TOMMIE EARL ARMSTEAD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed October 27, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01104-CR
............................
TOMMIE EARL ARMSTEAD, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F87-88426-LU
.................................................................
O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice McClung
        Tommie Earl Armstead appeals his conviction of murder. The jury assessed punishment at 20 years' confinement. Armstead complains that the trial court erred in not submitting a charge on voluntary manslaughter. We affirm the trial court's judgment.
        In Armstead's sole point of error, he claims that the trial court erred in not giving his requested charge on the lesser included offense of voluntary manslaughter. In determining whether a jury charge on a lesser included offense was required, we apply a two-prong analysis: first, the lesser included offense must be included within the proof necessary to establish the offense charged; and second, there must be some evidence in the record that if the accused is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). Section 19.04(a) of the Texas Penal Code provides that voluntary manslaughter occurs when a person causes the death of an individual under circumstances that would constitute murder under section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Penal Code Ann. § 1904(a) (Vernon 1989); see Bradley v. State, 688 S.W.2d 847, 851 (Tex. Crim. App. 1985). Section 19.02(a)(1) of the penal code provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(a)(1) (Vernon 1989). In the present case, Armstead testified that he did not intend to kill the victim or "anything like that." In Aqueno v. State, 710 S.W.2d 747, 751 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd), the court held that appellant's testimony that he had no intention of harming the victim denied the existence of an essential element of both murder and voluntary manslaughter, the intent to kill. Therefore, the appellant was not entitled to a charge on the lesser included offense of manslaughter because he failed to meet the second prong of the Royster test. Similarly, in the present case, Armstead has failed to establish that if he is guilty, he is guilty of only voluntary manslaughter.
        We therefore conclude that Armstead is not entitled to a charge on the lesser included offense of voluntary manslaughter because he failed to meet the second prong of Royster. Armstead's sole point of error is overruled.
 
The judgment of the trial court is affirmed.
 
                                                          
                                                          PAT McCLUNG
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
881104F.UO5
 
 
File Date[10-27-89]
File Name[881104F]