Stadt v. State, 182 S.W.3d 360 (Tex. Crim. App. 2005). · Go Syfert
Stadt v. State, 182 S.W.3d 360 (Tex. Crim. App. 2005). Cases Citing This Book View Copy Cite
Quick Summary

A defendant is entitled to a lesser included offense instruction if some evidence supports a lesser culpable mental state for each theory alleged in the indictment.

A truck driver charged with manslaughter for causing a fatal collision while drowsy and speeding appeals the trial court’s instruction on the lesser included offense of criminally negligent homicide. The appellant argues that because the indictment alleged multiple theories of recklessness, evidence negating each specific theory was required to support the lesser charge. The court applies the Rousseau test, focusing on whether evidence permits a rational jury to find the defendant acted with criminal negligence rather than recklessness. The court holds that evidence of drowsiness, inattentiveness, and lack of awareness of risk satisfies the second prong of the test, distinguishing the mental states of conscious risk creation and inattentive risk creation.

159 citation events (159 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 2006 → 2026 · click a year to view as-of
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Cited for
At page 364 Distinguishing conscious risk creation from inattentive risk creation59 citing cases“The offense of manslaughter involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it”8 citing courts quote it · 50 listed here
  • Juan Antonio Salinas v. State of Texas, No. 07-25-00246-CR (Tex. App.—Amarillo July 21, 2026).unpublished
    “ought to be aware of the risk surrounding his conduct or the result thereof but fails to perceive the risk”
  • Ray Lee Cockrell v. State of Texas, No. 06-23-00230-CR (Tex. App.—Texarkana Oct. 7, 2025).unpublished
    “The offense of manslaughter ‘involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it”
  • Corey Lewis Campbell v. State of Texas, No. 01-23-00389-CR (Tex. App.—Houston [1st Dist.] July 17, 2025).unpublished
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Darrell Wayne Brown v. State of Texas, No. 09-23-00048-CR (Tex. App.—Beaumont Feb. 19, 2025).unpublished
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Joshua Ray Tibbits v. State of Texas, No. 12-23-00310-CR (Tex. App.—Tyler Aug. 29, 2024).published
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005).
  • Ashton Deshaun Neroes v. State of Texas, No. 05-22-01271-CR (Tex. App.—Dallas Aug. 7, 2024).unpublished
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Robert Williams v. State of Texas, 693 S.W.3d 877 (Tex. App.—Austin 2024).published 2 cites
    “The offense of manslaughter involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it”
  • Floribeth Sandoval Benjume v. State of Texas, No. 01-22-00492-CR (Tex. App.—Houston [1st Dist.] Apr. 25, 2024).unpublished
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Tina Gabrielle Rendon v. State of Texas, No. 04-22-00565-CR (Tex. App.—San Antonio Aug. 23, 2023).unpublished
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005); Aliff v. State, 627 S.W.2d 166, 171 (Tex. Crim. App. 1982); Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).
  • Trinh Hoang Diem Nguyen v. State of Texas, No. 05-20-00241-CR (Tex. App.—Dallas Aug. 29, 2022).unpublished
    “because the two offenses differ only in that criminally negligent homicide requires a less culpable mental state”
Show 40 more citing cases
  • Aidan Vitela v. State of Texas, 649 S.W.3d 649 (Tex. App.—San Antonio 2022).published
    PENAL CODE ANN. §§ 6.03(d), 19.05; Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005) (citing Aliff v. State, 627 S.W.2d 166, 171 (Tex. Crim. App. 1982)).
  • Aidan Vitela v. State of Texas, No. 04-19-00737-CR (Tex. App.—San Antonio Dec. 22, 2021).published
    PENAL CODE ANN. §§ 6.03(d), 19.05; Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Aidan Vitela v. State of Texas, No. 04-19-00738-CR (Tex. App.—San Antonio Sept. 29, 2021).published
    PENAL CODE ANN. §§ 6.03(d), 19.05; Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Ex parte Christopher Rion, No. 05-19-00280-CR (Tex. App.—Dallas Sept. 13, 2019).unpublished
    Id. at 19.05(a); Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Charles Robert Ransier v. State, 594 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2019).published
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005).
  • Charles Robert Ransier v. State, 594 S.W.3d 1 (Tex. App.—Houston [14th Dist.] 2019).published
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005).
  • Lars Erik Itzo v. State, No. 04-17-00036-CR (Tex. App.—San Antonio Feb. 28, 2018).unpublished
    “Thus, criminally negligent homicide is a lesser included offense of manslaughter, because the two offenses differ only in that criminally negligent homicide requires a less culpable mental state”
  • Minerva Alcorta v. State, No. 04-16-00400-CR (Tex. App.—San Antonio Jan. 31, 2018).unpublished
    “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his - 10 - 04-16-00400-CR conduct or the results thereof but fails to perceive the risk”
  • Pena v. State, 522 S.W.3d 617 (Tex. App.—Houston [14th Dist.] 2017).published
    The offense of criminally negligent homicide “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof but fails to perceive the risk.”- Stadt v. State, 182 S.W.3d…
  • Thien Quoc Nguyen v. State, No. 06-15-00127-CR (Tex. App.—Texarkana Dec. 30, 2015).published
    App. 1982) (difference between recklessness and criminally negligent actions) and Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • MacIas, Jose, No. PD-0663-15 (Tex. June 1, 2015).unpublished
    “involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it”
  • Terry Ray McMillan v. State, No. 05-14-01419-CR (Tex. App.—Dallas May 13, 2015).published
    App. 2007); Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Jose MacIas v. State, No. 13-13-00319-CR (Tex. App.—Corpus Christi Mar. 12, 2015).unpublished
    “involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it”
  • Jeffery Charles Green v. State, No. 06-12-00074-CR (Tex. App.—Texarkana Jan. 4, 2013).unpublished
    Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim.
  • Montgomery v. State, 346 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2011).published 4 cites
    Williams, 235 S.W.3d at 750-53, 769 (distinguishing criminal negligence from recklessness and reversing conviction which was based on recklessness); Stadt, 182 S.W.3d 360, 365 (Tex.Crim.
  • Jeri Dawn Montgomery v. State, No. 14-09-00887-CR (Tex. App.—Houston [14th Dist.] June 2, 2011).published 2 cites
    (holding that a rational jury could conclude that the defendant was criminally negligent when he, among other things, was speeding and had taken a prescription medication that made him drowsy)
  • Mitchell v. State, 321 S.W.3d 30 (Tex. App.—Houston [1st Dist.] 2010).published 2 cites
    “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof [but fails] to perceive the risk”
  • Clinton Mitchell v. State, No. 01-08-00785-CR (Tex. App.—Houston [1st Dist.] Feb. 18, 2010).published 2 cites
    “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof [but fails] to perceive the risk”
  • Wayne Edgar Edwards v. State, No. 02-08-00328-CR (Tex. App.—Fort Worth Jan. 7, 2010).unpublished 3 cites
    Stadt v. State , 182 S.W.3d 360, 364 (Tex. Crim. App. 2005); Lugo v. State , 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). 1.
  • Brown v. State, 296 S.W.3d 371 (Tex. App.—Beaumont 2009).published 3 cites
    Recklessness has been described as involving “conscious risk creation.” See Williams v. State, 235 S.W.3d 742, 755 (Tex.Crim.App.2007); Stadt v. State, 182 S.W.3d 360, 364 (Tex.Crim.App.2005); Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.…
  • Kimberly Castillo v. State, No. 13-05-00423-CR (Tex. App.—Corpus Christi Mar. 13, 2008).unpublished 2 cites
    The offense of manslaughter “involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it.” Yanez, 187 S.W.3d at 741 -42 (quoting Stadt v. State, 18…
  • Elton Larrie Stafford v. State, No. 09-06-00233-CR (Tex. App.—Beaumont Feb. 20, 2008).published
    Stadt v. State , 182 S.W.3d 360, 364 (Tex. Crim.
  • Stafford v. State, 248 S.W.3d 400 (Tex. App.—Beaumont 2008).published
    Stadt v. State, 182 S.W.3d 360, 364 (Tex.Crim.App.2006).
  • Flores, Gerardo, No. PD-0265-07 (Tex. Crim. App. Feb. 13, 2008).published
    Flores v. State , 215 S.W.3d 520 (Tex. App. - Beaumont 2007)(citing Stadt v. State , 182 S.W.3d 360, 364 (Tex. Crim.
  • Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008).published 2 cites
    Flores v. State, 215 S.W.3d 520 (Tex.App.Beaumont 2007)(citing Stadt v. State, 182 S.W.3d 360, 364 (Tex.Crim.App.2005)). .
  • Goodman v. State, 190 S.W.3d 823 (Tex. App.—Fort Worth 2006).published
  • Louis Earl Goodman v. State, No. 02-04-00413-CR (Tex. App.—Fort Worth Mar. 30, 2006).published
  • Grotti v. State, 209 S.W.3d 747 (Tex. App.—Fort Worth 2006).published
  • Flores v. State, 215 S.W.3d 520 (Tex. App.—Beaumont 2007).published
  • Yanez v. State, 187 S.W.3d 724 (Tex. App.—Corpus Christi 2006).published
  • Yanez v. State, 199 S.W.3d 293 (Tex. App.—Corpus Christi 2006).published
  • Lydia H. Grotti v. State, No. 02-04-00406-CR (Tex. App.—Fort Worth Nov. 17, 2006).published
  • Gerardo Flores v. State, No. 09-05-00292-CR (Tex. App.—Beaumont Jan. 24, 2007).published
  • Michael Lee Smith v. State, No. 10-07-00051-CR (Tex. App.—Waco Feb. 27, 2008).unpublished
  • Raymond Ray Poole, Jr. v. State, No. 12-06-00290-CR (Tex. App.—Tyler Sept. 26, 2007).published
  • Anthony Wasylina v. State, 418 S.W.3d 609 (Tex. App.—Tyler 2007).published
  • Anthony Wasylina v. State, No. 12-05-00263-CR (Tex. App.—Tyler Mar. 18, 2009).published
  • Anthony Wasylina v. State, No. 12-05-00263-CR (Tex. App.—Tyler Feb. 26, 2010).published
  • Mejia v. Stephens, 289 F. Supp. 3d 799 (S.D. Tex. 2017).published
  • Michael A. Allen v. State of Texas, No. 01-24-00619-CR (Tex. App.—Houston [1st Dist.] Aug. 31, 2026).unpublished
At page 363 Instruct on lesser included offense under the rousseau test13 citing casesholding lesser-included-offense instruction warranted when some evidence showed that defendant possessed lesser culpable mental state applicable to each alterative theory alleged in indictment2 citing courts put it this way · 10 listed here
  • Tony Escobar v. State, No. 01-14-00593-CR (Tex. App.—Houston [1st Dist.] May 12, 2015).published
    Stadt v. State, 182 S.W.3d 360, 363 (Tex. Crim.
  • Mark Augustin Castellano v. State, No. 01-14-00486-CR (Tex. App.—Houston [1st Dist.] Mar. 31, 2015).published
    Stadt v. State, 182 S.W.3d 360, 363 (Tex. Crim.
  • David Lee Seaton v. State, 385 S.W.3d 85 (Tex. App.—San Antonio 2012).published 2 cites
    Manslaughter A person commits manslaughter “if he recklessly causes the death of an individual.” Tex. Penal Code Ann. § 19.04 ; Stadt v. State, 182 S.W.3d 360, 363 (Tex.Crim.App.2005).
  • Orona v. State, 341 S.W.3d 452 (Tex. App.—Fort Worth 2011).published 2 cites
    (holding lesser-included-offense instruction warranted when some evidence showed that defendant possessed lesser culpable mental state applicable to each alternative theory alleged in indictment)
  • Alejandro Orona v. State, No. 02-09-00182-CR (Tex. App.—Fort Worth Feb. 24, 2011).published 2 cites
    (holding lesser-included-offense instruction warranted when some evidence showed that defendant possessed lesser culpable mental state applicable to each alterative theory alleged in indictment)
  • Travis Prunty v. State, No. 14-08-00702-CR (Tex. App.—Houston [14th Dist.] July 9, 2009).unpublished
    Stadt v. State , 182 S.W.3d 360, 363 (Tex. Crim.
  • Goodman v. State, 190 S.W.3d 823 (Tex. App.—Fort Worth 2006).published
  • Horne v. State, 228 S.W.3d 442 (Tex. App.—Texarkana 2007).published
  • Louis Earl Goodman v. State, No. 02-04-00413-CR (Tex. App.—Fort Worth Mar. 30, 2006).published
  • Jeffrey Schott v. State, No. 03-11-00447-CR (Tex. App.—Austin Apr. 30, 2013).unpublished
[I]t was only required [that an indictment] allege conduct a jury could rationally find to be reckless under the circumstances of this case.no pin page on record · 2 citing cases listed
  • Craver, Anthony Carl, No. PD-0825-15 (Tex. Crim. App. July 2, 2015).unpublished 2 cites
    ([I]t was only required [that an indictment] allege conduct a jury could rationally find to be reckless under the circumstances of this case.)
  • Anthony Carl Craver v. State, No. 02-14-00076-CR, 2015 WL 3918057 (Tex. App.—Fort Worth June 25, 2015).unpublished
    ([I]t was only required [that an indictment] allege conduct a jury could rationally find to be reckless under the circumstances of this case.)
At page 365 Finding elements of criminally negligent homicide2 citing casesholding trial court properly charged jury on criminally negligent homicide as a lesser included offense1 citing court put it this way
  • Montgomery v. State, 346 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2011).published 4 cites
    Williams, 235 S.W.3d at 750-53, 769 (distinguishing criminal negligence from recklessness and reversing conviction which was based on recklessness); Stadt, 182 S.W.3d 360, 365 (Tex.Crim.
  • Jeri Dawn Montgomery v. State, No. 14-09-00887-CR (Tex. App.—Houston [14th Dist.] June 2, 2011).published 2 cites
    App. 1990) (holding that an objection in the trial court is required to preserve error as to the sufficiency of a charging instrument alleging acts required by article 21.15). [2] The court in Boutin reversed a conviction where the defenda…
At page 361 Establishing criminal negligence in vehicular collisions1 citing caseaffirming conviction for criminally negligent homicide in vehicle collision based on failure to control speed, failure to maintain proper lookout for traffic and road conditions, failure to maintain single lane of traffic, and changing lanes in unsafe manner1 citing court put it this way
  • Sean Michael McGuire v. State, No. 01-11-01089-CR, 2012 WL 344952 (Tex. App.—Houston [1st Dist.] Feb. 2, 2012).unpublished
    (affirming conviction for criminally negligent homicide in vehicle collision based on failure to control speed, failure to maintain proper lookout for traffic and road conditions, failure to maintain single lane of traff…)
Quoted next to this citation, but not language from this opinion
“it was only required that an indictment allege conduct a jury could rationally find to be reckless under the circumstances of this case.”quoted beside the cite; not in this opinion · 2 citing cases listed
  • Craver, Anthony Carl, No. PD-0825-15 (Tex. Crim. App. July 2, 2015).unpublished 2 cites
    “it was only required that an indictment allege conduct a jury could rationally find to be reckless under the circumstances of this case.”
  • Anthony Carl Craver v. State, No. 02-14-00076-CR, 2015 WL 3918057 (Tex. App.—Fort Worth June 25, 2015).unpublished
    “it was only required that an indictment allege conduct a jury could rationally find to be reckless under the circumstances of this case.”
Retrieving the full opinion text from the archive…
Richard Lee STADT, Appellant,
v.
the STATE of Texas
PD-1937-03.
Court of Criminal Appeals of Texas.
Nov 23, 2005.
Published opinion
182 S.W.3d 360
2005 Tex. Crim. App. LEXIS 2009
2005 WL 3117289
Joe Roden, Houston, for Appellant., Alan Curry, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
Cochran, Holcomb, Johnson, Keller, Meyers, Price, Womack.
Cited by 97 opinions  |  Published
Pinpoint authority: #22,266 of 633,719
Citer courts: Court of Criminal Appeals of T… (2) · Court of Appeals of Texas (1)
HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, PRICE, WOMACK, and JOHNSON, JJ„ joined.

The court of appeals held that the trial court did not err in instructing the jury on the lesser included offense of criminally negligent homicide. We affirm.

Our discussion begins with a summary of the relevant facts. On October 24, 2000, a Harris County grand jury presented an indictment that charged appellant with manslaughter under Texas Penal Code § 19.04. The indictment alleged, in relevant part, that

Richard Stadt ... on or about January 31, 2000, did ... recklessly cause the death of D. Turner by operating his motor vehicle ... at an unreasonable speed, by failing to maintain a proper lookout for traffic and road conditions, by failing to maintain a single lane of traffic, and by changing lanes in an unsafe manner.

Thus, the indictment alleged four alternate theories of reckless conduct on appellant’s part.

On November 27, 2001, the State brought appellant to trial before a petit jury on his plea of not guilty. At the guilt stage of that trial, the State, in an effort to prove appellant’s guilt, presented thirteen witnesses and numerous exhibits, including appellant’s own written statement. Appel[*362] lant, in his defense, presented eight witnesses, including himself, and two exhibits.

The evidence presented by the State at the guilt stage, if believed, established the following: At approximately 10:40 a.m. on the morning of January 31, 2000, in the City of Spring, appellant drove an eighteen-wheel tractor-trader rig southbound in the right-hand lane of Interstate Highway 45. As appellant neared and then drove onto the Spring-Stuebner overpass, he maintained a speed of approximately 70 miles per hour, although the posted speed limit was 55 miles per hour. The surface of the highway in the area was “very rough,” with “many potholes and grooves” and “dips and sways.” The traffic lanes on the overpass were relatively narrow, and there was no shoulder. Instead of a shoulder, there was a concrete barrier just outside the right-hand lane. When appellant approached the top of the overpass, he “looked at” his rearview mirror, and, within an instant, the right front wheel of his tractor-trailer rig collided with the concrete barrier. Appellant’s tractor-trailer rig then ricocheted off the concrete barrier, crossed over the other lanes of traffic and the highway’s median, and hit two vehicles traveling northbound. In one of those vehicles was Dale Turner, who was killed instantly. Appellant survived the accident and, afterward, told an Emergency Medical Services worker at the scene that “he had taken some medication [earlier that morning] and he was a little bit drowsy.”

Appellant, with his evidence, tried to paint a slightly different picture. The evidence he presented at the guilt stage, if believed, established the following: On the evening of January 30, 2000, appellant, who was a truck driver for General Packaging Corporation in Richardson, went to bed at his home at around 10:00 p.m., which, for him, was an hour later than usual. He awoke the next morning at around 4:00 a.m. After taking a prescription medication for his high blood pressure and doing a few other routine things, he left for work. He arrived at the General Packaging Corporation truck yard at around 5:00 a.m., at which time he performed a routine safety check of his eighteen-wheel tractor-trailer rig. At around 6:00 a.m., appellant drove his tractor-trailer rig out of the truck yard and began his usual run to Houston on the Interstate. At around 7:00 a.m., he stopped his rig in Corsicana for re-fueling. During that refueling stop, he napped inside the rig. At around 8:00 a.m., appellant resumed his run to Houston. A short time later, near Madisonville, he pulled off the Interstate and performed a routine safety check of his rig’s tires. He then resumed his run to Houston. As he neared and then drove onto the Spring-Stuebner overpass, a stretch of highway with which he was familiar, he reduced his speed but stayed within the flow of traffic. He then made “a quick check of [his] mirrors just to see what was around [him].” As appellant’s gaze turned forward again, his right front wheel impacted the concrete barrier just to the right of his traffic lane. He had “no clue why it happened.”

At the conclusion of the presentation of the evidence at the guilt stage, the trial court presented its proposed jury charge to both parties. The proposed charged authorized the jury to convict appellant of manslaughter, as alleged alternatively in the indictment, or the lesser included offense of criminally negligent homicide. [1] Appellant objected to the inclusion of crim[*363] inally negligent homicide in the charge, but the trial court overruled the objection. The jury later found appellant not guilty of manslaughter but guilty of criminally negligent homicide. The jury assessed appellant’s punishment at imprisonment for three years, probated.

On direct appeal, appellant argued that the trial court erred in instructing the jury on criminally negligent homicide “because no evidence permitted the jury to rationally find that if [he] was guilty, he was guilty only of criminally negligent homicide.” Appellant, citing Arevalo v. State, 970 S.W.2d 547 (Tex.Crim.App.1998), argued in particular that an instruction on criminally negligent homicide was not warranted because there was no evidence adduced at trial that “refute[d] or negate[d] each and every one of the four alternate theories of manslaughter” alleged in the indictment and on which the jury charge authorized the jury to convict.

The court of appeals rejected appellant’s argument and held that the trial court did not err in instructing the jury on the lesser included offense of criminally negligent homicide. Stadt v. State, 120 S.W.3d 428, 440 (Tex.App.-Houston [14th Dist.] 2003). We granted appellant’s petition for discretionary review in order to determine whether the court of appeals erred. See Tex.R.App. Proc. 66.3(c).

A trial court may instruct the jury on a lesser included offense if (1) the offense in question is a lesser included offense under Article 37.09 of the Texas Code of Criminal Procedure [2] and (2) there is some evidence that would permit a rational jury to find that the defendant is not guilty of the greater offense but is guilty of the lesser included offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005); Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). This two-prong test is usually known as the Rousseau test, after the case in which the test was first stated in that exact form. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). It is the second prong of the Rousseau test that is the subject of this appeal.

Appellant’s reliance on Arevalo v. State, 970 S.W.2d 547, is misplaced. In that case, we held that, “if sufficient evidence of more than one theory of the greater offense is presented to allow the jury to be charged on alternate theories [of the greater offense], the second prong of the [Rousseau] test is satisfied only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater.” In this case, what elevated the offense from the lesser to the greater was the culpable mental state.

Under Texas Penal Code § 19.04, a person commits manslaughter “if he recklessly causes the death of an individual.” Under Texas Penal Code § 6.03(c),

[a] person acts recklessly ... with respect to ... the result of his conduct when he is aware of but consciously[*364] disregards a substantial and unjustifiable risk that ... 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.

Under Texas Penal Code § 19.05, a person commits criminally negligent homicide “if he causes the death of an individual by criminal negligence.” Under Texas Penal Code § 6.03(d),

[a] person acts with criminal negligence ... with respect to ... the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that ... the result will occur. The • risk must be of such a nature and degree that the failure to perceive it 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.

The offense of manslaughter “involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it.” Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975). The offense of criminally negligent homicide, on the other hand, “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the result thereof [but fails] to perceive the risk.” Ibid. Thus, criminally negligent homicide is a lesser included offense of manslaughter, because the two offenses differ only in that criminally negligent homicide requires a less culpable mental state. Aliff v. State, 627 S.W.2d 166, 171 (Tex.Crim.App.1982); Art. 37.09(3), fn. 2, supra.

The question before us is not whether there was some evidence presented at appellant’s trial that would permit a rational jury to find that he was not guilty of each and every alternate theory of manslaughter alleged in the indictment but whether there was some evidence presented at appellant’s trial that would permit a rational jury to find that he possessed the culpable mental state of criminal negligence rather than recklessness. After reviewing the record, we conclude that there was such evidence presented at appellant’s trial.

At appellant’s trial, evidence was presented to the effect that (1) on the night before the accident, he slept less than he usually slept; (2) on the morning of the accident, he took a prescription medication that made him drowsy; (3) on the morning of the accident, he performed multiple safety checks of his vehicle; (4) at the time of the accident, he was driving approximately fifteen miles per hour over the posted speed limit; (5) at the time of the accident, he was already familiar with the narrow lanes and poor road conditions on the Spring-Stuebner overpass; (6) at the time of the accident, he took his eyes off the road for a moment in order to look into his rearview mirror; (7) at the time of the accident, he had “no clue” as to why the accident happened; and (8) Dale Turner’s death resulted from the accident. Given this evidence, a rational jury could have found that appellant was not guilty of manslaughter as alleged in the indictment and included in the charge but was nevertheless guilty of criminally negligent homicide. [3] That is, a rational jury could have[*365] found that (1) appellant’s conduct caused the death of Dale Turner; (2) appellant ought to have been aware of a substantial and unjustifiable risk of death created by his excessive speed and his failure to maintain a proper lookout on a highway with narrow lanes and poor road conditions; (3) appellant, though normally safety-conscious, was not aware of the substantial and unjustifiable risk of death created by his conduct, due either to lack of sleep or drowsiness caused by medication or perhaps just simple inattentiveness; and (4) appellant’s failure to perceive the risk created by his conduct constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from appellant’s viewpoint. In short, given the evidence adduced at appellant’s trial, the second prong of the Rousseau test was met, as the court of appeals held.

We affirm the judgment of the court of appeals.

KEASLER and HERVEY, JJ., concurred in the result.

COCHRAN, J., did not participate.
1

. Criminally negligent homicide is a lesser included offense of manslaughter. See discussion, infra.

2

. Article 37.09 provides:

An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the charged offense;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
3

. We hasten to add that, given the evidence at trial, a rational jury could have found appellant guilty of manslaughter. That is, in this case, a rational jury could have viewed the evidence in either of two ways, one supporting a finding of guilt of manslaughter, with its[*365] higher culpable mental state, the other supporting a finding of guilt of criminally negligent homicide, with its lower culpable mental state.