### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON REMAND

NO. 03-07-00610- CR

Steven G rey, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-07 -14 4, H ONO RAB LE WI LLIAM H ENRY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
We withdraw the opinion and judg ment on rema nd filed Mar ch 2, 2010. Appellant Steven Gre y was trie d o n a n in d ic tm e n t a c c u s in g h im o f a g g r a v a ted assault. Over appellant’ s objection, the trial court instructed the jury on the lesser included offe nse of simple assault, and the jur

y convicted a

ppellant of the lesser offe nse. Following a rule first announc ed in Arevalo v. State , 943 S.W .2d 887, 890 (Tex. Crim. App. 1997), we held on orig inal submissi on that the tr i al co u rt reve rsibly err ed by char g ing the jury on the lesser included offe nse beca use there

was no evidenc e that appellant was g uilty only of the lesser offe nse. Grey v. State , 269 S.W .3d 785, 789 (Tex. App.—Au s t i n 2008). On the State’s petition for discretionar y revie w, the court ofcriminal appe als overr uled Arevalo , reve rsed this Court’s judgme nt, a nd rema nded the cause to us
t o addre ss appellant’ s two rema ining points of err or. Grey v. State , 298 S.W .3 d 6 4 4 , 6 5 1 (Tex. Crim. App. 2009).

I n point of err or two, appellant contends that the trial court did not have jurisdiction

to rende r a judgme nt of conviction for misdemeanor assault. When the jurisdiction of a district court is proper ly invoked to try a felony indictment, that court is authorized to proce ed to judgme nt on any lesser included offe nse supported by the evidenc e, even if the lesser offe nse i s a m i s d em eanor. See Tex. Code Crim. Proc. Ann. art. 4.06 (West 2005), art. 37.08 (West 2006); Cunningham v. State , 726 S.W .2d 151, 153 (Tex. Crim. App. 1987). The indictment in this cause alleg ed that appe llant

cause d bodily injury to the complainant b y s t ra n gl i n g her with his hand, and that this assault was ag g rava ted by appellant’ s use of his hand as a deadly wea pon. S ee T ex . Penal Code Ann. §§ 22.01(a) (1), .02(a) (2) (West Supp. 2009). The district court authorized appellant’ s conviction for misdemeanor assault if the jury found that he cause d bodily injury as alleg ed but that his hand was
not a deadly wea

pon. We held on orig inal submissi on that this lesser assault wa s included within the ag g rava ted bodily

injury assault alleg ed in the indictment. Grey , 269 S.W .3d at 788. We also held that the evidenc e supports appellant’ s conviction for the lesser offe nse. Id

. at 790. Acc ording ly , we further hold that the trial court had jurisdiction to rend er j u d gm ent on the jury ’s verdic t convicting appellant of misdemeanor bodily injury assault. Point of err or two is overr uled.
I n his third point of err or, appellant contends that the trial court err ed by ref using his
reque st for an instruction authorizing his conviction for offe nsive phy sical contac t. See Tex. Penal Code Ann. § 22.01(a) (3). A trial court must instruct on a lesser included offe nse, and there fore err s

2by ref

using to do so, only if there is evidenc e t hat would permit a jury to rationally find that the defe ndant is g uilty of the lesser included offe nse but not the g rea ter offe nse alleg ed in the indictment. Hampton v. State , 165 S.W .3d 691, 693-94 (Tex. Crim. App. 2005); Rousseau v. State , 855 S.W .2d 666, 672 (Tex. Crim. App. 1993). This rule was not al t er ed b y the court of criminal
appea ls’ opinion in this cause , which holds only that a trial c ourt has the discretion to char g e on a lesser included offe nse supported by the evidenc e even when t h e “gu i l t y only ” test is not met. See G rey , 298 S.W .3d at 649-50, a nd at 652 (He rvey , J ., concur ring ). On orig inal submissi on, we held that there was no evidenc e that appellant did not use his hand as a deadly wea pon and there fore n o ev i d en ce t h at he was g uilty only of simple bodily injur y as s au l t. Grey , 269 S.W .3d at 788-89. Simi larly , there is no evidenc e that appellant did not

cause bodily

injury to the complainant whe n he choke d her until she lost consciousness. See Tex. Penal Code Ann. § 1.07(a) (8) (West Supp. 2009) (def ining “bodily injury ”). For these rea sons, we ho l d t h at t h ere is no evidenc e that appellant was g uilty only of touching the complainant in an offe nsive manner . The trial court did not err by ref using the reque s t ed i n s truction. Point of error three is overrule d.

Following rema

nd, the Court notified the parties that they would be permitted to file supplemental briefs pertinent to appellant’ s second and third points of err or. Appellant filed a supplemental brief rea sserting all three of his orig inal points and adding a fourth. Appellant’s first point of er ro r was resolved ag ainst him by the court of criminal appea ls and is not befor e us. We have c onsidered a

ppellant’s supplementa l arg uments with reg ard to points of err or two and thre e. I n our original opini on on rema nd, we declined to addre ss appellant’ s new, supplemental point of

3err or. See Tex. R. App. P. 38.7. I n a motion for re hear ing, a ppellant urg es that the issue he raises in this suppl emental point was ur g ed in hi s orig inal brief on a ppeal, a lbeit as part of

his first point of er ror. We will addre ss the supplemental point.

Appellant complains that he was denied due proce ss be cause the trial court’s lesser included offe nse instruction permitted the jury to c onvict him of the lesser offe nse without finding that he eng ag ed in the conduct—stra ng ling the co m p l ainant with his hand—alleg ed in the indictment. The instruction authorized the jury to convict appellant of simple assault i f it found that he:
intentionally , k n o wi ng ly , or rec klessly cause [d] bodily injury , but did not use his hand as a deadly wea

pon during the commission of the offe nse, to Hea ther Dukes by strang ling he r.
Appellant asser

ts that this instruction direc ted the jury to convict him of the lesser offe nse if the jury found that he c aused bodily injury to the complainant, but did not strang le her with his hand. Appellant’s rea ding of the i nstruction overlooks the comma that follows “off ense” and thus separ ates “during the commission of the o ff en s e” fr o m “to Hea ther Dukes by strang ling her.” Although the instruction is p er h aps awkwa rdly worde d, we believe that the prepositional 1 phrase “to Hea ther Dukes by strang ling her” modifies the verb phrase “ca use[d] bodily injury .” So

rea d, the instruction authorized appellant’ s conviction for the lesser included offe nse if the jury found that appellant cause d bodily injury to the complainant by strang ling her with his h an d as

When we quoted the instruction on orig inal submissi on, we also omitted the comma. See Grey 1 v. State , 269 S.W .3d 785, 787 (Tex. App.—Austin 2008). 4alleg ed in the indictment, but that he did not use his hand as a deadly wea pon. The supplementa l 2 point of err or is overr

uled. The motion for re hear ing is ove rruled. T he judg ment of convic tion is affirmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med on Remand Filed: Apr il 8, 2010 Do Not Publish

This was also our r eading of the instruction on orig inal submissi on. See id . at 787 n.1. 2 5