IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0435-11

JOSHUA LEE GOAD, Appellant

v.

THE STATE OF TEXAS

 ON THE STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

ECTOR COUNTY

ALCALA, J., filed a concurring opinion.

CONCURRING OPINION

I write separately to address (1) why the standard of review that appellate courts

should apply when reviewing the trial court’s decision to give or to refuse an instruction on

a lesser-included offense is abuse of discretion, (2) how the abuse-of-discretion standard

should be applied by appellate courts depending on whether the trial court’s decision is based

on direct evidence of a lesser-included offense or on circumstantial evidence, and (3) why

I believe the trial court abused its discretion by denying the lesser-included-offense

instruction in this case. Although we have repeatedly explained the substantive test that trial
Goad Concurring Opinion - 2

courts must apply in deciding whether to give a lesser-included-offense instruction, our Court

has failed to clearly state and consistently apply the appellate standard of review for

determining whether the trial court erred in that decision. This is problematic because the

review standard determines the strength of the lens through which an appellate court may

examine an issue on appeal. See RUGGERO J. ALDISERT, OPINION WRITING 53 (West

Publishing Co. 1990) (explaining that “[s]tandards of review are critically important in

appellate decision making” and elevating “the necessity of stating the review standard to a

question of minimum professional conduct.”). The question of what standard of review

applies is, therefore, relevant in every case, as the amount of deference owed to a trial court’s

decision affects appellate analysis and is often outcome determinative. For example, what

might be considered error under a de novo standard of review might not be considered error

under an abuse-of-discretion standard.

I do not join the majority opinion because it fails to specify whether it is reviewing

the trial court’s denial of the lesser-included-offense instruction under the second prong for

an abuse of discretion. I believe our opinions should clearly and consistently specify that

we review a trial court’s decision under the second prong for an abuse of discretion and that

we will not reverse that decision unless it is outside the zone of reasonable disagreement. I

also conclude that the amount of deference that an appellate court owes a trial court under

the abuse-of-discretion standard may be affected depending on whether the evidence
Goad Concurring Opinion - 3

supporting the lesser-included offense is direct evidence or indirect, circumstantial evidence.

1

I conclude that, in this case, the trial court did abuse its discretion by refusing to give the

lesser-included-offense instruction.

I. Standard of Review Applicable to Lesser-Included-Offense Instructions

The standard of review applicable to lesser-included-offense instructions depends on

which of the two substantive prongsthe court is reviewing. The substantive two-pronged test

for determining whether a trial court is required to instruct on a lesser-included offense is

well established: the first prong requires that the lesser-included offense be included within

the offense charged, and the second prong requires that there be some evidence that would

permit a jury to rationally find that if a defendant is guilty, he is guilty only of the lesser

offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Hall v. State,

225 S.W.3d 524, 536 (Tex. Crim. App. 2007). We have explicitly stated that the first prong

is a matter-of-law determination, and, therefore, de novo review is appropriate. See Hall, 225

S.W.3d at 535. On a couple of occasions, our Court explicitly described appellate review of

Because the law uses the terms “circumstantial evidence” and “indirect evidence”

1

interchangeably, I refer to evidence that is based on inference and not on personal knowledge or

observation as “circumstantial evidence.” See BLACK’SLAW DICTIONARY 595 (8th ed. 2004); Shippy

v. State, 556 S.W.2d 246 (Tex. Crim. App. 1977) (Phillips, J., concurring) (“We have three classes

of evidence: (1) Direct or testimonial evidence; (2) indirect or circumstantial evidence; (3) autoptic

preference, or real evidence.”) (internal quotations omitted).
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the second prong as abuse of discretion. But we have never explained why this is the

2

appropriate standard of review for that prong nor how that standard affects our analysis of

that prong. Furthermore, our Court is inconsistent in its explicit application of the abuse-ofdiscretion standard for reviewing the second prong, and we usually, as here, do not mention

whatstandard of review we are applying in our lesser-included-offense-instruction decisions.

See, e.g., Sweed v. State, No. PD-0273-10, 2011 Tex. Crim. App. LEXIS 1395 (Tex. Crim.

App. Oct. 19, 2011) (not yet reported). For these reasons, an intermediate appellate court

attempting to abide by this Court’s authority would find this Court’s precedent unclear

concerning the standard of review applicable to the second-prong analysis.

Federal courts, which apply the same substantive two-pronged test in evaluating

instructions on lesser-included offenses, apply the same two standards of review that our

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Court has expressly applied intermittently in the past, and I agree that they are the appropriate

Although we have never discussed what standard of review we apply in analyzing trial-court

2

rulings on lesser-included instructions, we have, in at least one case, concluded that the “trial court

did not abuse its discretion in concluding that there was no evidence that would permit a jury

rationally to find that appellant” was guilty only of the lesser-included offense. Threadgill v. State,

146 S.W.3d 654, 666 (Tex. Crim. App. 2004); see also Gongora v. State, No. AP-74,636, 2006 Tex.

Crim. App. LEXIS 2531 (Tex. Crim. App. Feb. 1, 2006) (not designated for publication) (“The trial

court did not abuse its discretion in refusing to give the lesser-included offense instruction.”). 

Moreover, we have never explicitly stated that we apply a review standard other than an abuse-ofdiscretion standard.

See United States v. Mays, 466 F.3d 335, 341 (5th Cir. 2006) (“A defendant is entitled to a

3

lesser-included-offense instruction if ‘(1) the elements of the lesser offense are a subset of the

elements of the charged offense (statutory elements test), and (2) the evidence at trial permits a

rational jury to find the defendant guilty of the lesser offense yet acquit him of the greater.’”)

(quoting United States v. Avants, 367 F.3d 433, 450 (5th Cir. 2004)).
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standards. I also believe that, like many of the opinions by federal courts, our opinions

4

should consistently specify what standard of review we are applying and how the applicable

standard affects our analysis of the purported error.

In examining the evidence under the second prong, the trial court examines the record

in two ways: It looks for any evidence that tends to show that the defendant is guilty only

of a lesser-included offense, and it also examines all the evidence to determine whether the

lesser offense is a rational alternative to the greater offense. See Rousseau, 855 S.W.2d at

672-73. As to the former, the trial court initially determines if there is any evidence, credible

or not, from any source that shows that the defendant is guilty of the lesser offense and not

guilty of the greater offense. The trial court does not weigh the credibility of the evidence

5

We followed the federal standard in imposing a rationality requirement to the second prong 4

of the test. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) (citing Cordova v.

Lynaugh, 838 F.2d 764, 767 (5th Cir. Tex. 1988)). It is thus appropriate to look to the circuit courts’

standard for reviewing that prong, which is an abuse of discretion. See, e.g., Mays, 466 F.3d at 341-

42 (“The first prong of this test, examining the elements, is reviewed de novo, while the second

prong, evaluating the sufficiency of the evidence for a finding of guilt on the lesser-included offense,

is reviewed for abuse of discretion.”); United States v. Mullins, 613 F.3d 1273, 1284 (10th Cir. 2010)

(same); United States v. Pedroni, 958 F.2d 262, 268 (9th Cir. 1992) (“The district court’s decision

whether a jury rationally could conclude that the defendant was guilty of the lesser offense and not

guilty of the greater is reviewed for an abuse of discretion. In reviewing for abuse of discretion this

court must consider the instructions as a whole and in the context of the entire trial.”).

Our cases have uniformly held that a defendant is entitled to an instruction on a lesser- 5

included offense if evidence from any source affirmatively raises the issue, regardless of whetherthe

evidence is “strong, weak, unimpeached, or contradicted.” Bell v. State, 693 S.W.2d 434, 442 (Tex.

Crim. App. 1985); Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (“[T]he jury is the

sole judge of the credibility of the witnesses, and it does not matter whether the evidence is strong,

weak, unimpeached or contradicted.”); Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998)

(same). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser

charge. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007); Ferrel v. State, 55 S.W.3d 586,

589 (Tex. Crim. App. 2001). A defendant’s testimony alone is sufficient to raise an issue. Bell, 693
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for the purpose of deciding whether to give the instruction and must presume that the

evidence is true. See Young v. State, 283 S.W.3d 854, 875-76 (Tex. Crim. App. 2009) (“The

credibility of the evidence and whether it conflicts with other evidence or is controverted may

not be considered in determining whether an instruction on a lesser-included offense should

be given.”). Because the trial court does not make any credibility determinations and must

consider all evidence regardless of its quality, this portion of the second-prong analysis

strictly concerns a matter of law. De novo review is, therefore, appropriate because minimal

deference to the trial court’s assessment of the evidence is necessary. Compare Guzman v.

State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).

But the second prong also requires the trial court to examine the rationality of the

lesser offense as an alternative to the greater offense. See Rousseau, 855 S.W.2d at 672-73.

After examining the record for all evidence that tends to establish a lesser offense, a trial

court, presuming the truth of all the evidence, must then decide whether the evidence

supports the lesser offense as a valid, rational alternative to the charged offense. See Feldman

v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). A trial court determines whether a

lesser offense is a valid, rational alternative to the charged offense by examining the evidence

tending to support the lesser offense in the context of all the evidence that has been presented

S.W.2d at 442; Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim. App. 1991). Furthermore, the

trial court does not “determine the weight to be given the evidence; rather it is the jury’s duty, under

proper instruction, to determine whether the evidence is credible and supports the lesser included

offense.” Moore v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998); see also Saunders v. State, 913

S.W.2d 564, 571 (Tex. Crim. App. 1995) (observing that whether “guilty only” evidence is

compelling has not been considered in determining whethertrial court erred in refusing instruction).
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at trial. Id. Although the trial court presumes the credibility of all the evidence in deciding

whether to instruct on a lesser-included offense, it is still in a better position than the

appellate court to assess the evidence and determine whether the lesser-included offense is

a rational alternative to the offense charged. This is because, unlike the appellate court, the

trial court has the benefit of examining the physical appearance, demeanor, and cadence of

speech of the witnesses and determining whether testimony is sarcastic, vague, or otherwise

lacks clarity. See Guzman, 955 S.W.2d at 87. Because the trial court received the evidence

firsthand, the appellate courtshould review the trial court’s decisions under the second prong

only for an abuse of discretion.

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II. Evaluation of Types of Evidence Under the Abuse-of-Discretion Standard

The amount of deference appellate courts give to the trial court’s decision will vary

depending on whether they are reviewing a record that contains (A) direct evidence of a

lesser-included offense or (B) circumstantial evidence from which inferences may be drawn.

A. Direct Evidence of a Lesser-Included Offense

When the record contains direct evidence, such as a defendant’s statements that he

committed an act recklessly and not intentionally or knowingly as charged, the trial court

Our opinions discuss the abuse-of-discretion standard in jury instructions in other contexts. 6

See, e.g., Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004) (inclusion of a “Geesa

instruction” in jury charge); Paredes v. State, 129 S.W.3d 530, 538 (Tex. Crim. App. 2004) (denial

of appellant’s request for accomplice-witness instruction). We have explained that if the trial court

is in “an appreciably better position than the reviewing court” to make a determination, deference

to the trial court is appropriate. Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997); see

also Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J.,

concurring).
Goad Concurring Opinion - 8

must presume that these statements are true for jury-charge purposes. This evidence raises

the lesser-included offense of reckless conduct as a valid, rational alternative to the charged

offense because it is some evidence that the defendant possessed a lesser culpable mental

state than that alleged in the indictment. The trial court, therefore, must instruct on the lesserincluded offense. When any evidence in the record directly supports a lesser-included

offense and a lack of guilt on the greater offense, I believe that failure to give the lesserincluded instruction is almost always erroneous. See Young, 283 S.W.3d at 875-76; Moore

v. State, 969 S.W.2d 4, 11 (Tex. Crim. App. 1998).

Although case law discussing direct evidence of a lesser-included offense almost

always requires the lesser instruction, it does appear that we have applied an abuse-ofdiscretion standard of review in this situation on at least one occasion. In Mathis v. State,

we held that Mathis’s testimony was not evidence upon which a jury could rationally find

that he possessed a less culpable mental state than that alleged in the indictment. 67 S.W.3d

918, 925 (Tex. Crim. App. 2002). Mathis testified that “he acted ‘recklessly’ with the gun

and did not intend to kill anyone.” Id. Noting that “his testimony about the shootings was

fraught with inconsistencies,” we determined that his testimony did “not amount to evidence

upon which a jury could rationally find [he] only acted recklessly with respect to killing [the

complainant], and not intentionally.” Id. at 925-26. We observed that, when Mathis killed the

complainant, he had already shot and killed a different complainant with two shots to the

head and that he had “vacillated” in admitting that he had aimed and fired the gun. Id. at 925.
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Importantly, we concluded that, “[a]part from appellant’s own testimony that he did not

intend to kill anyone, there was no other evidence in support of such theory, and in fact the

evidence refuted that testimony.” Id. at 926.

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Although we did not explicitly state in Mathis that we were reviewing the trial court’s

rationality determination for an abuse of discretion, I believe that is the standard we

implicitly applied when we declined to find that the trial court erred. See id. I believe that,

in Mathis, the trial court should have given the lesser-included-offense instruction for

reckless intent based on the appellant’s direct testimony that he had that intent. See id.

However, I also believe that the trial court’s ruling was within the zone of reasonable

disagreement because the trial court could have reasonably determined that Mathis’s

testimony about his reckless intent, even presuming that the testimony was credible, did not

provide a valid, rational alternative to the greater charged offense in light of the entire

circumstances of the offense shown in the record. See id. Mathis is one of those rare cases

Mathis relies on an earlier decision by our Court in Wesbrook v. State, 9 S.W.3d 103 (Tex. 7

Crim. App. 2000). Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). In Wesbrook, we

similarly stated, “The only contrary evidence that this was not an intentional or knowing act is

appellant’s own assertion that he did not intend to kill. In light of all the evidence in the record, this

was not evidence from which a jury could rationally conclude that appellant was guilty only of

aggravated assault.” Wesbrook, 9 S.W.3d at 113-14. But in Wesbrook, the defendant denied any

intent to kill as compared to Mathis, in which the defendant claimed he acted only recklessly. See

Mathis, 67 S.W.3d at 925; Wesbrook, 9 S.W.3d at 113-14. Mathis, therefore, appears to be the only

case from this Court, in which direct testimony describing a lower mental state did not require a

lesser included-offense-instruction on the lower mental state. Compare Mathis, 67 S.W.3d at 925. 

 
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in which a trial court would not abuse its discretion either by giving or not giving a lesserincluded-offense instruction. See id.

Although Mathis presents an exception to the rule, the general rule should be that

direct evidence of a lesser mental state is evidence supporting a lesser-included offense as

a rational alternative to a greater offense because the credibility of all the evidence in the

record must be presumed for purposes of giving a jury instruction. I conclude that, although

an appellate court should limit its review of a trial court’s rationality determination to an

abuse of discretion, a trial court is entitled to less deference when the record contains direct

evidence of a lesser culpable mental state.

B. Circumstantial Evidence Supports a Lesser-Included Offense

Circumstantial evidence of a defendant’s culpable mental state requires a trial court

to determine what inferences a jury may reasonably draw from that evidence. Because

inferences drawn from circumstantial evidence are more subjective than conclusions drawn

from direct evidence, I believe that an appellate court should defer to a trial court’s

determination as long as it is within the zone of reasonable disagreement.

If a record contains only circumstantial evidence of deliberate conduct, such as

evidence that a victim was shot repeatedly, the State may properly rely on that evidence to

establish that the defendant’s acts were intentional. See Gardner v. State, 306 S.W.3d 274,

285 (Tex. Crim. App. 2009) (State may prove “criminal culpability by either direct or

circumstantial evidence, coupled with all reasonable inferences from that evidence.”). But
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can a defendant rely on that same circumstantial evidence to establish that he acted with

some lesser culpable mental state? I believe that the answer to this question is sometimes:

sometimes circumstantial facts raise an offense with a less culpable mental state as a valid,

rational alternative to the charged offense, and sometimes they do not. It is in these instances

that a trial court is charged with the challenging task of determining whether the facts show

a valid, rational alternative to the charged offense.

Recently, in Sweed v. State, our Court held that the trial court erred by failing to give

a lesser-included-offense instruction of theft in a case in which the appellant was charged

with aggravated robbery. Sweed, 2011 Tex. Crim. App. LEXIS 1395, at *17. The central

issue at trial was whether the appellant pulled a knife on the complainant during, or in

immediate flight after, the commission of the theft. Id. at *15. The record contained evidence

of a fifteen- to thirty-minute delay between the appellant’s flight following his commission

of the theft and the appellant’s use of the knife, as well as intervening activities that could

support a rational inference that he was no longer fleeing from the theft when he used the

knife. Id. at *15-16. We determined that there was more than a scintilla of evidence from

which the jury could have reasonably determined that theft was a valid, rational alternative

to aggravated robbery. Id. Sweed shows that a trial court, without deciding the credibility of

the evidence, must evaluate the circumstantial evidence and assess whether a jury could

rationally decide that those facts show guilt of only a lesser offense.
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But our Court’s earlier decisions can seem contrary to this position. As the State

points out in this case, we have held that a lesser-included instruction is not required when

the basis for the instruction is merely a factfinder’s disbelief of certain evidence necessary

to prove a greater offense. See Hampton v. State,109 S.W.3d 437, 440-42 (Tex. Crim. App.

2003) (rejecting State’s argument thatsince knife, which was necessary to prove aggravating

element, was never recovered, jury’s finding of guilt for sexual assault was valid rational

alternative to charged offense, explaining that it is not enough that jury may disbelieve

crucial evidence pertaining to greater offense); Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997), cert. denied, 523 U.S. 1079 (1998) (“It is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some

evidence directly germane to a lesser-included offense for the factfinder to consider before

an instruction on a lesser-included offense is warranted.”). We reaffirmed that position in

Sweed. 2011 Tex. Crim. App. LEXIS 1395, at *16-17. I agree that mere disbelief of evidence

necessary to establish a greater offense would not require a lesser-included offense

instruction. See id.

Contrary to the State’s position, there is a line to be drawn here. In one case, the

defendant is asking for a lesser-included-offense instruction by arguing that certain evidence

necessary to prove the greater offense is not credible or true. See Hampton,109 S.W.3d at

440-42. In another case, the defendant is asking for a lesser-included-offense instruction by

presuming the truth of all the evidence presented at trial and arguing that a jury could
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reasonably infer either that the evidence shows a lesser offense or a greater offense. See

Sweed, 2011 Tex. Crim. App. LEXIS 1395, at *16-17. These cases show that there is a line

to be drawn between a record that shows mere disbelief of certain evidence necessary to

prove a greater offense, which would not require a lesser-included-offense instruction, and

a record that contains circumstantial evidence from which a factfinder could reasonably infer

either a greater or a lesser mental state, which would require the lesser instruction.

I conclude that when an appellate court is reviewing a trial court’s determination as

to the rationality of the inferences reasonably drawn from circumstantial evidence, the

appellate court should give great deference to the trial court’s decision because the trial court

has the benefit of firsthand examination of witness testimony. See Guzman, 955 S.W.2d at

87. Because reasonable minds may frequently differ on what inferences may properly be

drawn from circumstantial evidence, appellate courts should defer to the trial court’s

rationality determination when it is within the zone of reasonable disagreement.

III. Analysis of This Case

This case presents the scenario described in the circumstantial-evidence example

in which all the evidence in the record is presumed to be true. Appellant is not relying on

disbelief of evidence necessary to establish the greater offense, but is instead accepting the

truth of all the evidence for the purpose of the lesser-included-offense instruction. The

question here is whether the trial court erred in refusing to instruct on the lesser-included

offense of trespass.
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As the court of appeals correctly observes, the only distinction between criminal

trespass and burglary of a habitation is the defendant’s mental state: the latter requires proof

of intent to commit a felony, theft, or an assault, and the former does not. See TEX. PENAL

CODE §§ 30.02(a)(1) & 30.05(a). Appellant did not testify at trial, and the record contains

no direct evidence of his mental state when he entered the complainant’s home. Rather, the

only evidence of appellant’s mental state is circumstantial: the record shows that

appellant—the complainant’s neighbor—and a friend went to the complainant’s home,

knocked on the door, and accused her of having one of appellant’s dogs. The complainant

8

refused appellant’s request to allow him to search the house for his pit bull, which the

complainant denied having, and appellant “got really upset” and called her several “choice

words.” Appellant left, and then the complainant moved the car of a visiting friend out of

view so it appeared that no one was home. Moments later, the complainant, sitting in her

kitchen, saw appellant attempting to enter her house through the living room window. The

complainant rushed to the window, slammed it shut, and appellant fled.

In deciding whether the trial court properly refused the lesser-included instruction, we

must determine whether, in light of all the evidence presented at trial, the trial court’s

decision is outside the zone of reasonable disagreement. Based on this circumstantial

evidence, the trial court could have determined that a jury could have rationally believed that

appellant’s initial request for the dog was a ruse to determine if anyone was home and that

At trial, the complainant, a professed animal lover, testified that dog fighting routinely 8

occurred in appellant’s backyard and that she “did not care for him at all.”
Goad Concurring Opinion - 15

he later entered with the burglarious intent to commit theft. This evidence supports the

greater offense. See Gardner, 306 S.W.3d at 285. The trial court also could have determined

that a jury could have rationally believed that appellant’s initial request for the dog is

evidence of his intent to enter the house to search for his own property and not to commit

theft. This evidence supports the lesser-included offense. Because both inferences are

reasonable, the evidence establishes either guilt for the charged offense of burglary or guilt

for only the lesser offense of trespass.

The question is not what our Court would have decided based on a de novo review of

the record. The question instead is whether any trial-court judge could have reasonably

decided that there was no evidence to rationally support a finding of only trespass. I

conclude that no trial court could reasonably determine that a jury would be irrational in

finding that appellant lacked burglarious intent and, therefore, was guilty only of trespass.

Although we should generally defer to a trial court’s determination as to what inferences a

jury may reasonably draw from circumstantial evidence, the record here shows that the trial

court abused its discretion in its determination. In light of all the evidence presented at trial,

the trial court’s decision not to instruct on the lesser-included offense of trespass was outside

the zone of reasonable disagreement.

IV. Conclusion

I believe that the better practice is for trial courts to instruct the jury on all lesserincluded offenses when the defendant has stated that he had a lesser culpable mental state or
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when the only evidence of a defendant’s culpable mental state is circumstantial and that

evidence provides a basis for a jury to rationally find a lesser culpable mental state. But I

also believe that appellate courts must review a trial court’s decision to give or to refuse an

instruction on a lesser-included offense only for an abuse of discretion and find error only

when the trial court’s ruling is outside the zone of reasonable disagreement. Because I

conclude that the trial court did abuse its discretion in its determination as to the second

prong, I concur with the result in this case.

Alcala, J.

Filed: November 9, 2011

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