Opinion
No. 4-05-00724-CR
Delivered and Filed: October 11, 2006. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-2140B, Honorable Juanita A. Vasquez-Gardner, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Richard Alexander Reyes was convicted of aggravated assault with a deadly weapon and sentenced to eight years of confinement. Reyes appeals, arguing that the trial court erred in denying his request for a jury instruction on the lesser-included offense of assault causing bodily harm. We disagree and affirm the judgment of the trial court.
Background
Reyes became enraged when he observed Shawn Vancleve in a car with his family while passing through the drive-through window at the restaurant where Reyes worked. Reyes chased the car from the restaurant yelling obscenities and threats. Merly Murillo, Vancleve's mother, was driving the car and dropped off her passengers and returned to her home. Shortly after her return home, Reyes and his brother, Alejandro Reyes, arrived at the Murillo home and confronted Merly Murillo's husband, Herbert Murillo, announcing that they were looking for Vancleve. When Herbert Murillo told the Reyes brothers that Vancleve was not present at his house, they did not believe him and threatened him. Richard Reyes proceeded to attack Mr. Murillo, first with his fists and then with a metal bar. Reyes subsequently denied that he hit the victim with the metal bar but conceded that he did hit the victim with his hands. Mr. Murillo was transported to the hospital and was treated for a concussion, bruises, and abrasions.Discussion
Reyes argues that the trial court erred in denying his request for a jury instruction on the lesser-included offense of assault causing bodily harm. We disagree. Reyes was charged with aggravated assault with a deadly weapon. At trial, he requested a jury instruction on the lesser-included offense of assault causing bodily injury, but his request was denied by the trial court. When considering whether a jury instruction on a lesser-included offense should be given, we apply a two-prong text. Irving v. State, 176 S.W.3d 842, 846 (Tex.Crim.App. 2005). A defendant is entitled to a lesser-included offense instruction in the jury charge if (1) the requested charge is a lesser-included offense of the offense charged, and (2) there is some evidence that if the defendant is guilty, he is guilty only of the lesser offense. Id. (citing Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005) and Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995) (en banc)). An offense is a lesser-included offense if (1) it is established by proof of the same or less than all of 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 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. Tex. Code Crim. Proc. Ann. Art. 37.09 (Vernon 1981). When reviewing a trial court's decision to deny a requested instruction for a lesser-included offense, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. Hayward, 158 S.W.3d at 478. More precisely, we examine the statutory elements of the charged offense as modified by the indictment and proceed to examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense. Id. We next examine the evidence actually presented to prove the elements of the charged offense to see if that proof also shows the lesser-included offense. Id. at 478-79. In other words, there must be some evidence from which a rational jury could acquit Reyes of aggravated assault with a deadly weapon while convicting him of the lesser-included offense of assault. See Hall v. State, 158 S.W.3d 470, 473 (Tex.Crim.App. 2005). When making this decision, we evaluate the evidence in the context of the entire record, but do not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. With regard to the first prong of the two-part test as applied in Irving, assault is not always a lesser-included offense of aggravated assault. 176 S.W.3d at 846. In Irving, the indictment alleged that the defendant stabbed the victim with a knife and the defendant requested an instruction for a lesser-included offense for assault based only on his wrestling and hitting the victim. The Irving court held that assault was not a lesser-included offense of aggravated assault with a deadly weapon because the conduct constituting the lesser-included offense for which the defendant requested an instruction was different from the conduct alleged in the indictment. Id. Thus we must first consider whether, in the present case, assault causing bodily injury is a lesser-included offense of aggravated assault. Here, the indictment alleged that Reyes committed the offense of aggravated assault with a deadly weapon when he used and exhibited a deadly weapon:a metal bar, that in the manner of its use and intended use was capable of causing death and serious bodily injury, and did then and there intentionally and knowingly cause bodily injury to Herbert Murillo, hereinafter referred to as complainant, by striking said complainant with said deadly weapon.Reyes subsequently asked for an instruction for the offense of simple assault stemming from the conduct of hitting the victim with his hands, which does not include his hitting the victim with the metal bar as the indictment alleges. A person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon 2003). A person commits the offense of aggravated assault if he commits the offense of assault and he (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a). Here, the indictment for the aggravated assault alleged that Reyes attacked the victim with a deadly weapon, the metal bar, and that Reyes caused the victim serious bodily injury by hitting him with the bar. However, like Irving, Reyes based his request for an instruction on conduct different from that alleged in the indictment and based on facts not required to establish the commission of the offense charged; striking the victim with hands is not a lesser-included offense of striking the victim with the metal bar. This offense therefore fails to meet the requirements of Texas Code of Criminal Procedure Article 37.09 because the same facts or less than the same facts required to prove the greater aggravated assault offense are not required to prove the simple assault offense. Irving, 176 S.W.3d at 846. Proof that Reyes hit the victim with his hands is not required to prove aggravated assault by hitting the victim with a metal bar. Assault by hitting a victim with hands may be a lesser-included offense of aggravated assault in some circumstances, but not as the greater offense was formulated and charged in the present case. Furthermore, a trial court is not required to instruct a jury on a lesser-included offense where the conduct establishing the lesser-included offense is not part of the conduct charged in the indictment. Id. For the reasons stated above, Reyes was not entitled to a lesser-included offense instruction and thus the trial court did not err in failing to instruct the jury.