COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00039-CR

STEVEN DOUGLAS PRATT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

Appellant Steven Douglas Pratt appeals his conviction for felony assault2

on a family member by means of ―intentionally, knowingly, or recklessly 

 

1See Tex. R. App. P. 47.4.

2See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West 2011).
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imped[ing] the normal breathing or circulation of the blood by applying pressure 

to the throat or neck of Nikki Norman,‖ Pratt’s live-in girlfriend. In his sole issue, 

Pratt argues that the trial court erred by denying his request that the jury charge 

contain a lesser included offense instruction of misdemeanor assault.3 We will 

affirm.

II. BACKGROUND

After having barricaded herself in her apartment’s bathroom on 

November 11, 2011, at roughly 10:40 p.m., Norman called 9-1-1 to report a 

―domestic dispute.‖ Through tears and labored breathing, Norman explained that 

she was calling because Pratt had ―beat[en] [her] up.‖ Norman told the 9-1-1 

operator that she was attempting to leave with her ―baby‖ but could not, and that 

her mother, father, and brother had come to the apartment to help her leave but 

that Pratt had ―attacked‖ her father and brother. When the 9-1-1 operator asked 

her where her brother and father were at the time of her call, Norman explained 

that they were ―in there trying to detain him because he’s going nuts. He’s 

drunk.‖

According to his testimony at trial, City of Granbury Patrol Sergeant Alan 

Hicks responded to the 9-1-1 dispatch regarding Norman’s call. By Hicks’s 

account, when he arrived at Pratt’s apartment, he first encountered three men, 

one of them being Pratt. Hicks testified that Pratt had apparent injuries to his 

 

3See Tex. Penal Code Ann. § 22.01(a) (West 2011).
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face. Hicks averred that Pratt explained that Norman’s brother had assaulted 

him. Hicks then talked with Norman and noticed that she had ―red marks on the 

side of her face, and she had round red marks around her neck.‖ Hicks testified 

that these injuries appeared ―fresh.‖ Pictures of Norman’s injuries were 

published to the jury, and Hicks confirmed that the photos were taken shortly 

after he arrived at the apartment. Upon further investigation, Hicks said that he 

also discovered injuries to Norman’s chest. Hicks said that because Norman’s 

account of the events was that Pratt had choked her and that his initial 

investigation revealed injuries consistent with strangulation, coupled with Pratt’s 

―angry [and] intoxicated‖ demeanor, he arrested Pratt that night and charged him 

with ―assault family violence impede breathing [or] circulation.‖

Officer Justin McGuire of the Granbury Police Department testified that he 

also responded to the dispatch and that while at the apartment he also witnessed 

redness and abrasions on Norman’s face and neck. McGuire testified that the 

injuries were obvious and fresh. Hicks said that when he inquired of Norman 

how she had been injured, Norman said that Pratt had ―choked her.‖ McGuire 

further inquired whether Pratt’s actions had ―made it difficult for her to breathe.‖ 

Norman responded that it had. McGuire also testified that the injuries on 

Norman’s person were consistent with her having been choked.

Norman testified that she lived with Pratt and their daughter in the 

apartment. Norman explained that earlier that night she told Pratt that she was 
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going to run an errand. Pratt reacted by accusing her of adultery and she 

testified that when she began to leave, Pratt hit her. According to Norman, Pratt 

then ―got on top of [her] and started to choke‖ her. Explaining the incident 

further, Norman described how Pratt had ―put both of his hands around [her] 

neck and started to squeeze [her] throat.‖ Norman stated that she ―could not 

breathe.‖

After breaking free, Norman said that she ran toward the kitchen, but that 

Pratt ―pushed [her] again and got on top of [her] again, and -- with both hands‖ 

choked her. Norman said that Pratt’s conduct again caused her to lose her 

ability to breathe for ―about 15 to 20 seconds.‖ When asked whether she said 

anything to him during this time, Norman said ―No . . . I couldn’t speak.‖ Norman 

testified that she feared that she might die. By Norman’s account, Pratt repeated 

this behavior a third time: ―[H]e got right back on top of me and started to choke 

me again.‖ Norman said that she was finally able to break free by kicking Pratt in 

the genitals. From there she barricaded herself in the bathroom and called her 

mother. After Norman’s mother, father, and brother arrived, and after Pratt 

allegedly assaulted her brother, Norman called 9-1-1.

At the close of evidence, Pratt requested that the court’s charge include a 

lesser included offense instruction, ―removing the impeding the circulation or 

breath, and make it a simple family assault violence case.‖ The trial court denied 
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this request. The jury found Pratt guilty and sentenced him to twenty years’ 

incarceration. This appeal followed.

III. DISCUSSION

In his sole issue, Pratt argues that the trial court erred by denying his 

request that the jury charge include the lesser included offense of misdemeanor 

assault. We disagree.

A two-pronged test is used to determine whether a lesser included offense 

must be included in the jury charge when requested. A charge on a lesser

included offense is required if (1) the lesser included offense is included within 

the proof necessary to establish the charged offense and (2) there is some 

evidence that would permit a rational jury to find that, if the accused is guilty, he 

is guilty of only the lesser offense. Hall v. State, 225 S.W.3d 524, 526, 535 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. 

App.), cert. denied, 510 U.S. 919 (1993); Royster v. State, 622 S.W.2d 442, 446 

(Tex. Crim. App. [Panel Op.] 1981) (plurality op. on reh’g); see Tex. Code Crim. 

Proc. Ann. art. 37.09 (West 2006).

With respect to the first prong, an offense is a lesser included offense of 

another offense under Article 37.09(1) if the indictment for the greater inclusive 

offense either (1) alleges all of the elements of the lesser included offense or 

(2) alleges elements plus facts from which all of the elements of the lesser 

included offense may be deduced. Ex parte Watson, 306 S.W.3d 259, 273 (Tex.
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Crim. App. 2009). The resolution of the first prong is a question of law to be 

determined by looking at the elements and facts alleged in the charging 

instrument, not the evidence presented at trial. Hall, 225 S.W.3d at 535. The 

State concedes that the first prong is satisfied in this case. See Tex. Penal Code 

Ann. § 22.01.

In connection with the second prong of the inquiry, some evidence must 

exist in the record that would permit a jury to rationally find that if the accused is 

guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. 

State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 

672–73. The evidence must be evaluated in the context of the entire record. 

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). There must be some 

evidence from which a rational jury could acquit an accused of the greater 

offense while convicting him of the lesser included offense. Id. The court may 

not consider whether the evidence is credible, controverted, or in conflict with 

other evidence. Id. Anything more than a scintilla of evidence may be sufficient 

to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

Here, Pratt posits that ―a number of facts in the record . . . show much 

more than just a scintilla of evidence‖ that he did not choke Norman. Specifically, 

Pratt argues that because Norman did not seek medical attention on the night of 

the assault; because she was able to break free from Pratt’s assailment; because 

she was able to call her parents ―[i]mmediately after allegedly being choked;‖ 
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because she did not call the police until after her family arrived; and because she 

did not take photographs of large bruises that Norman testified appeared on her 

neck in the days following the incident, there exists more than a scintilla of 

evidence that Pratt did not choke Norman. But as the State responds, none of 

these points ―are directly germane to the issue‖ of whether Pratt was only guilty 

of the lesser included offense of misdemeanor assault.

Norman testified that Pratt repeatedly pushed her down and choked her. 

She described to the jury how on three different occasions during the incident, 

Pratt applied pressure to her neck using his hands to the point that she was 

either unable to speak, unable to breathe, or barely capable of maintaining 

consciousness. The pressure was repeated, continual, and forceful enough that 

Norman testified that she thought that she might die. Two officers testified that 

when they arrived at the apartment, Norman showed ―obvious‖ signs of trauma 

from strangulation and that it appeared to both of them that her wounds were

―fresh.‖ Photographs depicting these injuries that were taken when police arrived 

were published to the jury. Although affirmative evidence of the points Pratt now 

propounds might have further strengthened the State’s case that Pratt impeded

Norman’s normal breathing or circulation by applying pressure to her throat or 

neck, none of the points Pratt raises rationally support an inference that he did 

not choke Norman and that he is guilty of only the lesser included offense of 

misdemeanor assault requested by him. See Cavazos v. State, 382 S.W.3d 377, 
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385 (Tex. Crim. App. 2012) (―Meeting this threshold requires more than mere 

speculation—it requires affirmative evidence that both raises the lesser-included 

offense and rebuts or negates an element of the greater offense.‖). We overrule 

Pratt’s sole issue.

IV. CONCLUSION

Having overruled Pratt’s sole issue on appeal, we affirm the trial court’s 

judgment.

BILL MEIER

JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: October 17, 2013