dissenting.
I dissent to the majority’s holding that it was harmless error not to submit to the jury the lesser included offense of criminally negligent homicide.
I.
In order to reach its conclusion, the majority was compelled to distinguish a line of *575cases that indicate otherwise. I am not satisfied that the majority has convincingly distinguished those cases, and I find them controlling of the issue presented.
In Moreno v. State, 702 S.W.2d 636, 640 (Tex.Crim.App.1986), a burglary of a habitation case, we held that the trial court erred in failing to instruct the jury on the lesser included offense of criminal trespass. Addressing whether there was some harm under Almanza as a result of the error, we said:
Here, the appellant timely objected and as well filed a special requested charge on criminal trespass, which means there was some harm from the error. It might well be argued that the jury charge as given amply protected appellant’s rights, but the issue of intent to commit a felony or theft was for the jury. In a burglary prosecution the specific intent to steal or commit theft may be inferred from the circumstances, [citations omitted] but the lack of intent may also be inferred from the circumstances. The jury is empowered to determine the issue of intent, [citations omitted] The issue is not whether appellant’s is true or even believable. That issue is exclusively for the jury as the trier of the facts.
We conclude that the error was harmful under the circumstances applying the test of Almanza.
Id. at 641. In Gibson v. State, 726 S.W.2d 129 (Tex.Crim.App.1987), we held the trial court erred in refusing the defendant’s requested instruction on the lesser included offense of involuntary manslaughter. We assessed the harm issue under Almanza:
In the instant case the error was properly preserved by appellant’s timely requested jury instruction. Therefore, any harm resulting to appellant will require a reversal. There is evidence in the case raising the lesser included offense of involuntary manslaughter and the jury should have been afforded the opportunity to decide whether the offense committed by appellant constituted involuntary manslaughter, a third degree felony, rather than murder, a first degree felony. Because the jury was not given this opportunity we cannot say that no harm resulted to appellant.
Id. at 133. Likewise, in Hayes v. State, 728 S.W.2d 804 (Tex.Crim.App.1987), we held the trial court erred in failing to instruct the jury on a lesser included offense. Applying virtually the same rationale articulated in Gibson, the Court again concluded there was some harm:
... it has been made clear that the evidence presented at least raised the lesser included offense of reckless conduct. The jury should have been afforded the opportunity to decide whether the offense committed by appellant constituted reckless conduct, a Class B misdemeanor, rather than aggravated assault, a third degree felony. Because the jury was not given this opportunity we cannot say that no harm resulted to appellant.
Id. at 810. Consistently, in Mitchell v. State, 807 S.W.2d 740 (Tex.Crim.App.1991), where we held the trial court erred in failing to charge on a lesser included offense, we again concluded that there was some harm:
The appellant was clearly harmed in this case because the jury was not allowed to consider the lesser included offense of criminal trespass in conjunction with the charge of burglary of a habitation.
Id. at 742.
In all of these cases the Court held that the fact that the jury was not given the opportunity to consider whether the defendant was guilty of the lesser included offense rather than the greater offense supplied some harm. The majority distinguishes these cases by assuming that their underlying rationale was that of the Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, the Supreme Court held that a capital murder defendant was entitled to a charge on the lesser included offense of felony murder. The Court reasoned that when the evidence establishes that the defendant is guilty of same offense, but is questionable as to an element of the capital offense, failure to give the jury the option of convicting the defendant of a lesser included offense “enhance[s] the risk of an unwarranted conviction” for the capital offense. Beck, 447 U.S. at 637, *576100 S.Ct. at 2389. Faced only with the options of either convicting of capital murder or acquitting altogether the jury might opt to convict even if they have some doubt as to an element. By imparting the Beck rationale to the Moreno cases, the majority reasons that in the instant case the Beck risk is not so apparent since the jury was provided at least one lesser included offense as an alternative to conviction of murder. Majority op. at 572.
The problem with imparting the Beck rationale to the Moreno line of cases is that those cases do not espouse the Beck rationale, give any indication that they are relying upon Beck, or even cite to Beck. They simply recognize that the jury should be given the opportunity to consider the lesser included offense and the failure to provide that opportunity, when raised by the evidence, amounts to some harm. Under the Moreno eases, since there is no way of knowing how a jury would view any given issue in the context of the other issues, the fact that the jury was precluded from considering an issue amounts to some harm.1 The inclusion of another lesser included offense does not affect that reasoning.2
II.
I also dissent to the majority’s opinion because it utilizes a new standard for evaluating some harm under Almanza without adequately identifying its source or explaining how its application differs from the evalu*577ation of egregious harm under Almanza. The majority frames the issue of harm in the following terms:
Does the record in the instant cause admit of a “realistic probability” that the jury’s decision was reduced to whether appellant intended to cause serious bodily injury or simply did not perceive the obvious risk his conduct was creating?
Majority op. at 573. The majority concludes that this was not a “realistic probability” in light of the evidence.
The majority cites Black v. State, 723 S.W.2d 674, 675 n. 2 (Tex.Crim.App.1986), as support for application of the “realistic probability” test. In Black, where the trial court erred in failing to instruct on the law of parties, we remanded the case to the Court of Appeals to consider whether the error was harmless in light of Govan v. State, 682 S.W.2d 567 (Tex.Crim.App.1985). Id. at 676. Govan held that the failure to charge on the law of parties may be harmless if the evidence is clearly sufficient to support the defendant’s guilt as a principal. Judge Teague dissented and advocated overruling Govan, arguing among other things that the jury could have rejected the evidence of the defendant’s guilt as a party. The Court responded to Judge Teague’s dissent in a footnote, criticizing it for applying “theoretical generalities to all cases rather than realistic probabilities to particular cases.” Id. at 675 n. 2.3 I have found no other case utilizing, discussing, or even mentioning the “realistic probabilities” test. This is not to say that such a test might not be appropriate or helpful in conducting a harm analysis under Almanza. However, the majority does not provide much insight into how this test applies within the scope of Almanza. It does not appear to me that the Court’s application of the “realistic probability” test for determining some harm differs in any decipherable way from the analysis that would apply in assessing egregious harm.
For these reasons, I dissent.
BAIRD and OVERSTREET, JJ., join.. Appellant ably argues that the absence of the instruction on the lesser offense necessarily changed the perspective with which the jury viewed the offense:
... the absence of criminally negligent homicide was emphasized in argument and was made a factor in their consideration of the greater offense. The prosecutor had informed jurors during voir dire of the full range of homicide crimes, including the fact that criminally negligent homicide was a misdemeanor with a maximum punishment of a year in the county jail and a fine. She told them even "a shred” of evidence would require submission of the offense as a lesser included offense in the charge. Necessarily, then, the absence of that offense from the charge told the jurors the case had proven to be more serious than it might have been. They actually began deliberations with a perspective that was more prejudicial to Appellant than the view they would have had if criminal negligent homicide had been included in the charge. Why else, of course, would the prosecutor remind them in closing argument that they had discussed the possibility of lesser offenses which were "less serious than murder” and that "(t)he offense of negligent homicide which we discussed does not appear in the charge. It was not raised by the evidence." ...
If a jury is given three possibilities from which to choose, the veiy giving of the charge tells them each possibility was raised by the evidence and tells them they may "legitimately" find the accused guilty of any one of the three. It certainly would have changed the way in which the case was presented in argument. Simply knowing that the evidence warranted a finding that Appellant was guilty only of a misdemeanor would logically have changed the context in which the jurors deliberated his guilt.... the very exclusion of the misdemeanor charge from their instructions made it less likely that the jury would feel mercy was justified; indeed, it was virtually a message to them from the judge, delivered by the prosecutor, that the evidence did not allow a conviction for a misdemeanor offense, when actually the evidence would have supported a finding that although an ordinary person would have perceived the risk of death, Appellant failed to perceive that risk.
. The majority defends its conferring of the Beck rationale to the Moreno cases by asserting that if the Moreno cases are not grounded in Beck, then "they have no grounding at all.” Majority op. at 571 n. 3. To the contrary, the Moreno cases expressly state their grounding, as is reflected in the portions of the opinions quoted above in this opinion. These cases explain that the fact the lesser included offense was an issue for the juiy to decide and the jury was precluded from so considering it amounts to some harm. Moreno, supra; Gibson, supra; Hayes, supra; Mitchell, supra (discussed at 575-576 infra). If Beck were in some way a part of this rationale, surely the Court would have found it appropriate to at least cite Beck, particularly if without Beck, its holding would be groundless.
Further, the Court implies that its imparting of the Beck rationale to the Moreno cases is somehow obligatory because "it is appellant himself who invites us to explain the holding of Moreno et al in light of Beck." A review of appellant’s brief uncovers no invitation to so "explain” those holdings in light of Beck. Rather, appellant is confident of the rationale of the Moreno cases and simply construes Beck as consistent therewith. Appellant reconciles Beck with the Moreno cases by explaining:
... although in theory the jury will choose rationally among its options, there is a 'substantial risk’ that it will not, so that the defendant must be able to provide the jury with every option it should have, under the evidence of the case.
. The Court further responded to Judge Teague’s criticism and explained that its approach was practical rather than theoretical:
Judge Teague responds that the jury could have rejected whatever evidence might have shown appellant to be guilty as a principal. That argument might be persuasive if the record indicated that the jury had some basis for rejecting the evidence of the appellant’s guilt as a principal, i.e., if the State argued that appellant was guilty as a party or if there was conflicting evidence of appellant’s guilt as a principal. However, if there was no rational basis for the jury to reject the evidence of the defendant’s guilt as a principal, why should this Court presume the the [sic] jury acted irrationally and unnecessarily relied upon the law of parties? Given the emphasis in Alman-za, supra, upon actual rather than theoretical harm, the more practical approach of Govan, supra, properly presumes that the jury acted rationally and accepted the evidence of the defendant’s guilt as a principal, unless the record indicates otherwise.
Black, 723 S.W.2d at 676 n. 2.