dissenting.
Appellant was convicted of robbery. At trial, he denied having intent to steal. He denied that he was outside the store when apprehended. He denied walking past the cash registers and leaving the store with stolen property. He denied being the aggressor in an altercation involving himself and store security personnel. He denied assaulting anyone. He denied hitting or biting or hurting any store security personnel. He testified he did not do anything wrong. The majority says appellant was entitled to an instruction on the lesser included offenses of theft and assault. I dissent.
A lesser included offense charge is required, upon request, if the following two conditions are met:
1. The lesser offense is included within the proof necessary to prove the charged offense; and
2. Some evidence exists in the record that would permit a jury rationally to find that, if guilty, the defendant is guilty only of the lesser included offense charge.
Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993). .Only the second condition is disputed in this case.
As to the lesser included offense of theft, the majority says appellant’s testimony that he did not commit assault, but acted in self-defense, was evidence that would permit a rational jury to find appellant guilty only of theft. As to the lesser included offense of assault, the majority says appellant’s testimony that he did not intend to steal anything, together with testimony by store employees that appellant committed assault, was evidence that would permit a rational jury to find appellant guilty only of assault. They are wrong on both counts.
A. The lesser included offense of theft
Integral with a claim of self-defense is an admission of the use of some force.1 Appellant denied using force against anyone. Appellant also testified his arms were held behind his back. He further stated he had no idea how some of the employees received their injuries. Following are portions of appellant’s testimony..
Q: [State on direct examination]: Did you hit Ms. Yancey?
A: [Appellant]: No ma'am, I didn’t.
Q: Did you see any scratches on her face?
A: No, ma'am.
*259[[Image here]]
A: My arm was behind my back and they jacked it up. Two other guys in the store ran up and started hitting me.
Q: How many employees ganged up on you at that time?
A: Four.
Q: Did you feel threatened?
A: Yes, ma'am.
Q: Did you intend to steal any items?
A: No, ma'am, I didn’t.
Q: Did you commit an assault in the store?
A: No, I didn’t.
Q: Did you feel like you were acting in self-defense?
A: Yes, I did.
Q: Did you feel like you had committed a robbery?
A: No, ma'am, I didn’t.
[[Image here]]
Q: [Appellant’s counsel on cross-examination]: ... it’s your testimony that you basically didn’t do anything wrong back on February 24th, correct?
A: Absolutely right, sir.
Q: ... You heard Ms. Yancey testify about what happened, didn’t you?
A: Yancey tells some lies. Yes, she did.
Q: ... You never walked past the checkout areas?
A: I never walked by the checkout areas.
Q: And in the course of this there was an altercation at least between you and those employees who worked there?
A: There was an altercation.
Q: And these employees all ganged up on you?
A: Yes, and I did self-defense.
Q: And you realize that one of those employees hurt their arm?
A: How he hurt his arm, I didn’t have no idea.
Q: And you heard what Ms. Yancey said happened to her?
A: Yes. She had broken glasses.
Q: You didn’t strike her with your fist?
A: I had my arms behind my back.
Appellant did not elaborate further on his claim of “self defense.” Appellant’s claim that he “did self-defense,” is logically impossible in view of his testimony that his arms were held behind his back. The majority’s vision of a rational jury is one that would have to disbelieve appellant’s testimony that he did not use force against anyone and disbelieve appellant’s testimony that he had his arms held behind his back, but believe appellant’s testimony that he “did self-defense” even though there was no other evidence supporting this claim and believe appellant’s “self-defense” was legally adequate to justify any assault proven by the State. This is not my view of a rational jury.
B. The lesser included offense of assault
Appellant testified he did not intend to steal anything. He claims that at the time he was apprehended, he was still inside the store. He testified he did not do anything wrong, he did not commit an offense. There is otherwise no evidence that appellant did not commit theft. In these circumstances, a charge on the lesser included offense of assault is not warranted:
The correct test, as stated in Aguilar v. State, 682 S.W.2d 566 (Tex.Crim.App.1985), is as follows: “If a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing that he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required.”
Bignall v. State, 887 S.W.2d 21, 24 (Tex.Crim.App.1994). Apart from appellant’s testimony that he did not commit theft, there is otherwise no evidence showing that appellant is guilty only of assault. The majority does not explain why the above rule of law does not apply here.
While I recognize the value in maintaining a policy in favor of liberally including lesser included offense instructions, such instruction was not warranted here by any stretch. The trial court acted appropriately in denying the instructions. The judgment of the *260Court of Appeals should be reversed. I dissent.
McCORMICK, P.J., MANSFIELD and KELLER, JJ., join.
. Self-defense is described in the Penal Code as: "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.” Tex. Penal Code § 9.31 (a). Appellant does not claim to have used force against anyone.