## NO. 12

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IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANTHONY WASYLINA, APPELLANT ' APPEAL FROM THE 3R D

V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS, ' ANDERSON COUNTY, TEXAS APPELLEE MEMORANDUM OPI NION ON REMAND A jury convicted Anthony Wasylina fo r criminally negligent homicide. The trial

court sentenced Appellant to confinement for two years, probated for five years. We reversed and remanded for a new trial holding that the State was not entitl ed to the
submission of a lesser included offense because there was no evidence that Appellant was guilty of only criminall y negligent homicide. See Wasylina v. State , No. 12

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- 00263

- CR, 2009 WL 692603 , at *5 (Tex. App.

– Tyler, March 18, 2009). The State filed a petition for review. O n January 27, 2010, by per curia m opinion, the court of criminal appeals granted the State’s petition for review. See Wasylina v. State , No. PD

- 737

- 09, 2010 WL 343514, at *1 (Tex. Crim. App. Jan. 27, 2010). In its opinion, the court noted that we did not have the benefit of its opinion in Grey v. State , 298 S.W.3d 644, 651 (Tex. Crim. App. 2009) when we issued our opinion of March 18, 2009. See Wasylina
, 2010 WL 343514, at *1. Consequently, the court vacated our judgment and remanded the cause to us for further consideration in light of its opinion in Grey

. See Wasylina
, 2010 WL 343514, at *1. We affirm.

B ACKGROUND The facts of the case at hand are well known to the parties. As such, we will not
recount them here. 1

1 A full recitation of the facts appears in Wasylina
, 2009 W L 692603, at *5

.S TATE ’ S R EQUEST FOR L ESSER I NCLUDED O FFENSE In his sole issue, Appellant argues that the trial court erred in submitting the lesser included offense of criminally negligent homicide because the evidence does not support that he acted with criminal negli gence. 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 offense charged; (2) it differs from the offense charged only in the respect that a less s erious 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. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.09 (Vernon 2006 ); see also Hall v. State , 225 S.W.3d 524, 527 (Tex. Crim. App. 2007). Furthermore, a charge on a lesser include d offense should be given only when there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. See Salinas v. State , 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousse au v. State , 855 S.W.2d 666, 672

– 73 (Tex. Crim. App. 1993). Appellant concedes that criminally negligent homicide is a lesser included offense of manslaughter. See Stadt v. State , 182 S.W.3d 360, 364 (Tex. Crim. App. 2005).
In Grey v. State , the cour t of criminal appeals overruled Arevalo v. State , 943 S.W.2d 887 (Tex. Crim. App. 1997), thereby abrogating the common law rule that the state, in order to support its request for the submission of a lesser included offense in the court’s charge, must meet the “guilty only” prong of the Rousseau test

. See Grey , 298 S.W.3d at 651. Consequently, because Appellant concedes that criminally negligent homicide is a lesser included offense of manslaughter, we hold that the trial court properly granted the State’ s request for the submission of that lesser included offense in its charge. Appellant’s sole issue is overruled.

D ISPOSITION Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
JAMES T. WORTHEN C hief Justice Opinion delivered February 26 , 20 10

. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH)