concurring and dissenting.
A defendant is entitled to a jury instruction on a lesser offense if and only if: (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) some evidence exists in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 865 S.W.2d 666, 673 (Tex.Crim.App. 1993), cert, denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). I agree with the majority that voluntary manslaughter and murder are lesser included offenses of capital murder. Nevertheless, I disagree with the majority’s conclusion that some evidence exists to show that appellant, if guilty, is guilty only of voluntary manslaughter.1
At the time appellant committed the offense for which he was convicted, voluntary manslaughter contained all of the elements of murder plus the additional element that the death was caused “under the immediate influence of sudden passion arising from an adequate cause.” Texas Penal Code § 19.04(a)(1994). “Sudden passion” is defined as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” § 19.04(b)(emphasis added). “Adequate cause” is defined as “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” § 19.04(c)(emphasis added). Thus, the distinguishing element in voluntary manslaughter consists of two parts: (1) sudden passion, and (2) adequate cause. Sudden passion is subjective — the defendant actually experiences passion at the time of the offense— while adequate cause is objective — a person of ordinary temper would experience the requisite degree of passion. To satisfy the “guilty only” prong of Rousseau, the record must contain evidence as to both parts. But the majority’s holding collapses these two parts into one: under the majority opinion, the record need contain only evidence of adequate cause and this Court will automatically hold such evidence sufficient to infer sudden passion. This holding directly conflicts with Ojeda v. State, 712 S.W.2d 742, 744 (Tex.Crim.App.1986), which the majority overrules. The majority’s holding also conflicts with our approval of Ojeda in Marras v. State, 741 S.W.2d 395, 405 (Tex.Crim.App. 1987), overruled on other grounds by, Garrett v. State, 851 S.W.2d 853, 860 (Tex.Crim. App.1993) and with our pronouncement in Gonzales v. State, 717 S.W.2d 355, 357 (Tex.Crim.App.l986)(plurality opinion) that we will not infer material evidence into the record on whether a defendant actually experienced sudden passion. And, our holdings in these cases have been followed in a number of court of appeals cases. See Willis v. State, 936 S.W.2d 302, 309 (Tex.App. — Tyler 1996, pet. refd); Corral v. State, 900 S.W.2d 914, 919 (Tex.App. — El Paso 1995); Carrillo v. State, 889 S.W.2d 501, 504 (Tex.App.— Houston [14th Dist.] 1994); Flores v. State, 866 S.W.2d 682, 684 (Tex.App. — Houston [1st Dist.1993). The majority believes that it must overrule established caselaw because that caselaw fails to take into account the general legal maxim that an element of an offense may be proved by circumstantial evidence. I believe that the majority is mistaken.
Contrary to the majority’s pronouncement, Ojeda does not exclude the use of circumstantial evidence to prove sudden passion. We explained that sudden passion “is a subjective concept, although sometimes out*15wardly manifested.” 712 S.W.2d at 744 (emphasis added). We did not exclude the possibility of proving sudden passion through circumstantial evidence, and in fact, we admitted such a possibility when we stated that sudden passion could be “outwardly manifested.” Sudden passion can, of course, be raised by direct evidence, i.e. testimony by the defendant or another witness2 as to the defendant’s mental state. But, consistent with Ojeda, sudden passion can also be inferred from the conduct and appearance of the defendant. Some examples could be: running, striking inanimate objects without any apparent rational purpose, shouting, screaming, crying, and facial expressions.3 But, there must be some evidence from some source that will “demonstrate that the actor is in the throes of actual, subjective passion.” Carrillo, 889 S.W.2d at 503 (emphasis added). Evidence of adequate cause does not automatically raise the issue of sudden passion: “There could be evidence of a cause which could produce anger, rage, resentment, or terror adequate to make an ordinary person incapable of cool reflection, but no evidence that the accused acted in an excited and agitated state of mind at the time of the killing.” Merchant v. State, 810 S.W.2d 305, 309-310 (Tex.App. — Dallas 1991)(diseussing different permutations of evidence in which voluntary manslaughter is not raised).
Automatically inferring sudden passion from evidence of adequate cause is misguided because each concept has a different focus. Sudden passion focuses on the defendant’s conduct while adequate cause focuses on thé conduct of the victim and/or third parties. The majority is correct that mental culpability has generally been inferred from circumstances. But the circumstances in question are those that involve the defendant’s own conduct rather than the actions of others.4 Numerous times we have stated that intent may be inferred from the conduct of the defendant. Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.l995)(intent to steal); Robertson v. State, 871 S.W.2d 701, 705-706 (Tex.Crim.App.1993), cert, denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994)(same); Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App.1991), cert, denied, 504 U.S. 974, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992)(intent to kill). Even in cases that have not so clearly stated that proposition, the circumstances used to infer mental culpability have been the defendant’s own conduct. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996), cert, denied, — U.S. ——, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997)(intent to kill inferable from use of deadly weapon); Butler v. State, 769 S.W.2d 234, 240 (Tex.Crim.App.1989), overruled on other grounds by, Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991) (intent to steal inferable from the fact that defendant entered a cab with a loaded .38 revolver only two blocks from his residence, executed the cab driver, and reached the front seat and ransacked the pocket of the decedent); Lewis v. State, 715 S.W.2d 655, 657 (Tex.Crim.App.l986)(burglary with intent to commit theft inferable from the fact that defendant was seen in the yard of another person’s house, ducked behind bushes when a car passed, hid under clothes in a portable closet, and moved a ladder to a tall closet); Ranson v. State, 707 S.W.2d 96, 97 (Tex.Crim.App.1986), cert, denied, 479 U.S. 840, 107 S.Ct. 147, 93 L.Ed.2d 88 (1986)(in-tent to gratify sexual desire inferable from *16defendant’s act of placing his mouth on genitals and breasts of complainant, inserting his finger in her vagina, and having her place her mouth on his genitals); Morgan v. State, 692 S.W.2d 877, 880-881 (Tex.Crim.App.l985)(intent to gratify sexual desire inferable from repetition of ambiguous sexual behavior).5
In the present case, there is no evidence, direct or circumstantial, that the defendant actually experienced sudden passion. There is evidence that a reasonable person might, under the circumstances presented, experience sudden passion, but such evidence merely establishes adequate cause. That is not enough, in my view, to establish sudden passion. The trial court properly denied appellant’s requested instruction on voluntary manslaughter.
Therefore, I concur in the majority’s disposition of point of error eight, and I dissent to the majority’s disposition of point of error seven.
MEYERS, J., joins.. I also have doubts about the majority’s holding concerning the lesser offense of murder. I agree with the majority’s contention that the lesser included offense of murder is raised if the issue of self-defense is raised because appellant could be guilty of murdering one of the alleged victims but have a valid self-defense claim as to the other. After reviewing the record, I am uncertain that the following issues were raised by the evidence: (1) that appellant actually believed that his life was in danger at the time of the shooting, and (2) that a reasonable person in appellant’s position would not have retreated. Evidence as to both of those issues would be essential to raising a self-defense claim. See Texas Penal Code § 9.32(a)(2) & (3). Resolution of those issues appears to be a close call, and largely fact-bound. Because this is a dissenting opinion, I will assume that the majority is correct in its assessment.
. For an analysis concerning the admissibility of lay opinion testimony concerning a defendant’s mental state, see Fairow v. State, 943 S.W.2d 895 (Tex.Crim.App. 1997).
. I do not mean to set out an exclusive list. Nor do I express any opinion about what combination of circumstances would be sufficient to raise sudden passion.
. The majority understates the effect of its holding when it says that evidence of adequate cause "can” also constitute evidence of sudden passion. Under the majority’s opinion, evidence of adequate cause will automatically constitute evidence of sudden passion in every case. The majority reasons that voluntary manslaughter was raised in this case because “the jury could have rationally found that such events would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection" (slip op. at 14)(emphasis added) That, of course, is the definition of “adequate cause,” and the majority has written sudden passion out of the code for the purpose of submitting a jury instruction.
. Although on some occasions we have recognized what may appear to be other circumstantial justifications, a closer examination of .the circumstance involved shows it to be based upon the defendant’s conduct. In Patrick v. State, in addition to holding that intent could be inferred from the words and conduct of the defendant, we also held that intent could be inferred from the extent of the victim’s injuries and the relative size and strength of the parties. 906 S.W.2d 481, 487 (Tex.Crim.App.1995), cert, denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). The extent of a victim’s injuries is, of course, a reflection of the strength of a defendant’s attack, and therefore, does involve the defendant’s conduct. As for the size and strength of the parties, Patrick cites Lindsey v. State, 501 S.W.2d 647, 648 (Tex.Crim.App.1973), cert, denied, 416 U.S. 944, 94 S.Ct. 1953, 40 L.Ed.2d 296 (1974), which in turn cites Encina v. State, 471 S.W.2d 384 (Tex.Crim.App.1971). En-cina involved an adult attacking a two-year-old child. Id. at 387. We inferred an intent to kill from the defendant's conduct in assaulting such a helpless individual. Id.