that the evidence did not show an intent to do the lesser harm of serious bodily injury. Appellant clearly indicated he did not in*364tend to cause serious bodily injury nor even harm her “in any way.” Accordingly, the evidence does not support a charge that appellant committed aggravated assault by intentionally or knowingly causing serious bodily injury.
Appellant’s primary argument before the Court of Appeals and this Court relates to the culpable mental state of recklessness. As indicated above, aggravated assault can be committed recklessly. Section 6.03(c) of the Penal Code provides:
“(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” (emphasis added).
Appellant argues that he was automatically entitled to a charge on aggravated assault (recklessness), because he denied acting intentionally.
The Royster-Aguilar test does not permit such a conclusion. There must be some evidence that appellant is guilty of the lesser included offense. Appellant is not able to point to any evidence that shows a conscious disregard of a risk. There is, for example, no evidence of a scuffle or the victim grabbing at the weapon nor evidence of appellant swinging the knife to keep the victim away. See, e.g., Thomas v. State, 669 S.W.2d 845 (Tex.Cr.App.1985); Mendieta v. State, 706 S.W.2d 651 (Tex.Cr.App.1986). The appellant was not entitled to the requested instruction.
I respectfully dissent.
ONION, P.J., and W.C. DAVIS and McCORMICK, JJ., join this dissent.. Royster v. State, 622 S.W.2d 442, 446 (Tex.Cr. App.1981) (opinion on rehearing); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985).