Opinion
No. 06-08-00070-CR
Date Submitted: October 15, 2008.
Date Decided: October 20, 2008. DO NOT PUBLISH.
On Appeal from the County Court at Law, Cass County, Texas, Trial Court No. CCLM080107.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Sandra Hatcher Moore was convicted of assault causing bodily injury, a class A misdemeanor. The trial court imposed a one-year sentence, suspended its imposition, and placed her on community supervision for two years. On appeal, she argues in a single point of error that the trial court erred by refusing to include the lesser included offense of assault by threat in the jury charge. Finding no error, we affirm the judgment. The lesson of this case is simple: one should not extend the third finger of both hands at a police officer while hanging out of the window of a car and screaming obscenities at him — and then drive into the parking lot where the officer is already giving another individual a traffic ticket. It annoys the officer, disturbs the peace, and causes him to reasonably wonder about the level of sobriety of the person involved. Texas Department of Public Safety Trooper Eric White testified that he observed Moore engaging in all of these activities. After talking to her briefly, he arrested her for public intoxication, and when Deputy Sheriff Butch Bates arrived and placed Moore in his patrol car, she attempted to kick its window out (and failed). The officers then put leg restraints on Moore, but during the process, according to the State, Moore kicked Bates, and this prosecution ensued. Moore contends that the trial court committed reversible error by failing to include her requested charge on the lesser included offense of assault by threat. A defendant is entitled to a charge on a lesser offense if (1) the offense is a lesser included offense of the offense charged, and (2) there is some evidence that would permit the jury rationally to find that, if the defendant is guilty, he or she is guilty only of the lesser offense. Applying the first step of the lesser included offense analysis in the instant case, we do not consider the evidence that was presented at trial. Instead, we consider only the statutory elements of greater offense as they were modified by the particular allegations in the indictment or information. We then ask the question that Article 37.09(1) poses: are the elements of the lesser offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged?" Hall, 225 S.W.3d at 527. In this case, Moore was charged with causing "bodily injury to Butch Bates, by kicking the said Butch Bates about the left arm and side." The court submitted two separate charges to the jury — assault causing bodily injury, and, as a lesser included offense, assault by contact. (Tex. Penal Code Ann. § 22.01(a)(3) (Vernon Supp. 2008)). The jury answered only the assault with bodily injury charge. Moore also requested that assault by threat, Tex. Penal Code Ann. § 22.01(a)(2) (Vernon Supp. 2008), be submitted as a lesser included offense, which the trial court denied. The variations are set out together in the Texas Penal Code as follows:§ 22.01. Assault
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another . . .
(2) intentionally or knowingly threatens another with imminent bodily injury . . .
(3) intentionally or knowingly causes physical contact with another when the person knows . . . that the other will regard the contact as offensive or provocative.Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2008). The Texas Code of Criminal Procedure provides, in relevant part, that 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; [or]
(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. . . .Tex. Code Crim. Proc. Ann. art. 37.09. When we compare the elements of assault causing bodily injury, Section 22.01(a)(1), with the requested lesser charge, assault by threat, Section 22.01(a)(2), we find the alleged lesser offense requires elements not required by the greater offense. Assault by threat requires proof that the defendant threatened another with imminent bodily injury, whereas assault causing bodily injury does not have elements of either "threaten" or "imminent" bodily injury. Assault by threat cannot be a lesser included charge of assault causing bodily injury since it requires proof of more facts, not the same or less. The trial court did not err in refusing to submit the requested charge to the jury. See Hall, 225 S.W.3d at 536. Further, even if this was a lesser included offense, the record does not contain evidence of a threat being made by Moore. The record thus does not support the second prong of the requirements that must be met before a lesser included offense charge may be given, as there is no evidence that would permit the jury rationally to find that, if the defendant is guilty, she is guilty only of the lesser offense. The contention of error is overruled. We affirm the judgment.