No . 01
- 14
- 00 280- 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


D EVON A NDERSON District Attorney Harris County, Texas M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 J AMIE B URRO J AMES O’D ONNELL 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

CLERKi STAT EMENT 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 argume nt only if appellant requests oral argument.

IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule s of Appellate Procedure 38.1( a) and 38.2( a)(1)(A) , a complete list of the names of all inter ested 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 Attorn ey on appeal Jamie Burro; James “ Jim ” O’Donnell

— Assistant District Attorney s at trial Harris County District Attorney’s Office 1201 Franklin Street, Suite 600 Houston, Texas 77002 Appellant or C riminal D efendant: Louis Stredicii

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 Pl ace, Suite 200 The Woodlands, Texas 77380 Trial Judge:
Honorable Denise Bradley

— Presiding J udge 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

................................ ................................ ........ 6iii

REPLY TO APPELLANT’S SOLE POINT OF ERROR

................................ ......... 6
I. S TANDARD OF R EVIEW AND A PPLICABLE L AW R EGARDING J URY C HARGE E

RROR
................................ ................................ ........................ 7
II. T HE S TATE AND THE D EFENDANT HAVE D IFFERING O BLIGATIONS TO D EMONSTRATE THAT THEY ARE E NTITLED TO THE S UBMISSION OF THEIR R EQUESTED L ESSER - I

NCLUDED - O FFENSE I NSTRUCTIONS
........... 8
III. T HE T RIAL C OURT D ID N OT E RR BY G

RANTING THE S TATE ’ S R EQUEST FOR A J URY I NSTRUCTION ON THE L ESSER - I

NCLUDED O FFENSE OF R OBBERY BY T HREAT
................................ ........................ 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)

................................ ............................. 10iv

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)

................................ ................................ .... 13v

STATUTES

T EX
. C ODE C RIM
. P ROC
. A NN . art

. 37.09

................................ .............................. 9, 13 T EX
. P ENAL C ODE A NN
. § 29.02(a)(2 )

................................ ................................ .. 1, 13 T EX
. P ENAL C ODE A NN
. § 29.03( a )(2)

................................ ................................ . 1, 13

RULES

T EX
. R. A PP
. P. 9.4(g)

................................ ................................ ................................ . i T EX
. R. A PP
. P . 9.4(i)

................................ ................................ ................................ 16 T EX
. R. A PP
. P. 38.2( a)(1)(A)

................................ ................................ ..................... i T EX
. R. A PP
. P. 39.1

................................ ................................ ................................ .... iTO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE The State charged appellant by indictment with aggravated robbery by threat with a deadly w eapon . (CR

– 1 5 ); 1 see T EX
. P ENAL C ODE A NN
. § 29 .0 3 ( a )( 2 ) ; T EX
. P ENAL C ODE A NN
. § 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 lesser

included offense of robbery by threat

. (CR

– 74

- 75 ); (RR X

– 149

- 51 ). On March
13 , 201 4 , appellant pled “true” to the State’s p unishment

- enhancement allegations , and appellant and the State informed the trial court that the parties had reached an agreement regarding punishment; t he trial court then found th e State’s punishment

enhancement allegations “true” and sentenced appellant to confinement i n 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 ).

       

      

1 The Clerk’s Record consists of one volume, hereinafter referenced as (CR

– [page number]). The Cou rt 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 u sed 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

– S X 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

– S X 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

— w hich appeared to Thomas to be a security guard uniform. (RR IV

– 19). Thomas reached her Altima and put her ba ggage 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 walked3

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 drive r’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 w ho 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

con sole 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 so4

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 Polic e 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). Th e 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 Bra zoria County to report that appellant, whom the5

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 , up on their arrival, observed appellant backing a silv er 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 o wn 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 discovere d
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 p ockets. (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 th e 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 ). Office r Crank, an investigator in the HPD Robbery Division, obtained
app ellant’s name and date of birth from Alvin Police Department, and then prepared a photographic array containing photographs of appellant and five other6

men. (RR IV

– 77, 79); see ( RR VI

– S X 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

– S X 7) . Thomas positively identified appellant “ in a matter of seconds ” as the man who had robbed her , and was “ [e]xtremely confide nt ” in her identification

. (RR IV

– 32, 46

- 47, 80, 82, 91); see ( RR VI

– S X 8).

       

       SUMMARY OF THE ARGUMENT In light of Grey v. State , 298 S.W.3d 644 (Tex. Crim. App. 2009) , t he 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 o f aggravated robbery by threat with a deadly weapon, as cha rged.

       

      
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 regardi ng 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 to7

the charged offense , per the second prong of the Royster

- Rousseau test for lesser

included

- 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 necessar y 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.3 d 870, 879 (Tex. Crim. App. 2007) . When a party alleges jury charge error, a reviewing court must first determine whethe r 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 reco rd need only show that the defendant8

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 O bligations to Demonstrate that t hey a re Entitled to the Submission of their Requeste d Lesser
Included
- Offense I

nstruction s While e ither 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

- includ ed offense only when the defense fulfills both conditions of the two

- part Royster

Rousseau 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 als o Rousseau v. State , 855 S.W.2d 666 (Tex. Crim. App. 1993)

. Under that test, the
defendant must first request an instruction for a less er 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 legal9

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 differ s 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. T EX
. C ODE C RIM
. P ROC
. A NN . 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 offense10

as alleged in the charging instrument. Hall , 225 S.W.3d at 535. This cognate

pleadings 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 i nstrument. Irving v. State , 176 S.W.3d 842, 846 (Tex. Crim. App. 2005)

. Second, after a court concludes tha t the first prong of the Royster

- Rousseau test has been satisfied, the defendant i s entitled to a lesser

- included

- offense instruction only if the record supports the instruction. Rice , 3 33 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 whic h 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 lesse r 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 ele ment 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, w hether 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 c ase - by

case basis accordingly to the specific facts and evidence of th e 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 S tate 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 Sta te’s request for a lesser

included

- 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

- included

offense 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 provid ing the factfinder with option s 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 S t ate 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 defenda nt who is in fact guilty.... ” Id

. III. The Trial Cour

t 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 t o include such an
instruction in the jury charge over appellant’s objection. (CR

– 70); s ee (RR IV

– 96

- 98) (showing the prosecutor’s request, “Your Honor, we are requesting the13

lesser.”). U nder Grey , the State was entitled to a n instruction on th at 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 lesser

included 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 Royste r - Rousseau test); Satchell , 321 S.W.3d at 136 (“[T]o obtain a lesser

included 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, i t 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 w ith a deadly weapon

. See
T EX
. C ODE C RIM
. P ROC
. A NN . art

. 37.09 (1) (stating that one offense is a lesser

included 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 commi ssion of the offense charged[.]” ; compare T EX
. P ENAL C ODE A NN . § 29.02(a)(2) with T EX
. P ENAL C ODE A NN . § 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 , 34914

S.W.3d 709, 711 (T ex. App.

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

. Accordingly, consistent with Grey , the State was entitled to its requested lesser

- inc luded

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

was any affirmative evidence in the record that refute d or negate d the deadly weapon element of the charged offense and, hence, established robbery by threat as a ration al 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 l esser - 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 reques ted 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 th reat , and appellant’s arguments to the contrary lack merit.
A ppellant’s sole point of error should be overruled.

       

      15 CONCLUSION AND PRAYER For the foregoing reason s , 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 wil l affirm appellant’s conviction

. Respectfully submitted,

D EVON A NDERSON District Attorney Harris County, Texas

/ S / Melissa Hervey M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 1201 Franklin Street , Suite 600 Houston, Texas 77002 Telephone (713) 755

- 5826 F ax Number (713) 755

- 5809 Hervey_Melissa@dao.hctx.net16 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i) , the undersigned attorney certifies that the re 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 excl uding the portions of the document exempted by Rule 9.4(i)(1)

.

/ S / Melissa Hervey M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 1201 Franklin Street, Suite 600 Houston, Texas 770 02 Telephone (713) 755

- 5826 Fax Number (713) 755

- 5809 Hervey_Melissa@dao.hctx.net17 CERTIFICATE OF SERVICE This is to certify that the undersigned counsel has directed the e

- filing system eFile.TXCour ts.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 , 201 5 , at the following e

- mail address, through the electronic service system provided by eFile.TXCourts.gov: cynthiahenley@yahoo.com

/ S / Melissa Hervey M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 1201 Franklin Street , Suite 600 Hou ston, Texas 77002 Tel ephone (713) 755

- 5826 Fax Number (713) 755

- 5809 Hervey_Melissa@dao.hctx.net