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Click here for the full text of this decision FACTS: The defendant testified he “blacked out ” and did not remember shooting the victim. The trial court charged the jury on the defensive issues of self-defense and “ accident, ” but it denied the appellant’s request for an instruction on the lesser-included offense of manslaughter. The jury convicted the appellant of murder, and he was sentenced to life in prison. The appellant argued that the trial court erred in failing to charge the jury on the lesser-included offense of manslaughter. The court of appeals, relying on the two-pronged test set forth in Rousseau v. State, 855 S.W.2d 666 (Tex. Cr. App. 1993), and noting that both the appellant and the state agreed that the first prong had been met, addressed the issue of whether “ there is some evidence in the record that would have permitted a jury to rationally find that appellant, if guilty of any offense, was guilty only of manslaughter. ” The court cited several cases that were factually similar to the appellant’s in that they involved an accidental discharge of a firearm, a lack of intent to kill, or a physical struggle between the defendant and the victim, and in which a charge on a lesser-included offense to murder had been required. The court then concluded that in the appellant’s case “ there [was] some evidence that the appellant acted recklessly, and that the jury could have rationally found that appellant, if guilty, was guilty only of manslaughter. ” It also held that the error was harmful. The court reversed the judgment and remanded the case for a new trial. HOLDING: The judgment of the court of appeals is reversed, and the judgment of conviction and sentence are affirmed. Although the court of appeals correctly identified the issue � whether the record shows some evidence that would have allowed a jury to rationally find that the appellant, if guilty of any offense, was guilty only of manslaughter � it was incorrect to hold that there was evidence that the appellant had acted recklessly with respect to causing the victim’s death and, therefore, was entitled to a manslaughter charge. Murder is a “result of conduct” offense, which means that the culpable mental state relates to the result of the conduct, i.e., the causing of the death. Under Code of Criminal Procedure article 37.09(3), voluntary manslaughter is a lesser-included offense of murder. A person commits manslaughter if he recklessly causes the death of another. “A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur.” In this case, the appellant testified that although he remembered the events leading up to the shooting, he suddenly “blacked out” and had no recollection of actually shooting the victim. Therefore, by his own admission, he was not aware of having caused the victim’s death at the time of the shooting. The state argues that there is no evidence that would permit a jury to rationally find that at the time of the firing of the gun, the appellant was aware of, but consciously disregarded, a substantial and unjustifiable risk that the victim would die as a result of his conduct. The court agrees. It is difficult to understand how a person may “consciously disregard” a risk of which he is unaware. The court of appeals’ reliance on the cited cases involving reckless conduct is misplaced simply because those cases do not involve defendants who were completely incognizant of what occurred at the time they engaged in the charged conduct. Here, the evidence of the appellant’s struggle with the victim and his statements, “It was an accident” and “I did not mean to,” are relevant to the defensive issues of accident and self-defense, but such evidence does not allow a finding of recklessness, given the appellant’s self-described mental state when the victim was killed. Evidence of a defendant’s inability to remember causing the death of the victim does not entitle the defendant to a charge on the lesser-included offense of manslaughter, and the trial court did not err by not submitting such a charge to the jury. OPINION: Womack, J.

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