## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

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M E L V I N C H A R L E S S W E E D , J R . , A p p e l l a n t

v . T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E F I R S T C O U R T O F A P P E A L S

H A R R I S C O U N T Y

J O H N S O N , J . , f

i l e d a c o n c u r r i n g o p i n i o n i n w h i c h C O C H R A N , J . , j o i n e d .

C O N C U R R I N G O P I N I O N
I join the opinion of the Court. During the proce eding s in the trial court, appellant reque sted

a jury instruction on theft, and the state reque sted an instruction on ag g rava ted assault. Both reque sts

wer e denied by the trial court. As the opinion of the Court corr ectly finds, theft is a lesser- included of agg rava

ted robbery , as pl ead in the i nstant indictment, and the instructi o n o n t h eft should have been g iven. I conclude that, as plead, ag g rava ted assault is also a less er-included offe nse of
ag g rava ted robber

y , and an instruction on ag g rava ted assault should have been g iven, as reque sted2

by the state. Texas Penal Code sec. 29.03 de fines ag g rava ted robbe ry . (a) A person commits an offe nse if he commits robber y as define d in Section 29.02, and he: (1) . . .; or (2) use s or exhibit s a dea dly wea pon. Section 29.02 define s robber y . (a) A person commits an offe nse, if, in the course of committing theft as define d in Chapter 31 and with intent to obtain or maintain control of the proper ty , he: (1) . . .; or (2) intentionally or knowing ly threa tens or place s another in fea r of imminent bodily injury or dea th. Combini ng the two, a r easona ble summary

of ag g rava ted robbe ry

is that a person, in the course of committing thef t, intentionally

or knowing ly threa tens or place s another in f ear of imminent bodily injury or dea th, and uses or e x hibits a deadly

wea pon. Texas Penal Code section 22.02 def ines ag g rava ted assault. (a) A per son commits an offense if the person commits a ssault a s define d in Section 22.01 and the pe rson: (1) . . .; or (2) use s or exhibit s a dea dly wea pon during the commission of the assault. Section 22.01 define s assault. (a) A per son commits an offense if the per son: (1) . . .; (2) intentionally or knowing ly threa tens another with imminent bodily injury , . . .; or (3) . . ..
A re asonable summary

of ag g rava ted assault is that a pe rson, intentionally

or knowing ly

threa tens another

with immi nent bodily

injury , and uses or e x hibits a deadly

wea pon during the commission of the assault.3

Both ag g rava ted robber

y and ag g rava ted assault require that a person intentionally or k n o wing ly threa tens another with imminent bodily injury and uses or exhibi ts a deadly wea pon during the commission of the offe n s e. The only element not share d is that ag g rava ted robber y require s a theft. Thus, ag g rava ted assault is a lesser- included offe nse of ag g rava ted robber y beca use “it is established by proof of the same or less than all the fac ts require d to establish the commission of the off ense c harg ed.” T E X
. C O D E C R I M
. P R O C . art. 37.09(1)

. As the Court’s opinion notes, there must be evidenc e in the rec ord that would permit a jury

to rationally find that, if the defe ndant is g uilty , he is g uilty only of t h e l esser -included offe nse. Guzman v. State , 188 S.W .3d 185, 188-89 (Tex

. Crim. Ap p . 2 0 0 6 ). And t he threshold for such a showing is low: “Any

thing more than a scintilla.” Bignall v. State , 887 S.W .2d 21, 23 (Tex. Crim. App. 1994). The evidenc e in this case shows that appellant approa ched the complainant within three fee t while waving a knife at che st level. The knife was shown a t tr ial to be a de adly wea pon, and

a rea sonable jury could find that waving that knife at the complainant at chest level, from a distance of three fee t, constit u ted “intentionally or knowing ly threa ten[ing] another with imminent bodily injury .” Thus, the evidenc e in the rec ord supports the g iving of an instruction on ag g rava ted assault as a le sser-inc luded offe nse of a g g rava ted robbe ry .

Filed: Oc tober 19, 2011 Publis h