## In The **Court of Appeals Seventh District of Texas at Amarillo** 

________________________ No. 07
- 20
- 00148
- CR

________________________ PEYTON WILSON , APPELLANT V. THE STATE OF TEXAS , APPELLEE

On Appeal from the 364th District Court Lubbock C ounty, Texas Trial Court No. 2019
- 418,334 ; Honorable William R. Eichman II, Presiding
February 25, 2021 

### MEMORANDUM OPINION
Before PIRTLE , PARKER , and DOSS, JJ.
Appellant, Peyton Wilson, appeals from his conviction by jury of the lesser

- included offense of aggravated assault with a deadly weapon 1 and the resulting court

- imposed

1 T EX

. P ENAL C ODE A NN

. § 22.02 (a)(2) (West 2020) . An offense under this section is a felony of the second degree.2 sentence of fifteen years of imprisonment. 2 Appellant challenges his conviction through four issue s. First, Appellant contends the trial court erroneously failed to instruct the jury on the law of self

- defense. Next, he contends the evidence is insufficient to support the verdict because the jury acquitted him of the only permissible theory of criminal conduct. By his third issue , Appellant co ntends he stands convicted of conduct protected by the Second Amendment to the United States Constitution and Article I, Section 23 of the Texas Constitution ; and, f inally, Appellant posits he was egregiously harmed by the inclusion of an inappropriate les ser - included offense. Having considered each issue, w e will affirm.

B ACKGROUND This case arises from events that occurred when twelve members of the Lubbock Police Department S WAT Team forcibly entered Appellant’s home t o execute a high

- risk , no - knock narcotics search warrant

. Prior to entry, t he officers were briefed that Appellant was dealing in chemically dangerous narcotics and that he “had access to at least a pistol in his b edroom

. ” The S WAT t eam members entered the home a round the noon hour . At the time , they were wearing clothing with “ POLICE ” printed on them as well as gas masks 3 and voice amplifiers . Each member of the SWAT team announced “police search warrant” loudly and repeatedly on entry. The S WAT t eam smashed two windows as a

2 A second degree offense is punishable by imprisonment for any term of not more than twenty years or less than two years and a fine not to exceed $10,000. T EX

. P ENAL C ODE A NN

. § 12.33 (West 2020 ).

3 One of the SWAT team officers testified the officers wore gas masks because they had received information that Appellant was under suspicion of possessing and dealing a dangerous narcotic.3 distraction 4 and broke the two front door s using a n entry tool. 5 A surveillance camera was seen mounted above the front entryway of the front door. 6
After entry into the home, officers kicked in Appellant’s closed bedroom door, the door hit Appellant and bounced back. At that point, Appellant stuck his arm out from behind the door and pointed a firearm in their direction. 7 The SWAT t eam member that acted as “point” that day testified he saw “an arm protrude from the doorway, and then the arm is holding a pistol with some kind of light or a l aser device on it. And then aiming it toward our general area . . . .” Another S WAT t eam member testified he saw “what looked like a gigantic hole of a pistol pointed at my face.” He fired his assault rifle and struck Appellant twice through the door, c ausing injury. These events occurred in less than two minutes

. Appellant was subsequently charged with aggravated assault of a public servant based on his conduct of pointing a firearm at the officers serving the search warrant . The matter was tried to a jury, after which the jury convicted Appellant of the lesser

- included offense of aggravated assault. The court entered an affirmative deadly

- weapon finding and sentenced Appellant as not e d.

4 One officer agreed the tool used to break the windows was a “ pry bar.” The window was broken to “get eyes in” or “create a distraction.”

5 The officer who entered the home first testified the home had a metal security screen door locked with a deadbolt and an entry door beyond that. He described these as “forti fication” measures.

6 One SWAT t eam member testified that during the pre

- entry briefing, he was informed that the residence had “live

- feed surveillance.”

7 A SWAT t eam member testified “immediately a pistol came through the opening of the doorway, a nd it was about head level with me and [another officer].” He later said the gun was pointed “[d]irectly at myself and [the other officer].” The officer testified he was “scared” when Appellant pointed the pistol “directly at [his] face.”4 A NALYSIS I SSUE O NE — S ELF - D EFENSE I NSTRUCTION By his first issue, Appellant argues h e was entitled to a jury instruction regarding self

- defense because the evidence showed that to protect himself, he pointed his firearm at individuals who forcibly broke into his home

. He maintained throughout trial, and continues to do so on appeal, that he did not know that the people entering his home were police officers.
We review alleged jury charge error in two steps

. Taplin v. State , No. 03

- 19

- 00257

- CR, 2020 Tex. App. LEXIS 82 43, at *5 (Tex. App.

— Austin Oct. 15, 2020 , no pet. ) (mem. op., not designated for publication). First, we determine whether error exists; and then, if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Id. (citing A rteaga v. State , 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005 ) ). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Taplin , 2020 Tex. App. LEXIS 8243, at *5 (citing Marshall v. State , 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh ’ g) (setting forth procedure for appellate review of claim of jury charge error ) )

. If the complaint about jury charge error was preserved in the trial court, “ then reversal is required if there was some harm to the defendant. ” Taplin , 2020 Tex. App. LEXIS 8243, at *5 (citing Marshall , 479 S.W.3d at 843 )

.
A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense. Taplin , 2020 Tex.5 App. LEXIS 8243, at *5

- 6 (cit ing Celis v. State , 416 S.W.3d 419, 430 (Tex. Crim. App. 2013) ). The defendant bears the burden of production with respect to a defense and the issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the def ense

. Taplin , 2020 Tex. App. LEXIS 8243, at *6 (citations omitted).

“ [A] defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational i nference that that element is true. ” Id. See Juare z v. State , 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (“The defendant bears the burden of showing that each element of the defense has been satisfied.”)

. In determining whether a defense is thus supported by the evidence, the court views the evidence in the light most favorable to the defendant ’ s requested jury instruction and relies “ on its own judgment, formed in the light of its own common sense and experience, as to the limits of rational infe rence from the facts proven .” Taplin , 2020 Tex. App. LEXIS 8243, at *6 (citations omitted).
A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect against the othe r ’ s use or attempted use of unlawful force. Jordan v. State , 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing T EX

. P ENAL C ODE A NN . § 9.31(a))

. A person is justified in using deadly force against another if he would be justified in using force, and he reasonably believes deadly force is immediately necessary to protect himself against the other ’s use or attempted use of unlawful deadly force. Id. (citing T EX

. P ENAL C ODE A NN

. § 9.32(a) )

. The evidence does not have to show that the victim was actually u sing or attempting to use unlawful deadly force because a person has the right to defend himself from apparent danger as he reasonably apprehends it. Id. (citing Hamel v. State , 916 S.W.2d 491, 4936 (Tex. Crim. App. 1996 ) ). “Reasonable belief” means a bel ief that would be held by an ordinary and prudent man in the same circumstances as the actor. T EX

. P ENAL C ODE A NN

. § 1.07(a)(42).

Self

- defense is a confession

- and

- avoidance defense requiring the defendant to admit to his otherwise illegal conduct. Jordan , 593 S.W.3d at 343 (citing Juarez v. State , 308 S.W.3d 398, 404 (Tex. Crim. App. 2010 ) ). He cannot both invoke self

- defense and flatly deny the charged conduct. Id. (citation omitted). In other words, the defendant would have to admit t o the use of deadly force against someone he reasonably believed was using or attempting to use unlawful deadly force against him. In that regard, Appellant conceded throughout trial that he pointed a gun at the men who entered his home, while he also mai ntained he did not know the men were police officers , and he now argues those facts entitled him to a jury instruction regarding self

- defense.
In support of his position, Appellant argues the uncontested evidence shows a dozen men knocked down two doors, broke out windows and kicked in and struck Appellant with his bedroom door. Appellant contends he was unaware that these men

were the police or that they were executing a search warrant . Appellant “blindly stuck his arm through a one

- foot opening and pointed a handgun toward one of these men.” That man then shot Appellant twice with an assault rifle. Appellant also points to other evidence he says supports his position including the fact that members of the SWAT t eam testified they forcibly ente red Appellant’s home, intending to surprise him with “shock and awe.” They all shouted “police search warrant” but did so while wearing gas masks that muffled their voices. The officers had trouble communicating with one another due to the commotion caus ed by the entry in to Appellant’s home. The officers also testified that7 someone in Appellant’s position c ould feel threatened, invaded, stressed, and justified in defending himself with a firearm if he did not know the men entering the residence were poli ce officers.
On appeal, Appellant argues that the jurors obviously believed Appellant did not know these men were law enforcement officers because they acquitted him of the greater offense of aggravated assault of a public servant and instead found him gu ilty of the lesser

- included offense of simple aggravated assault

. While we might speculate that this is the reason the jury acquitted Appellant of the greater offense of aggravated assault of a public servant, the jury’s reasoning and conclusion are of no consequence to the resolution of this issue because we must review the trial court’s decision on the basis of whether , at the time the trial court presented the charge to the jury, t he evidence presented would have support ed a rational inference that each element of self

- defense

were true

.
Th e State disagrees with Appellant’s contention that self

- defense was raised , arguing there was no evidence to support Appellant’s entitlement to a jury instruction

. 8 In fact, the State points to evidence that shows Appellant did not act in self

- defense. While Appellant’s roommate testified the home had been recently burglarized, the State notes Appellant had a television in his bedroom that was connected to a live

- feed surveillance vide o system on the outside of his home. The State further contends t his, along with evidence of the clothing worn by the officers and the announcements they made on

8 The record shows a mistake

- of

- fact instruction was provided in the jury charge.8 entering Appellant’s home , shows Appellant knew the people entering his home were police officers and not burglars.

Moreove r , as to the charge of aggravated assault of a public servant, Appellant is not entitled to a self

- defense instruction because he never admitted guilt as to the charged offense. See Mercer v. State , No. 02

- 16

- 00439

- CR, 2017 Tex. App. LEXIS 10088, at *11

- 12 (Tex. App.

— Fort Worth Oct. 26, 2017, pet. ref’d) (mem. op., not designated for publication). A s in Mercer , Appellant only admitted to committing aggravate d assault , but denied committing aggravated assault of a public servant because he maintained he did not know the people entering his home were police officers. Because Appellant failed to admit to an essential element of the offense, i.e., c ommitting agg ravated assault when he knew “the person assaulted is a public servant while the public servant is lawfully discharging an official duty,” Appellant “did not pass the threshold of admission that requires a court to provide a self

- defense instruction to the offense of aggravated assault of a public servant.” Mercer , 2017 Tex. App. LEXIS 10088, at *1 1 (citations omitted).

In addition , the State further argues self

- defense is only justified against a peace officer when it has been shown that the peace officer used excessive , unlawful force

a gainst the actor

. Because Appellant made no argument that the officers used greater force than necessary at trial or on appeal , he has not shown himself justly entitled to a self

- defense instruction to the charged offense

. In pertinent part, section 9.31(c) limits the right to use of force against a peace officer as follows:9 (c) [t] he use of force to resist arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer ’ s (or other person ’ s) use or attempted use of greater force than necessary.

Shadden v. State , No. 07

- 10

- 0331

- CR, 2012 Tex. App. LEXIS 4001 , at *5 (Tex. App.

— Amarillo May 18, 2012, no pet.) (mem. op., not designated for publication) (citing T EX

. P ENAL C ODE A NN . § 9.31(c)).
Appellant never made an argument or presented any evidence indicating that the officers used or attempted to use greate r force than necessary in executing the search warrant. While the evidence presented showed the circumstances were chaotic, there is no indication of any excessive force by the officers. Accordingly, Appellant was not entitled to an instruction concernin g self

- defense. Shadden , 2012 Tex. App. LEXIS 4001, at *7

- 8. See also Mercer v. State , 2017 Tex. App. LEXIS 10088, at *11

- 12

. We overrule Appellant’s first issue.

I SSUE T WO — S UFFICIENCY OF THE E VIDENCE A FTER A CQUITTAL ON G REATER O FFENSE Via his second issue, Appellant argues that the jury acquitted him of the only permissible theory of criminal conduct (aggravated assault against a public servant) and, had the jury been properly instructed regarding self

- defense, it would have acquitted him of ag gravated assault as well. He further contends the evidence is insufficient to support his conviction for aggravated assault.10 When determining whether there is sufficient evidence to support a criminal conviction, we consider the combined and cumulative force of all admitted evidence in the light most favorable to the verdict to determine whether, based on that evidence and the r easonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt. Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson v. Virginia , 443 U.S. 307, 318

- 19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979 ))

. Although the State must prove that a defendant is guilty beyond a reasonable doubt, the State ’ s burden does not require it to disprove every conceivable alternative to a defendant ’s guilt. Tate , 500 S.W.3d at 413. In a sufficiency inquiry, direct evi dence and circumstantial evidence are equally probative. Id. (citing Winfrey v. State , 393 S.W.3d 763, 771 (Tex. Crim. App. 2013 ) ).
The jury is the sole judge of credibility of the witnesses and weight to be attached to their testimony, and juries may dra w multiple reasonable inferences from the facts , so long as each inference is supported by the evidence presented at trial. Jackson , 443 U.S. at 319

. See Hooper v. State , 214 S.W.3d 9, 16

- 17 (Tex. Crim. App. 2007)

. The jury is not, however, allowed to draw conclusions based on mere speculation. Hooper , 214 S.W.3d at 16. Unlike a reasonable inference, speculation is insufficiently based on the evidence to support a finding beyond a reasonable doubt. Id. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict. Jackson , 443 U.S. at 326.
As charged in the indictment herein , a person commits aggravated assault on
a public servant by intentionally or kno wingly threatening a public servant with imminent bodily injury while using or exhibiting a deadly weapon during the commission of th at11 offense. See T EX

. P ENAL C ODE A NN

. § 22.01(a)(2) ; § 22.02(a)(2), (b)(2)(B) . A person commits “simple” aggravated assault by intentionally or knowingly threatening another with imminent bodily injury while using or exhibit ing a deadly weapon during the commission of the offense

. T EX

. P ENAL C ODE A NN . § 22.01(a)(2); § 22.02 (a)(2). Here, Appellant admitted h e pointed a firearm at one of the men who entered his home

— conduct which standing alone could constitute aggravated assault

. What Appellant did not admit was his knowledge that the person at whom he pointed the weapon was a police officer.
Appellant contends that the facts of this case lead to only two rational conclusions : (1) Appellant knew the S WAT t eam entered his home and he pointed a gun at one of the officers despite this knowledge or (2) Appellant did not know the people who entered his home were law enforcement personnel and he pointed a gun at a person he thought was breaking into his home. Appellant argues that because the jury acquitted him of aggravated assault on a public servant that negates the first rational conclusi on. He asserts that the remaining facts are insufficient to prove guilt based on the second rational conclusion because he would be protected by the law of self

- defense.
We disagree. A similar argument was made by the defendant in Harrell v. State , No. 03

- 18

- 00391

- CR , 2020 Tex. App. LEXIS 4131, at *12

- 13 (Tex. App.

—Austin May 28, 2020, no pet.) (mem. op., not designated for publication). There, like here, the defendant did not argue that the evidence failed to prove any element of aggravated assault. Id. Rather, he argued the evidence established that he was justified in committing the assault and maintained that the jury’s acquittals of him of the greater offenses of attempted capital murder, attempted murder, and aggravated assault on a public serva nt showed that the12 jury concluded the defendant did not realize that the people entering his home were police officers. Id. As such, he argued the evidence was insufficient to reject his justification defenses because the evidence demonstrated he was sho oting at “armed intruders invading [ his ] home” and he was justified in protecting himself, his mother, and his property. Id. at * 13.
The court noted that the defendant’s argument was “contingent on eliminating from consideration all the evidence demonst rating that police officers lawfully executing a search warrant

— rather than armed intruders

— were entering his home because, in [the defendant’s] view, it is inconsistent with the jury’s verdicts rejecting aggravated assault of a public servant and convicti ng him only of aggravated assault.” Id. But, the court stated, the “law does not bar inconsistent verdicts.” Id. (citing Hernandez v. State , 556 S.W.3d 308, 321 (Tex. Crim. App. 2017) (quoting Guthrie

- Nail v. State , 506 S.W.3d 1, 6 (Tex. Crim. App. 2015)); see United States v. Powell , 469 U.S. 57, 68

- 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984 ) ). Thus, inconsistent verdicts, even when based on the same evidence, do not require reversal on the ground of legal insufficiency. Harrell , 2020 Tex. App. LE XIS 41431, at *13

- 14 (citations omitted). A jury’s verdict should not be disturbed by appellate speculation or inquiry even when an inconsistent verdict might have been the result of compromise or mistake. Id. (citations omitted). We will therefore uphol d a jury’s verdict so long as the evidence supports the finding of guilt concerning aggravated assault and it supports the rejection of any justification defenses. Id. (citing Hernandez, 556 S.W.3d at 321).
Here, Appellant conceded , and the undisputed evidence showed , that he intentionally and knowingly threatened the officers with death or bodily injury by pointing13 his gun at them from behind his bedroom door, thereby exhibiting that deadly weapon in their direction . Th ose facts alone provi de sufficient evidence to support each element of the offense of aggravated assault. The fact that the jury acquitted Appellant of the greater offense of aggravated assault of a public servant does not negate that evidence. As the court concluded in Harr ell , ev en if the jury believed Appellant was subjectively unaware that the individuals entering his home were the police , thereby negating the mens rea for aggravated assault on a public servant, the jury could have concluded that such a belief was not reasonable under the circumstances , Harre l l , 2020 Tex. App. LEXIS 4131, at *17

- 18 ( citing R uffin v. State , 270 S.W.3d 586, 594

- 95 (Tex. Crim. App. 2008) ) , and found him guilty of aggravated assault as a result. The evidence here showed t he execution of th e warrant took place at noon , not during the night hours. The SWAT t eam members were dressed in clothing and vests with “POLICE” clearly printed on them. They announced their presence so loudly that a neighbor down the street heard the announcement. SWA T officers used a tool to break down the front door s and broke a window for a distraction , making noise that the jury could have concluded no burglar would have made . The evidence also showed Appellant’s home had been recently burglarized and the jury had before it evidence indicating the SWAT t eam’s entry was quite unlike a routine burglary, making it more likely that it was law enforcement entering the home rather than armed intruders

. Lastly, SWAT officers testified to finding a television in Appellant’s bedroom that appeared to show a live feed of events from cameras outside the home. The jury could have taken this as evidence showing Appellant knew it was the p olice who w ere entering his home. Because the jury acquitted Appellant of the greater offense and convicted him of the lesser offense, one might presume it did14 so as a compromise. A s an appellate court, we are not to speculate on the reasons for a jury’s verdict and will not disturb the decision when the evidence is sufficient to support it s verdict. Harrell , 2020 Tex. App. LEXIS 4131, at *13

- 14. Accordingly, w e find the evidence sufficient to support Appellant’s conviction of aggravated assault and over rule his second issue.

I SSUE T HREE — S ECOND A MENDMENT AND A RTICLE 1, S ECTION 23 OF THE T EXAS C ONSTITUTION In his third issue, Appellant argue s he was convicted of conduct protected by the Second Amendment and article 1, section 23 of the Texas Constitution

. 9 The State responds that Appellant failed to preserve this issue for appellate review. We agree.
Before presenting a complaint for appe llate review, it must be shown that the complaint was raised with the trial court by a timely request, objection, or motion that stated the grounds for the ruling with sufficient specificity to make the trial court aware of the complaint, and that the tria l court rule on the request, objection, or motion. T EX

. R. A PP

. P. 33.1( a)

. The preservation requirements that apply to a constitutional challenge depend on the nature of the right allegedly infringed. The Texas Court of Criminal Appeals has divided the se rights into three categories:

9 The Second Amendment to the United State Constitution provides “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. C ONST

. amend. II . Article 1, section 23 provides that every citizen has t he right to keep and bear arms in the lawful defense of himself or the State but that the legislature may regulate the wearing of arms, with a view to prevent crime. T EX

. C ONST

. art I, § 23

.15 (1) absolute, systemic requirements and prohibitions that cannot be waived; (2) rights of litigants that must be implemented by the system unless expressly waived; and (3) rights of litigants to be implemented upon request.
Roman v. State , 571 S.W.3d 317, 320 (Tex. App. 2018) (citing Ex parte Heilman , 456 S.W.3d 159, 162 (Tex. Crim. App. 2015) (quoting Marin v. State , 851 S.W.2d 275, 279 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State , 947 S.W.2d 262 (Tex. C rim. App. 1997)). “ Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with [Texas] Rule [of Appellate Procedure] 33.1(a). ” Roman , 571 S.W.3d at 320 (citing Mendez v. State , 138 S.W.3d 334, 342 (Tex. Crim. App. 2004 ) ).
Appellant’s complaint is one that is waivable in nature. The record before us does not show Appellant raised his complaint conc erning the Second Amendment or article 1, section 23 of the Texas Constitution with the trial court. Accordingly, he has waived this issue for our review. As such, w e resolve Appellant’s third issue against him.

I SSUE F OUR — E GREGIOUS H ARM D UE TO I NCLUSION OF L ESSER - I NCLUDED O FFENSE Through his last issue, Appellant argues that under the facts of this case, aggravated assault was not a valid rational alternative to aggravated assault of a public servant. Thus, he contends, the trial court should not have included an instruction permitting the jury to consider the lesser

- included offense of aggravated assault. We disagree.16 The Court of Criminal Appeals has established a two

- pronged test to determine the propriety of the inclusion of a lesser

- inclu ded offense instruction in the charge to the jury

. Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007) ; Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)

. First, the lesser

- included offense must be included within the proof necessary to establish the offense charged , and second, some evidence must exist in the record that would permit a jury to rationally find that if the defendant is guilty, he is guilty only of the lesser offense. Hall , 225 S.W.3d at 535

- 36 ; Skinner , 956 S .W.2d at 543 (citing Rousseau v. State , 855 S.W.2d 666, 673 (Tex. Crim. App. 1993))

. See Moore v. State , 969 S.W.2d 4 (Tex. Crim. App. 1998)

. However, when the State requests the lesser

- included offense instruction ( as occurred here ) it is only required to satisfy the first prong of the test and is not bound by the second. Grey v. State , 298 S.W.3d 644, 645 (Tex. Crim. App. 2009)

. See West v. State , No. 11

- 13

- 00298

- CR, 2015 Tex. App. LEXIS 11224, at *5 (Tex. App.

— Eastland Oct. 30, 2015, pet. ref’d) (mem. op., not designate d with publication) (citing Grey , 298 S.W.3d at 645).
The first step of our analysis is one of law. Hall , 225 S.W.3d at 535

. The Code of Criminal Procedure defines an offense as a lesser

- included offense if: (1) it is established by proof of the same or less than all 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 i nterest 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. See Hall , 225 S.W.3d at 536 ; Irving v. State , 176 S.W.3d 842, 84517 (Tex. Crim. App. 2005)

. Whether an offense falls within this definition does not depend on the evidence to be produced at trial b ut rather is performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser

- included offense. Hall , 225 S.W.3d at 535

- 36

. As set forth in our previous discussion, a person commits aggravated assault on
a public servant by intentionally or knowingly threatening a public servant with imminent bodily injury while using or exhibiting a deadly weapon during the commission of the

o ffense. See T EX

. P ENAL C ODE A NN

. § 22.01(a)(2); § 22.02(a)(2), (b)(2)(B). A person commits aggravated assault by intentionally or knowingly threatening another with imminent bodily injury while us ing or exhibit ing a deadly weapon during the commission of the offense of assault

. Id. at § 22.01(a)(2); § 22.02(a)(2). Aggravated assault requires proof of all of the same elements as aggravated assault on a public servant except the element that Appellant knew the victim was a public servant. Therefore, unde r the requisite analysis, aggravated assault is a lesser

- included offense of aggravated assault of a public servant. Because the State is not bound by the second prong of the analysis, we do not reach it. As such, we find the trial court did not err in i ncluding an instruction permitting the jury to consider the lesser

- included offense of aggravated assault in its charge to the jury. Finding no error, we do not reach the issue of harm. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)

. We resolve Appellant’s last issue against him.18 C ONCLUSION Having overruled each of Appellant’s issues, we affirm the judgment of the trial court.

Patrick A. Pirtle Justice
Do not publish.