Herbert Earl Green v. State

Affirmed and Memorandum Opinion filed February 28, 2006 Affirmed and Memorandum Opinion filed February 28, 2006. In The Fourteenth Court of Appeals _______________ NO. 14-05-00228-CR _______________ HERBERT EARL GREEN, Appellant V. THE STATE OF TEXAS, Appellee ________________________________________________ On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 996,518 ________________________________________________ M E M O R A N D U M   O P I N I O N Appellant, Herbert Earl Green, appeals his conviction for aggravated assault. In one issue, appellant contends that the trial court erred by denying his requested jury instruction on the lesser-included offense of assault. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background On June 3, 2003, appellant entered a barbershop and struck the complainant, a barber, with a crow bar. The complainant testified that two men walked in the barbershop. One man said he wanted a haircut and asked the complainant if he was ATwin.@[1] The complainant identified himself as ATwin,@ and the two men sat down. The complainant turned around to resume cutting the hair of one of his customers when one of the men, later identified as appellant, struck him in the back of the head with a crow bar. A struggle ensued. The complainant testified that he spun around and attempted to block the next blow with his arm but appellant hit him on the side. Appellant swung the crow bar again and the barber caught it in his left hand. During the struggle, appellant accused the complainant of sleeping with his girlfriend. The complainant testified that he did not know appellant, but that the mother of appellant=s child was dating his twin brother. The struggle lasted between two and four minutes, and the two men then left. II. Discussion In his sole issue, appellant contends that the trial court erred by denying his requested jury instruction on the lesser-included offense of assault. We apply a two-prong test to determine whether a defendant is entitled to a jury instruction on a lesser-included offense. Lofton v. State, 45 S.W.3d 649, 651 (Tex. Crim. App. 2001). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, some evidence must exist in the record that would allow a reasonable jury to find the defendant guilty only of the lesser offense. Id. The State concedes that assault is included within the proof necessary to establish the offense of aggravated assault. See Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001) (noting that misdemeanor assault is a lesser-included offense of aggravated assault). Therefore, we must determine whether there was evidence in the record from which a reasonable jury could find appellant guilty only of assault. See id. We must consider all of the evidence presented at trial in making this determination. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993)). A person commits aggravated assault if, in relevant part, he uses or exhibits a deadly weapon during the commission of an assault. See Tex. Penal Code Ann. ' 22.02(a) (Vernon Supp. 2005). A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon Supp. 2005). Accordingly, appellant is entitled to a jury instruction on the lesser-included offense of assault if there is some evidence from which a rational jury could conclude that appellant did not use or exhibit a deadly weapon. Appellant argues that there is some evidence that he did not use or exhibit a deadly weapon because (1) the State was unable to find the crow bar used to attack appellant, and (2) a witness who saw appellant enter the barber shop did not see appellant carrying a crow bar. However, here, a rational jury could not have inferred from the absence of evidence that no weapon was used. Although the witness testified that he did not see appellant with a crow bar, the same witness also stated that he heard what sounded like a piece of metal Aclank on [the complainant=s] head.@ In addition, three witnesses testified that the complainant=s injuries were consistent with the type of injury inflicted by a crow bar. Moreover, Ait is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; 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.@ Bignall, 887 S.W.2d at 24. Here, appellant did not testify or offer any evidence. A jury instruction on a lesser-included offense is not required if the defendant presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser-included offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). Accordingly, we overrule appellant=s sole issue. The judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed February 28, 2006. Panel consists of Justices Hudson, Fowler, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The complainant explained that he was frequently called ATwin@ because he has a twin brother.