No. 01-14-00280-CR

In the 

Court of Appeals 

For the 

First District of Texas 

At Houston 



No. 1376587

In the 262nd Criminal District Court 

Of Harris County, Texas 



LOUIS STREDIC 

Appellant 

V.

THE STATE OF TEXAS 

Appellee



STATE’S APPELLATE BRIEF 



DEVON ANDERSON

District Attorney 

Harris County, Texas 

MELISSA P. HERVEY

Assistant District Attorney 

Harris County, Texas 

State Bar Number: 24053741 

JAMIE BURRO

JAMES O’DONNELL

Assistant District Attorneys 

1201 Franklin Street, Suite 600 

Houston, Texas 77002 

Telephone: (713) 755-5826 

Fax Number: (713) 755-5809 

Hervey_Melissa@dao.hctx.net

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT

ACCEPTED

01-14-00280-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

1/13/2015 3:10:59 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/13/2015 3:10:59 PM CHRISTOPHER A. PRINE Clerk
i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of 

Appellate Procedure 39.1, the State requests oral argument only if appellant 

requests oral argument.

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), a 

complete list of the names of all interested parties, and the names and addresses of 

all trial and appellate counsel, is provided below:

Complainant or Victim:

Lesley Thomas

Counsel for the State:

Devon AndersonDistrict Attorney of Harris County

Melissa P. HerveyAssistant District Attorney on appeal

Jamie Burro; James “Jim” O’Donnell—Assistant District 

Attorneys at trial

Harris County District Attorney’s Office

1201 Franklin Street, Suite 600

Houston, Texas 77002

Appellant or Criminal Defendant: 

Louis Stredic
ii

Counsel for Appellant:

Cynthia Henley—Defense Counsel on appeal

7626 East Jordan Cove

Houston, Texas 77055

Ricardo N. Gonzalez—Defense Counsel at trial

7015 Gulf Freeway, Suite 215

Houston, Texas 77087

Jonathan “Jon” Parchman—Defense Counsel at trial

2002 Timberloch Place, Suite 200

The Woodlands, Texas 77380

Trial Judge:

Honorable Denise Bradley—Presiding Judge of the 262nd Criminal 

District Court

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE..................................................................................1

STATEMENT OF FACTS ........................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................6
iii

REPLY TO APPELLANT’S SOLE POINT OF ERROR.........................................6

I. STANDARD OF REVIEW AND APPLICABLE LAW REGARDING JURY 

CHARGE ERROR........................................................................................7

II. THE STATE AND THE DEFENDANT HAVE DIFFERING OBLIGATIONS TO 

DEMONSTRATE THAT THEY ARE ENTITLED TO THE SUBMISSION OF 

THEIR REQUESTED LESSER-INCLUDED-OFFENSE INSTRUCTIONS ...........8

III. THE TRIAL COURT DID NOT ERR BY GRANTING THE STATE’S 

REQUEST FOR A JURY INSTRUCTION ON THE LESSER-INCLUDED 

OFFENSE OF ROBBERY BY THREAT ........................................................12

CONCLUSION AND PRAYER .............................................................................15

CERTIFICATE OF COMPLIANCE.......................................................................16

CERTIFICATE OF SERVICE ................................................................................17

INDEX OF AUTHORITIES

CASES

Almanza v. State, 

686 S.W.2d 157 (Tex. Crim. App. 1984)...............................................................8

Barrios v. State, 

283 S.W.3d 348 (Tex. Crim. App. 2009)...............................................................7

Casey v. State, 

215 S.W.3d 870 (Tex. Crim. App. 2007)...............................................................7

Goad v. State, 

354 S.W.3d 443 (Tex. Crim. App. 2011).........................................................8, 10

Grey v. State, 

298 S.W.3d 644 (Tex. Crim. App. 2009)...................................... 6, 11, 12, 13, 14

Irving v. State, 

176 S.W.3d 842 (Tex. Crim. App. 2005).............................................................10
iv

Jacob v. State, 

892 S.W.2d 905 (Tex. Crim. App. 1995).............................................................11

McKithan v. State, 

324 S.W.3d 582 (Tex. Crim. App. 2010)...............................................................9

Ngo v. State, 

175 S.W.3d 738 (Tex. Crim. App. 2008)...............................................................7

Oursbourn v. State, 

259 S.W.3d 159 (Tex. Crim. App. 2008)...............................................................8

Penaloza v. State, 

349 S.W.3d 709 (Tex. App.—

Houston [14th Dist.] 2011, pet. ref’d)..................................................................14

Reeves v. State, 

420 S.W.3d 812 (Tex. Crim. App. 2013)...............................................................8

Rice v. State, 

333 S.W.3d 140 (Tex. Crim. App. 2011).................................................... 8, 9, 10

Rousseau v. State, 

855 S.W.2d 666 (Tex. Crim. App. 1993).........................................................8, 10

Royster v. State, 

622 S.W.2d 442 (Tex. Crim. App. 1981)...............................................................8

Salazar v. State, 

284 S.W.3d 874 (Tex. Crim. App. 2009).............................................................10

Satchell v. State, 

321 S.W.3d 127 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d) ....................................................... 12, 13, 14

Schweinle v. State, 

915 S.W.2d 17 (Tex. Crim. App. 1996)...............................................................11

Skinner v. State, 

956 S.W.2d 532 (Tex. Crim. App. 1997).............................................................11

Wesbrook v. State, 

29 S.W.3d 103 (Tex. Crim. App. 2000).................................................................7

Young v. State, 

428 S.W.3d 172 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d) ....................................................................13
v

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 37.09..............................................................9, 13

TEX. PENAL CODE ANN. § 29.02(a)(2)..................................................................1, 13

TEX. PENAL CODE ANN. § 29.03(a)(2) .................................................................1, 13

RULES

TEX. R. APP. P. 9.4(g)................................................................................................. i

TEX. R. APP. P. 9.4(i)................................................................................................16

TEX. R. APP. P. 38.2(a)(1)(A)..................................................................................... i

TEX. R. APP. P. 39.1.................................................................................................... i
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State charged appellant by indictment with aggravated robbery by threat 

with a deadly weapon. (CR – 15);1see TEX. PENAL CODE ANN. § 29.03(a)(2); TEX.

PENAL CODE ANN. § 29.02(a)(2). In a Notice of Intent to Seek Punishment 

Enhancement, the State also alleged that appellant had previously been convicted 

of two felony offenses. (CR – 36). The jury found appellant guilty of the lesserincluded offense of robbery by threat. (CR – 74-75); (RR X – 149-51). On March 

13, 2014, appellant pled “true” to the State’s punishment-enhancement allegations,

and appellant and the State informed the trial court that the parties had reached an 

agreement regarding punishment; the trial court then found the State’s punishmentenhancement allegations “true” and sentenced appellant to confinement in the 

Texas Department of Criminal Justice, Correctional Institutions Division, for fifty 

years in accordance with the State’s and appellant’s agreement. (CR – 75-76); (RR 

V – 12). Appellant timely filed written notice of appeal on March 13, 2014. (CR –

78).

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1

The Clerk’s Record consists of one volume, hereinafter referenced as (CR – [page number]). 

The Court Reporter’s Record consists of six volumes, which will be referenced as (RR [I-VI] –

[page number]). State’s Exhibits admitted at trial will be referenced as (RR VI – SX [exhibit 

number]).
2

STATEMENT OF FACTS

Lesley Thomas traveled from Houston to Dallas to visit her family and 

friends, and to watch the Super Bowl, over the first weekend of February 2013. 

(RR IV – 12). To get to Dallas and back to Houston, Thomas used the Megabus 

express bus service, leaving her silver Nissan Altima sedan in the Megabus parking 

lot for the duration of her trip. (RR IV – 12-13); see (RR VI – SX 2-3). Shortly 

after midnight on February 5, 2013, Thomas exited the Megabus that she had 

ridden back to Houston, collected her luggage, and began walking to her car. (RR 

IV – 16-18). While en route to her vehicle, Thomas noticed appellant at a METRO 

municipal bus station across the street from the Megabus lot. (RR IV – 18); see

(RR VI – SX 5) . Thomas paid little mind to appellant, believing that he was a 

security guard because of his attire—a navy blue button-down shirt with a name 

badge and badge on it, and matching blue “work” pants—which appeared to 

Thomas to be a security guard uniform. (RR IV – 19).

Thomas reached her Altima and put her baggage in the trunk, and then 

began wiping condensation off of her car windows with an old sweater. (RR IV –

20). As Thomas walked around her car towards the driver’s door, she noticed that 

appellant had crossed the street and was “inching closer” to her. (RR IV – 20, 34-

35). Thomas observed appellant “reaching into his pocket” while he walked 
3

towards her, but Thomas remained unconcerned because she thought appellant 

might have been reaching for a cigarette. (RR IV – 20-21, 35).

Thomas reached the driver’s door of her Altima and, as she “grabbed [her] 

driver’s side door handle[,]...[appellant] came behind [her] and placed a gun in the 

lower part of her back.” (RR IV – 22, 36). Thomas panicked and began 

screaming, hoping to draw help from other people who were standing near the 

METRO station. (RR IV – 22). Still behind Thomas, appellant “placed his left 

arm across [her] chest to restrain [her],” knocking-off Thomas’s glasses in the 

process, and “told [Thomas] if [she] did not stop screaming he was going to blow 

[her] goddamn brains out.” (RR IV – 23, 36-37). Terrified that appellant would 

shoot her, Thomas was immediately quiet. (RR IV – 23). Appellant then forced 

Thomas to open her driver’s door, get into her car, and climb over the center 

console of the vehicle to get into the front passenger seat. (RR IV – 23, 37, 45). 

Appellant followed Thomas into her Altima, sitting in the driver’s seat of the car 

and keeping the gun “in [her] lower back” as she maneuvered to the passenger seat. 

(RR IV – 23-24, 45).

Once appellant and Thomas were both seated in Thomas’s vehicle, appellant 

demanded cash and credit cards from her. (RR IV – 24). Thomas gave appellant 

$140 in cash, and then gave him her entire purse. (RR IV – 24). Unsatisfied, 

appellant made Thomas put her car keys in the ignition and turn on the vehicle so 
4

that appellant could see how much gas was in the Altima’s gas tank. (RR IV – 25). 

Seeing that the gas tank was one-quarter full, appellant told Thomas to look away 

from him, and then threatened her, “[I]f you don’t get out of this car right now, I’m 

going to blow your goddamn brains out.” (RR IV – 25). Thomas rapidly exited 

her vehicle and ran to the METRO station across the street. (RR IV – 26). 

Appellant watched Thomas flee, and then drove away in Thomas’s Altima. (RR 

IV – 26).

Thomas told the bystanders at the METRO station that she had just been 

carjacked, and borrowed a cell phone from a stranger to call the police. (RR IV –

26). When several officers with the Houston Police Department (HPD) responded 

to Thomas’s location five or six minutes later, Thomas gave the officers the license 

plate number and a description of her Altima, a description of appellant, and her 

account of the robbery. (RR IV – 27, 39-40, 52, 57-62). The police put out a 

BOLO, or a “be on the lookout” call, over the police radio with Thomas’s 

descriptions of appellant and the Altima, and also reported that the Altima had 

been stolen. (RR IV – 53, 55). An officer then drove Thomas to a hospital where 

Thomas’s aunt worked, so that Thomas would have a means to get home and then 

into her residence with her aunt’s spare key. (RR IV – 28, 62).

Approximately seven hours later that morning, at 7:00 AM, a woman called 

the Alvin Police Department in Brazoria County to report that appellant, whom the 
5

woman knew, was “knocking on her door trying to gain access to her house.” (RR 

IV – 67, 74). Two Alvin police officers drove to the woman’s address and, upon 

their arrival, observed appellant backing a silver Nissan Altima away from the 

residence. (RR IV – 67-68, 74). One of the officers, Officer Foley, detained 

appellant and asked him for his driver’s license; appellant handed Foley another 

person’s license and told Foley that appellant did not have his own license with 

him. (RR IV – 68, 70, 74). Foley arrested appellant for driving without his 

driver’s license and placed appellant in the back of Foley’s patrol car. (RR IV –

68, 70). Foley then “ran” the license plate number of the Altima and discovered 

that HPD had reported the vehicle as stolen. (RR IV – 68-69). Foley transported 

appellant to the Alvin Police Department to book him and, while inventorying 

appellant’s personal possessions, found Thomas’s driver’s license in one of 

appellant’s pants pockets. (RR IV – 69). When Foley questioned appellant about 

Thomas’s license, appellant told Foley that Thomas was appellant’s wife. (RR IV 

– 69). Foley then contacted HPD to notify the department that he had appellant in 

custody and that he had apprehended appellant with a vehicle that HPD had listed 

as stolen. (RR IV – 69, 77). 

Officer Crank, an investigator in the HPD Robbery Division, obtained 

appellant’s name and date of birth from Alvin Police Department, and then

prepared a photographic array containing photographs of appellant and five other 
6

men. (RR IV – 77, 79); see (RR VI – SX 8). On February 6, 2013, Crank met

Thomas at her home and administered the photographic array to her. (RR IV – 29-

32, 78, 87); see (RR VI – SX 7). Thomas positively identified appellant “in a 

matter of seconds” as the man who had robbed her, and was “[e]xtremely 

confident” in her identification. (RR IV – 32, 46-47, 80, 82, 91); see (RR VI – SX 

8).

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SUMMARY OF THE ARGUMENT

In light of Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009), the trial 

court correctly instructed the jury on the lesser offense of robbery by threat, at the 

State’s request and over appellant’s objection, because robbery by threat is a 

lesser-included offense of aggravated robbery by threat with a deadly weapon, as 

charged.

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REPLY TO APPELLANT’S SOLE POINT OF ERROR

Appellant contends in his only complaint on appeal that the trial court erred

by including in the jury charge an instruction regarding the lesser-included offense 

of robbery by threat, over appellant’s objection at trial. Essentially, appellant 

contends that the State was not entitled to such an instruction because the record 

lacks evidence which establishes robbery by threat as a valid, rational alternative to 
7

the charged offense, per the second prong of the Royster-Rousseau test for lesserincluded-offense instructions. See (Appellant’s Brief – 11-13).

I. Standard of Review and Applicable Law Regarding Jury Charge Error 

A trial court’s composition of the jury charge, including the addition or 

omission of requested or necessary instructions, is reviewed on appeal for abuse of 

discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)

(finding that a trial court did not abuse its discretion by declining to submit a 

requested jury instruction). A trial court abuses its discretion only when its ruling 

lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 

879 (Tex. Crim. App. 2007). When a party alleges jury charge error, a reviewing 

court must first determine whether error was actually committed by the trial court. 

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If error is found in 

the jury charge, the appellate court must then determine whether the error resulted 

in sufficient harm to the accused to warrant reversal. Ngo v. State, 175 S.W.3d 

738, 743 (Tex. Crim. App. 2008).

The degree of harm which necessitates reversal depends upon whether the 

complaining party preserved the jury charge error. Ngo, 175 S.W.3d at 743. When 

the complained-of charge error was properly preserved—either by a specific 

request for a jury instruction or by an objection to the omission of the desired 

instruction from the jury charge—the record need only show that the defendant
8

suffered “some harm” for reversal to be warranted. Reeves v. State, 420 S.W.3d 

812, 816 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1984); see Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App. 

2008) (stating that a defendant must submit a proposed jury instruction or object to 

the lack of the requested jury instruction to preserve error on the issue). If error 

was not properly preserved, however, reversal is required only if the defendant 

shows that the error was “fundamental” and that he suffered “egregious harm”

thereby. Reeves, 420 S.W.3d at 816; Almanza, 686 S.W.2d at 171. 

II. The State and the Defendant have Differing Obligations to Demonstrate 

that they are Entitled to the Submission of their Requested LesserIncluded-Offense Instructions

While either the State or the defendant may request a lesser-included-offense 

instruction, the defendant has a more onerous task to prove that he is entitled to 

such an instruction. A defendant is entitled to an instruction on a lesser-included 

offense only when the defense fulfills both conditions of the two-part RoysterRousseau test. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); see 

generally Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); see also 

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). Under that test, the 

defendant must first request an instruction for a lesser offense that is actually a 

lesser-included offense of the crime charged in the indictment. Rice v. State, 333 

S.W.3d 140, 144 (Tex. Crim. App. 2011). This requirement is a purely legal 
9

question, asking whether all of the elements of the lesser offense are contained 

within those of the greater offense, and thus does not depend on the evidence 

produced at trial. Rice, 333 S.W.3d at 144; see also Hall v. State, 225 S.W.3d 524, 

531, 535 (Tex. Crim. App. 2007).

An offense is a “lesser included offense” of a greater 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. 

A court must “‘examine the elements of the lesser offense and decide 

whether they are functionally the same or less than those required to prove the 

charged offense[]’” before it may proceed with any evaluation of the amount and 

quality of the evidence introduced. Rice, 333 S.W.3d at 144-45 (quoting McKithan 

v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010)). As explained in Hall v. 

State, 225 S.W.3d 524, 531, 535 (Tex. Crim. App. 2007), a reviewing court 

engaged in this initial step must determine which lesser-included offenses, if any, 

are applicable to a given case based on the elements and facts of the greater offense 
10

as alleged in the charging instrument. Hall, 225 S.W.3d at 535. This cognatepleadings approach is the “sole test for determining in the first step whether a party 

may be entitled to a lesser-included-offense instruction.” Hall, 225 S.W.3d at 535.

An element of a lesser offense may be deduced from those of the greater offense. 

Salazar v. State, 284 S.W.3d 874, 880 (Tex. Crim. App. 2009). However, a trial 

court is not obligated to instruct the jury on a lesser-included offense if the conduct 

required to prove the lesser offense is not contained within the conduct alleged in 

the charging instrument. Irving v. State, 176 S.W.3d 842, 846 (Tex. Crim. App. 

2005).

Second, after a court concludes that the first prong of the Royster-Rousseau 

test has been satisfied, the defendant is entitled to a lesser-included-offense 

instruction only if the record supports the instruction. Rice, 333 S.W.3d at 144; 

Rousseau, 855 S.W.2d at 672-73. That is, the trial court must charge the jury on an 

applicable lesser-included offense only “if there is some evidence in the record 

which would permit a jury to rationally find that, if the defendant is guilty, he is 

guilty only of the lesser-included offense.” Id. A defendant is not entitled to an 

instruction on a lesser offense if the evidence merely raises the possibility of the 

lesser offense; rather, the evidence “must establish the lesser-included offense as a 

valid, rational alternative to the charged offense.” Goad, 354 S.W.3d at 446; Hall, 

225 S.W.3d at 536.
11

It is not enough that the jury may disbelieve crucial evidence pertaining to 

the greater offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 

1997). Instead, there must be some evidence directly germane to a lesser-included 

offense for the factfinder to consider before the instruction is warranted. Skinner, 

956 S.W.2d at 543. A lesser-included offense may be raised if evidence either 

affirmatively refutes or negates an element establishing the greater offense, or if 

the evidence on the issue is subject to two different interpretations, and one of the 

interpretations negates or rebuts an element of the greater offense. Schweinle v. 

State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). Thus, whether a defendant has 

fulfilled the second portion of the Royster-Rousseau test and, as such, is entitled to 

a jury instruction on a lesser-included offense must be determined on a case-bycase basis accordingly to the specific facts and evidence of the defendant’s case. 

Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim. App. 1995).

Conversely, when the State requests a lesser-included-offense instruction,

the State must satisfy only the first prong of the Royster-Rousseau test to be 

entitled to the instruction; that is, the State must show only that its requested 

instruction describes an offense that is actually a lesser-included-offense of the 

charged offense. See Grey v. State, 298 S.W.3d 644, 645- (Tex. Crim. App. 2009)

(overruling precedent to hold that the State is not bound by the second prong of the 

Royster-Rousseau test); Satchell v. State, 321 S.W.3d 127, 136 (Tex. App.—
12

Houston [1st Dist.] 2010, pet. ref’d) (relying on Grey to reject the defendant’s 

complaint that the trial court erred by granting the State’s request for a lesserincluded-offense instruction, observing that “to obtain a lesser-included offense 

instruction, the State need only show that its requested instruction describes a 

lesser-included offense of the charged offense.”). As the Texas Court of Criminal 

Appeals explained in Grey, permitting the State its requested lesser-includedoffense instructions without requiring the prosecution to meet the demands of the 

second prong of the Royster-Rousseau test empowers the State to “see that justice 

is done” by providing the factfinder with options to convict the defendant of a 

lesser offense, but without capitulating that the defendant is not guilty of the 

charged offense. Grey, 298 S.W.3d at 651. Further, granting the State such 

flexibility best serves society’s interest in convicting and punishing people who are 

guilty of crimes, given that “submission of the lesser-included offense will enhance 

the prospects of securing an appropriate criminal conviction for a defendant who is 

in fact guilty....” Id.

III. The Trial Court Did Not Err by Granting the State’s Request for a Jury

Instruction on the Lesser-Included Offense of Robbery by Threat

The record establishes that the State requested a jury instruction on the lesser 

offense of robbery by threat, and that the trial court agreed to include such an 

instruction in the jury charge over appellant’s objection. (CR – 70); see (RR IV –

96-98) (showing the prosecutor’s request, “Your Honor, we are requesting the 
13

lesser.”). Under Grey, the State was entitled to an instruction on that lesser offense 

if it established the first prong of the Royster-Rousseau test, only; that is, if the 

State was requesting an instruction for a lesser offense that was legally a lesserincluded offense of the charged offense. See Grey, 298 S.W.3d at 645-51

(concluding that, to avoid “plac[ing] undue burdens on the prosecutor” and to 

permit the prosecution to submit lesser offenses when the prosecutor believes such 

options such be available to the jury, the State is not bound by the second prong of 

the Royster-Rousseau test); Satchell, 321 S.W.3d at 136 (“[T]o obtain a lesserincluded offense instruction, the State need only show that its requested instruction 

describes a lesser-included offense of the charged offense.”)

For purposes of the first prong of the Royster-Rousseau test, it is clear that

robbery by threat is a lesser-included offense of aggravated robbery by threat with 

a deadly weapon because all of the elements of robbery by threat are contained 

within the elements of aggravated robbery by threat with a deadly weapon. See 

TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (stating that one offense is a lesserincluded offense of another crime if the lesser offense “is established by proof of 

the same or less than all the facts required to establish the commission of the 

offense charged[.]”; compare TEX. PENAL CODE ANN. § 29.02(a)(2) with TEX.

PENAL CODE ANN. § 29.03(a)(2); see also, e.g., Young v. State, 428 S.W.3d 172, 

176 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Penaloza v. State, 349 
14

S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Accordingly,

consistent with Grey, the State was entitled to its requested lesser-included-offense 

instruction on robbery by threat on that basis, alone, regardless of whether there 

was any affirmative evidence in the record that refuted or negated the deadly 

weapon element of the charged offense and, hence, established robbery by threat as 

a rational and viable alternative to aggravated robbery by threat with a deadly 

weapon, as charged. C.f. Grey, 298 S.W.3d at 646-51 (holding that the State was 

entitled to submission of a jury instruction on the lesser offense of simple assault, 

over the defendant’s objection, because that offense was a lesser-included offense 

of the charged offense of aggravated assault by causing bodily injury with a deadly 

weapon under the first prong of the Royster-Rousseau test); Satchell, 321 S.W.3d 

at 136 (affirming the trial court’s submission of the State’s requested jury 

instruction on possession of PCP, over the defendant’s objection, because that 

offense was a lesser-included offense of possession with intent to deliver PCP).

Thus, the trial court did not err in granting the State’s request for an instruction on 

the lesser-included offense of robbery by threat, and appellant’s arguments to the 

contrary lack merit.

Appellant’s sole point of error should be overruled.

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15

CONCLUSION AND PRAYER

For the foregoing reasons, the State respectfully submits that the trial court 

correctly instructed the jury on the lesser-included offense of robbery. Thus, the 

State respectfully prays that this Court will overrule appellant’s single point of 

error, and will affirm appellant’s conviction. 

Respectfully submitted,

DEVON ANDERSON

District Attorney

Harris County, Texas

 /S/ Melissa Hervey 

MELISSA P. HERVEY

Assistant District Attorney

Harris County, Texas

State Bar Number: 24053741

1201 Franklin Street, Suite 600

Houston, Texas 77002

Telephone (713) 755-5826

Fax Number (713) 755-5809

Hervey_Melissa@dao.hctx.net
16

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned 

attorney certifies that there are 3,270 words in the foregoing computer-generated 

document, based upon the representation provided by Microsoft Word, the word 

processing program that was used to create the document, and excluding the 

portions of the document exempted by Rule 9.4(i)(1). 

 /S/ Melissa Hervey 

MELISSA P. HERVEY

Assistant District Attorney

Harris County, Texas

State Bar Number: 24053741

1201 Franklin Street, Suite 600

Houston, Texas 77002

Telephone (713) 755-5826

Fax Number (713) 755-5809

Hervey_Melissa@dao.hctx.net
17

CERTIFICATE OF SERVICE

This is to certify that the undersigned counsel has directed the e-filing 

system eFile.TXCourts.gov to serve a true and correct copy of the foregoing 

document upon Cynthia Henley, appellant’s attorney of record on appeal, on 

January 13, 2015, at the following e-mail address, through the electronic service 

system provided by eFile.TXCourts.gov: 

cynthiahenley@yahoo.com

 /S/ Melissa Hervey 

MELISSA P. HERVEY

Assistant District Attorney

Harris County, Texas

State Bar Number: 24053741

1201 Franklin Street, Suite 600

Houston, Texas 77002

Telephone (713) 755-5826

Fax Number (713) 755-5809

Hervey_Melissa@dao.hctx.net