dissenting.
I respectfully dissent from the opinion of the majority that the trial court erred in refusing to submit jury questions on the lesser included offenses of involuntary manslaughter and criminally negligent homicide. More specifically, I disagree that evidence existed in the record concerning the mental state of appellant that would permit a jury to rationally find that if he was guilty, he was guilty of only those lesser offenses. Rousseau, 855 S.W.2d at 673.1
To commit murder under Sections 19.02(a)(1) and 6.03(b) of the Penal Code, a defendant must at least know that his conduct is reasonably certain to cause death. To commit involuntary manslaughter under Sections 19.05(a) and 6.03(c) of the Penal Code, a defendant must know that his conduct poses a substantial risk of causing death. To commit criminally negligent homicide under Sections 19.07(a) and 6.03(d) of the Penal Code, a defendant must fail to perceive the risk created by his conduct. Dowden, 758 S.W.2d at 270.
Implicit in the definitions of involuntary manslaughter and criminally negligent homicide is that the defendant not know that death was reasonably certain to result from his conduct; otherwise he would be guilty of murder. See Burnett v. State, 865 S.W.2d 223, 228-229 (Tex.App. — San Antonio 1993, pet. ref d). Therefore, in order for a defendant to be entitled to a jury charge on the lesser offenses, the record must contain some evidence that the defendant did not know that death was reasonably certain to result from his conduct. Id.
In this case, the record reflects that appellant brought a loaded gun to the gathering, and was firing it before the altercation with Thomas. There was no evidence that appellant was unaware that the gun was loaded or of it’s potential for deadly injury. Thus, there was no evidence that he failed to perceive the risk created by shooting the gun, as necessary to support a jury question on criminally negligent homicide. See, e.g., Thomas v. State, 699 S.W.2d 845, 850-51 (Tex.Crim.App.1985) (and cases cited therein).
Moreover, appellant admitted in his written statement that he deliberately shot at Thomas immediately before the scuffle in which Thomas was fatally wounded. There is no indication that this was a warning shot or otherwise intended not to hit Thomas.
The only inference which can reasonably be drawn from these facts is that appellant knew that death was reasonably certain to result from his shooting at Thomas. Moreover, there is no basis to conclude that, once the struggle for the gun then began, appellant became less aware of this fact.
Appellant’s statements were to the effect that the gun went off unintentionally during his struggle with Thomas, and that he did not mean to shoot Thomas. However, these statements cannot be plucked from the record and examined in a vacuum, but must be viewed in the context of the remaining facts. See Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986). In that appellant admitted that he had just tried to shoot Thomas immediately before the struggle began, these statements do not permit a jury to rationally find that appellant did not know that Thomas’ death was reasonably certain to result from his conduct.2 Accordingly, I would affirm the judgment of the trial court.
. Importantly, the Rousseau test does not merely require some evidence, but some evidence that would permit a jury to rationally find the defendant guilty of only the lesser offense (and not the higher offense). 855 S.W.2d at 673. It was specifically with respect to this distinction that Rousseau modified the second prong of the test previously set forth in Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981).
. Moreover, in order to find harm from failing to include a charge on the lesser offenses, it must be assumed that the jury might have convicted *108on a lesser offense if so charged. However, that assumption could only be true to the extent that the juty disregarded the court’s instruction to acquit appellant unless they found him guilty of murder beyond a reasonable doubt. I do not believe a finding of harm can validly be based on an unsupported assumption that the jury disobeyed the court’s instructions.