dissenting.
I respectfully dissent. Because some evidence exists in the record that would permit a jury to rationally find that if Appellant was guilty, he is guilty only of criminally negligent homicide, I would hold that the trial court erred by refusing to submit this lesser included offense to the jury. Accordingly, I would sustain Appellant’s first issue, reverse the trial court’s judgment, and remand this case for a new trial.
I agree with the majority’s recitation of the law concerning the two-pronged test we apply to determine whether a defendant is entitled to an instruction on a lesser included offense and with the majority’s holding that criminally negligent homicide is a lesser included offense of manslaughter. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981). I also agree with the majority’s explanation of the legal distinction between criminally negligent homicide and manslaughter, the culpable mental state required. See Tex. Penal Code Ann. § 19.04(a) (Vernon 2003) (defining manslaughter as recklessly causing the death of another), § 19.05(a) (defining criminally negligent homicide as causing the death of another by criminal negligence); Stadt v. State, 182 S.W.3d 360, 363-64 (Tex.Crim.App.2005). I cannot agree, however, with the majority that no evidence exists in the record that would permit a jury to rationally find that if Appellant is guilty, he is guilty only of the lesser offense.
The record contains the following testimony, in addition to the testimony recited by the majority. Drilling rigs are inherently dangerous. They are dangerous even when everyone is doing exactly what they are supposed to be doing. The State’s expert, Mr. J.C. Bud Wells, testified that he had over forty-five years of experience in the drilling industry in various capacities. When asked whether it was common or uncommon for the cat line to get “fouled up,” Mr. Wells testified that “it is not an everyday occurrence” and that in his forty-five years of experience working rigs, he has known about a half-dozen people who have been injured by the cat line.
Mr. Wells testified that initiations and horseplay are common on rigs and that the participants are “not intending to hurt anybody.” Mr. Wells was asked what types of things would occur if a “new guy” was being initiated. He responded,
Well, there’s a number of things: You know, taking a dope brush and doping them up; blindfolding them, letting them take a sledgehammer to hit an X and stick their hard hat under it where they hit their hardhat with a sledgehammer; letting them walk a plank on the pit or something and move the plank out of the way and let them fall in the pit.
Mr. Wells described “doping” as taking the worker’s “britches down and dope them between their legs with pipe dope.” Appellant likewise testified that it was common practice for new work hands to be initiated on a rig. Appellant had initiated new workers by “greasing their boots,” “throwing them in the pits,” and “putting them on the cat line.” In fact, these initiations and “pranks” had likewise been done to Appellant “many times” during his twenty-five years of working on rigs, and he was never injured, except for minor “bumps and bruises.” Appellant also testified that he had been “picked up a bunch of times” by the cat line “to work on things” on the rig.
Concerning the incident at issue, Appellant testified that he never took his hand off of the eat line; he hooked it on the *837derrick belt and attempted to immediately unhook it. Additionally, Appellant who was in the top doghouse did not have the same vantage point as Clay who was on his way up the stairs to the doghouse when Clay saw that the eat line was wrapping around the kelly.
Finally, Appellant possessed only a sixth-grade education. He cannot read or write, except to mark his name.
Keeping in mind that this court cannot consider whether the above evidence is credible, controverted, or in conflict with other evidence, the evidence recited above refutes the intent element required for the offense of manslaughter, that is recklessness. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex.Crim.App.1996). A person acts recklessly with respect to circumstances surrounding 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.
Tex. Penal Code Ann. § 6.03(c) (Vernon 2003)(emphasis added).
Testimony exists that Appellant himself had been hoisted on the cat line “a bunch of times” with only minor bumps and bruises, thus showing that from Appellant’s standpoint, the risk of hooking the cat line to Shawn for a couple of seconds did not constitute a substantial and unjustifiable risk that was a gross deviation from the standard of care that an ordinary rig worker would exercise. Likewise, Mr. Wells’s testimony — that in forty-five years he was aware of approximately six injuries from the cat line — is evidence that Appellant’s perceived risk from hooking the cat line to Shawn’s derrick belt for a few seconds was not so substantial and unjustifiable that its disregard would constitute a gross deviation from the standard of care that an ordinary rig worker would exercise. The admittedly pervasive practice on rigs of horseplay and of initiating new workers with physical pranks also refutes the requirement for “recklessness” that viewed from Appellant’s standpoint, by performing the initiation prank here, he consciously disregarded a substantial and unjustifiable risk of Shawn’s death. The sheer frequency of these “pranks” lessens risk perception from Appellant’s standpoint. Moreover, the evidence showed that on the day in question, Appellant was not aware that while he was in the top doghouse the cat line was wrapping around the kelly. Finally, Appellant possessed a sixth-grade education, had no training beyond sixth grade, and had worked on rigs since he was eighteen. Appellant was steeped in the life and culture of working on a rig that was dangerous even when everyone was doing his job. Viewed from Appellant’s standpoint, not the standpoint of the judges on this court, the above constitutes some evidence that by hooking the cat line to Shawn’s derrick belt, Appellant did not consciously disregard a substantial and unjustifiable risk, but instead only should have been aware of the risk surrounding his conduct but failed to perceive it. See Stadt, 182 S.W.3d at 364 (holding defendant entitled to instruction on lesser included offense of criminally negligent homicide).
In my view, the majority focuses on evidence of Appellant’s knowledge of the dangerousness of cat lines in general, instead of determining whether evidence exists that Appellant was not, but should have been, aware of the risk of his conduct, viewed from his standpoint, in clipping the cat line on Shawn’s derrick belt for a few *838seconds. See Tex. Penal Code Ann. § 6.03(d). I cannot agree that Appellant’s general knowledge that cat lines are dangerous equates to a specific knowledge by Appellant that by performing the initiation act of clipping the cat line to Shawn’s derrick belt for a few seconds he was consciously disregarding a substantial and unjustifiable risk that the cat line was or would become “fouled up” or that Shawn would be injured or killed. See id.
For the reasons set forth above, I dissent.