IN THE

TENTH COURT OF APPEALS

No. 10-11-00221-CR

JOHN MARK WALKER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 10-02902-CRF-361

MEMORANDUM OPINION

In this appeal, appellant, John Mark Walker, challenges his conviction on two 

counts of aggravated assault with a deadly weapon, a second-degree felony. See TEX.

PENAL CODE ANN. § 22.02(a)(2) (West 2011). In five issues, Walker argues that: (1) the 

evidence supporting Count 1 of the indictment is legally and factually insufficient; (2) 

there are material variances between the evidence presented in support of Counts 1 and 

2 and that which was alleged in Counts 1 and 2 of the indictment; and (3) the trial court 
Walker v. State Page 2

erred in refusing to include an instruction in the charge as to the lesser-included offense 

of assault causing bodily injury. We affirm. 

I. BACKGROUND

This case pertains to an altercation between Walker and Anitra and Reneisha 

Bradford that transpired during the early morning hours of April 30, 2010. Anitra 

testified that she lives in a rental house with her four children, Reneisha, Stesia, Esau 

and Jacob. At the time of the altercation, Anitra was dating Walker, and Walker 

frequently spent the night at Anitra’s house.

Several witnesses testified that Anitra did not have any electricity in the house on 

the night in question because the power company had turned off her services. That 

night, Walker came over to Anitra’s house to visit. Anitra recalled that she and Walker 

got into an argument over the electric bill. Anitra alleged that Walker spent money on 

drugs without offering to help with the electric bill. Shortly thereafter, an altercation 

ensued, and apparently, the altercation became physical.

Anitra asserted that she went outside to get some fresh air, but Walker “snatched 

her over a chair” and dragged her back in the house. However, she admitted that she 

did not initially tell police that Walker “snatched her over a chair” and dragged her 

back in the house because she wanted to keep Walker from getting in trouble. Anitra 

testified that her arm was hurt as a result of the initial altercation. She further testified 

that Walker “kept saying we [are] all going to die,” “I’m going to drown you,” “I’m 

going to kill you,” I’m going to kill your kids,” “I’m going to kill myself,” and “we’re 

not leaving until we’re both 6 feet under.”
Walker v. State Page 3

Reneisha, Anitra’s eldest daughter, testified that she shared a room with her 

sister, Stesia. All of the children had gone to bed when the argument between Anitra 

and Walker began. However, they were soon awakened by the yelling and screaming. 

Reneisha recalled hearing Walker tell Anitra that he was going to kill her and that they 

all were going to die. During the argument, Stesia walked into the living room and saw 

Anitra on the floor with Walker over her. Stesia was told to mind her own business and 

go back to her room. Thereafter, Stesia and Reneisha gathered Jacob and Esau and went 

out of a bedroom window. Once outside, the kids split up and ran to different 

neighbors, imploring them to call the police.

Anitra’s next-door neighbor, Yolanda Dozier, recalled waking up around 

midnight on the night in question. Dozier testified that her daughter was upset because 

she could hear Anitra and Walker fighting next door. Dozier then went to her 

daughter’s room, where she could hear Anitra crying and “screaming like, Stop John. 

Stop. What’s wrong with you[?] Why are you doing this[?]” Shortly thereafter, Dozier

heard Reneisha knocking on the front door. Dozier opened the front door to see 

Reneisha, who was crying and asked to use the telephone to call the police because 

Walker was hurting her mother. Dozier allowed Reneisha to use the telephone. 

Bryan Police Officer Reggie Arnold responded to the disturbance call. However, 

by the time the police arrived, Walker was no longer at the house. Officer Arnold 

testified that another officer informed him that “the male that was causing the 

disturbance had already left the scene, heard him climbing over a fence as [the officer] 

walked up to the house.” Anitra asserted that Walker instructed her to go talk to the 
Walker v. State Page 4

police while he fled through a back window. Upon arriving, the police secured the 

house and questioned Anitra. Noticing no visible injuries and observing the inside of 

the house to be in order, the police left, but they assured the family that they would be 

riding around searching for Walker. In any event, the family decided to “camp out” in 

the living room of the house and to barricade the front door with furniture.

Walker returned to the house later that night. Walker apparently opened the 

front door using Anitra’s keys and then moved the furniture to gain entrance to the 

house. Stesia noticed that Walker had returned and tapped Anitra, who woke up and 

went to speak with Walker in the kitchen. Witnesses testified that Anitra told Walker to 

leave and requested that he return the keys to the house and Anitra’s cell phone. 

According to Anitra, Walker was angry because he believed that she had called the 

police on him. Walker repeated his earlier threat that: “We [are] all going to die 

tonight.” At that point, Walker allegedly started swinging a knife at Anitra.

As Anitra and Walker were fighting, the children remained in the living room. 

At some point, Anitra screamed for the children to run. Both Stesia and Reneisha 

testified seeing Walker holding a box cutter to Anitra’s neck, though the girls used the 

terms “box cutter” and “knife” interchangeably in their testimony and admitted that it 

was dark in the house due to the lack of electricity.1 Stesia ran to a neighbor’s house, 

but Reneisha chose to stay and help Anitra. Seeing Walker with a weapon to Anitra’s 

neck, Reneisha yelled at Walker not to hurt her mother. Walker responded by saying, 

 

1 Furthermore, Walker’s father testified that Walker worked for him laying carpet and that 

Walker carried two knives on his person with one of them being a box cutter or a “utility knife.”
Walker v. State Page 5

“Why y’all trying to do this to me, why you-all trying to play me[?]” According to 

Reneisha, Walker then rushed at her and began punching her in the face, which resulted 

in Reneisha falling on the kitchen floor.

When she saw Walker attacking Reneisha, Anitra tried to pull Walker off of 

Reneisha and cried out “Mark, you [are] going to kill her, you know, stop, telling him to 

stop and . . . that’s my baby . . . .” In response to Anitra’s efforts, Walker resumed 

punching and choking Anitra. 

While Walker focused his efforts on Anitra, Reneisha picked up a knife she saw 

on the floor and started stabbing Walker in the side. Reneisha testified that she did not 

know where the knife came from but that she used it to stop Walker from hurting her 

mother.

Though he slowed a bit after being stabbed, Walker continued to attack Anitra. 

After stabbing Walker in the side, Reneisha ran to Dozier’s house next door with the 

knife in hand. When Reneisha made it to Dozier’s house, Dozier and her husband took 

the knife from Reneisha and helped her in the house. Dozier observed that Reneisha 

had numerous cuts all over her body and that she was bleeding. Dozier denied that the 

cuts looked like scratches. The police were called once again, and while on the 

telephone, Dozier and her family could hear Anitra screaming for help.

Anitra described that Walker continued to be upset once Reneisha left. Anitra 

recalled that Walker “slammed me on my head. Like one of them wrestlers where you 

turn them upside down and wham.” In addition, Anitra alleged that Walker wrapped 

the cord from the refrigerator around her neck. Eventually, Walker’s attack of Anitra 
Walker v. State Page 6

stopped when he apparently lost consciousness from the earlier stabbing. Anitra 

“scooted” herself out from under Walker and crawled to Dozier’s house next door. 

When Anitra arrived at Dozier’s house, she was wet, crying, and visibly bleeding from 

the forehead. In addition, Anitra complained that her arm hurt.

When the police arrived, they noticed that Reneisha and Anitra, in particular, 

were visibly shaken. Officer Arnold noted that Reneisha appeared to have serious 

injuries that required stitches, though she declined to have her wounds stitched up out 

of fear. Officers noticed that Reneisha had a deep cut on her left side and scrapes and 

cuts all over her face, body, and thighs that were likely caused by a knife. Officers also 

opined that the knives allegedly used in this altercation could have caused death or 

serious bodily injury.2 Officers also noticed that Anitra suffered injuries to her neck, 

shoulder, forehead, and side that were consistent with defensive injuries from a knife 

attack and from strangulation. Both Anitra and Reneisha were taken to the hospital for 

treatment. 

Police officers proceeded carefully into Anitra’s house. When they got inside 

they saw: “Blood on the floor, and as soon as you walk in and go to the right was the 

kitchen and there was a refrigerator that was pulled out, and I saw the Defendant 

[Walker] on the floor in a pool of blood.” Police officers looked throughout Anitra’s 

house for a box cutter, but only knives were recovered. Walker was subsequently 

 

2 According to Bryan Police Officer Aaron Arms, the deep cut on Reneisha’s left side was a 

“pretty deep cut on the left side of her body. It was about 5 inches long, and it was real narrow.” Officer 

Arms opined that the injuries sustained by Reneisha were likely caused by a knife. Bryan Police Officer 

Reggie Arnold stated that investigators found a broken knife on the kitchen floor that had a jagged blade. 

Officer Arnold testified that, based on his training and experience, Reneisha’s wound to her left side was 

consistent with being stabbed by the broken knife found on the kitchen floor.
Walker v. State Page 7

transported to the hospital for treatment. Walker could not immediately communicate 

because of his injuries. However, once Walker’s condition improved, police officers 

interviewed Walker and later arrested him. 

Walker testified on his own behalf during the guilt-innocence phase of trial. 

Walker stated that he had lived in the house with Anitra for three months. He disputed 

Anitra’s testimony regarding the events leading up to the altercation. With regard to 

the electric bill, Walker testified that he had given the landlord some money to pay for 

the electric bill and that he planned to give the landlord more money later in the week. 

Walker asserted that he did not attack, try to hit, or start any trouble with Anitra or 

Reneisha. Instead, Walker asserted that Anitra became verbally aggressive with him. 

Walker denied that he and Anitra had a physical altercation during the initial incident, 

and he explained that he jumped out of the window prior to the arrival of the police to 

retrieve the children who had previously left the house. Walker did not return to the 

house until after the police left because he was afraid that Anitra would lose her HUD 

assistance if the police report stated that he also lived in the house.

Walker recalled that when he returned to the house, Anitra began yelling at him 

for no reason, and the next thing he remembered was Reneisha stabbing him in the left 

shoulder blade with no provocation. Walker denied yelling at anyone, and he testified 

that, in an attempt to steady himself, he grabbed the waists of both Anitra and Reneisha 

after he had been stabbed. Ultimately, Walker lost consciousness and was taken to the 

hospital for treatment. In his testimony, Walker knew of no reason why he was 

allegedly attacked by Anitra and Reneisha. Walker denied threatening to kill anyone 
Walker v. State Page 8

and asserted that Anitra and Reneisha’s injuries must have occurred from them using 

knives against him in the dark. 

At the conclusion of the evidence, the jury convicted Walker on both counts of 

aggravated assault.3 The judgments reflect that a deadly weapon finding was made as 

to both counts. In Count 1, which pertained to Reneisha, the jury assessed punishment 

at five years’ incarceration in the Institutional Division of the Texas Department of 

Criminal Justice (“TDCJ-ID”). In the second count, which pertained to Anitra, Walker 

was sentenced to ten years’ incarceration in the TDCJ-ID. The imposed sentences were 

ordered to run concurrently. Walker filed a motion for new trial, which was overruled 

by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal followed. 

II. SUFFICIENCY OF THE EVIDENCE

In his first two issues, Walker argues that the evidence supporting his conviction 

as to Count 1—the count pertaining to Reneisha—is legally and factually insufficient. 

Specifically, Walker asserts that the State did not present any evidence demonstrating 

that he “used a knife to cut Reneisha Bradford causing her bodily injury . . . .” We 

disagree.

A. Applicable Law

The Texas Court of Criminal Appeals, in Brooks v. State, 323 S.W.3d 893, 912 (Tex. 

Crim. App. 2010), abandoned the factual-sufficiency standard in criminal cases; thus, 

we need only consider the sufficiency of the evidence under the legal-sufficiency 

 

3 Prior to trial, the State abandoned the allegation that the deadly weapon used in the commission 

of these offenses was a box cutter or an unknown bladed instrument. Instead, the State proceeded only 

on the allegation that the deadly weapon was a knife.
Walker v. State Page 9

standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 

560 (1979).

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 

2712 (2012), the Texas Court of Criminal Appeals expressed our standard of review of a 

sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light 

most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 

13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, 

to weigh the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point 

directly and independently to the guilt of the appellant, as long as the 

cumulative force of all the incriminating circumstances is sufficient to 

support the conviction.” Hooper, 214 S.W.3d at 13.

Id.

Our review of “all of the evidence” includes evidence that was properly and 

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if 

the record supports conflicting inferences, we must presume that the factfinder resolved 

the conflicts in favor of the prosecution and therefore defer to that determination. 

Jackson, 443 U.S. at 326; 99 S. Ct. 2793. Furthermore, direct and circumstantial evidence 

are treated equally: “Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to 

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the 

factfinder is entitled to judge the credibility of the witnesses and can choose to believe 
Walker v. State Page 10

all, some, or none of the testimony presented by the parties. Chambers v. State, 805 

S.W.2d 459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the 

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State, 

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically-correct jury charge, 

the State was required to prove beyond a reasonable doubt that Walker intentionally or 

knowingly caused bodily injury to Reneisha and used or exhibited a deadly weapon 

during the commission of the assault. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 

22.02(a)(2) (West 2011). A deadly weapon is “anything that in the manner of its use or 

intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B) 

(West Supp. 2012).

B. Discussion

Here, several witnesses testified that Walker threatened to kill Anitra and her 

family on the night in question. In addition, both Stesia and Reneisha saw Walker hold 

a box cutter or knife to Anitra’s throat, though Reneisha admitted that the only light in 

the kitchen was from outside and that “I never said he didn’t have the weapon, but I 

didn’t see it, I’m not for sure.” Reneisha noted that when she intervened to help her 

mother, Walker began punching her in the face. Then, Anitra tried to pull Walker off of 

Reneisha. While this was transpiring, Reneisha found a knife on the floor of the kitchen 

and stabbed Walker. 

When the police arrived at the scene, they noticed that Reneisha had several 

injuries that were bleeding and that resembled knife injuries. These injuries were 
Walker v. State Page 11

serious enough to leave permanent scarring and, according to Bryan Police Officer 

Reggie Arnold, were likely caused by the jagged blade on the broken knife found on the 

kitchen floor near where Walker collapsed. One injury, in particular, stood out to 

police. Bryan Police Officer Aaron Arms recalled that Reneisha sustained a deep cut on 

her left side which was five inches long, narrow, and likely caused by a knife. Police 

officers also testified that the numerous cuts and nicks on Reneisha’s body appeared to 

be the result of an assault with a knife. Furthermore, police searched the house for a 

box cutter and other weapons but only found a knife on the floor near Walker and the 

knife that Reneisha took when she ran to Dozier’s house. And finally, Officers Arnold 

and Garland Shawn Davis noted that, based on their training and experience, the knife 

allegedly used by Walker was capable of causing serious bodily injury or death.

On the other hand, Walker testified that he did not attack anyone on the night in 

question and denied using a knife to cut Reneisha. Instead, he asserts that Reneisha 

stabbed him with a knife without any provocation and alleges that Reneisha caused her 

own injuries when she stabbed him. However, Walker’s testimony is undermined by 

most of the testimony adduced at trial. In particular, Anitra testified that Walker was in 

possession of a knife when he returned to the house after the police had left and that he 

started swinging the knife at her face. 

In any event, as we noted earlier, it is within the province of the jury to assess a 

witness’s credibility and to resolve conflicts in the evidence. See Jackson, 443 U.S. at 319, 

99 S. Ct. at 2789; see also Chambers, 805 S.W.2d at 461. In convicting Walker for using a 

deadly weapon in the aggravated assault of Reneisha, the jury clearly believed that 
Walker v. State Page 12

Walker was the aggressor in this altercation and that he used a knife to cut Reneisha. In 

addition, the jury clearly disbelieved Walker’s explanation that Reneisha caused her 

own injuries when she stabbed him with a knife. Accordingly, we must defer to the 

jury’s resolution of conflicts in the evidence. Jackson, 443 U.S. at 326; 99 S. Ct. 2793; 

Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 

846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to 

a jury’s decision regarding what weight to give contradictory testimonial evidence 

because the decision is most likely based on an evaluation of credibility and demeanor, 

which the jury is in a better position to judge.”). 

Moreover, we do not believe that the State was required to present direct 

evidence showing that Reneisha actually saw Walker stab her with a knife. See, e.g., 

Thurman v. State, No. 01-02-00030-CR, 2002 Tex. App. LEXIS 7849, at **6-7 (Tex. App.—

Houston [1st Dist.] Oct. 31, 2002, no pet.) (not designated for publication) (finding 

evidence of knives recovered by the police, the victim’s testimony that the injury “felt” 

like a serrated knife cutting into his throat, and his scar sufficient to establish the wound 

was produced by a knife and not some other sharp-bladed instrument). As noted 

earlier, the jury is entitled to draw reasonable inferences from basic facts to ultimate 

facts, and each fact need not point directly and independently to the guilt of the 

appellant, as long as the cumulative force of all incriminating circumstances is sufficient 

to support appellant’s conviction. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Hooper, 214 

S.W.3d at 13.
Walker v. State Page 13

Therefore, viewing the evidence in the light most favorable to the prosecution, 

we conclude that a rational juror could have concluded that the cumulative force of all 

the incriminating circumstances is sufficient to demonstrate that Walker stabbed 

Reneisha with a deadly weapon—a knife—on the night in question. See TEX. PENAL 

CODE ANN. §§ 1.07(a)(17)(B), 22.01(a)(1), 22.02(a)(2); see also Jackson, 443 U.S. 318-19, 99 S. 

Ct. at 2788-89; Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. Accordingly, we find 

that the evidence is sufficient to support Walker’s aggravated-assault-with-a-deadlyweapon conviction as to Count 1 of the indictment. See Jackson, 443 U.S. 318-19, 99 S. Ct. 

at 2788-89; see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13. Walker’s first two 

issues are overruled.

III. VARIANCE

In his third and fourth issues, Walker contends that there are material variances 

between the evidence presented and both counts of the indictment. Specifically, Walker 

argues that the testimony establishes that a box cutter was used to perpetrate the 

alleged crimes and that the State abandoned the language in the indictment pertaining 

to usage of a box cutter as to both counts. As such, Walker asserts that the evidence is 

insufficient to support his convictions.

A. Applicable Law

A “variance” occurs when there is a discrepancy between the allegations in the 

charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. 

Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a 

crime but has proven its commission in a manner that varies from the allegations in the 
Walker v. State Page 14

charging instrument. Id. A variance can be classified into three categories. First, a 

variance involving statutory language that defines the offense always renders the 

evidence legally insufficient to support the conviction. Johnson v. State, 364 S.W.3d 292, 

298 (Tex. Crim. App. 2012). Second, a variance involving a non-statutory allegation that 

describes an “allowable unit of prosecution” element of the offense may or may not 

render the evidence legally insufficient, depending upon whether the variance is 

material. Id. Finally, other types of variances involving immaterial non-statutory 

allegations do not render the evidence legally insufficient. Id. Essentially, we treat 

variance claims as a problem with the sufficiency of the evidence. Gollihar, 46 S.W.3d at 

246. 

A variance that is not prejudicial to the defendant’s substantial rights is 

immaterial. Id. at 248. In determining whether a defendant’s substantial rights have 

been prejudiced, we consider whether (1) the indictment, as written, informed the 

defendant of the charge against him sufficiently to allow him to prepare an adequate 

defense at trial, and (2) whether the prosecution, under the indictment as drafted, 

would subject the defendant to the risk of being prosecuted later for the same crime. Id.

B. Discussion

Based on our review of the evidence, we do not find a material variance between 

the evidence and the allegations contained in both Counts 1 and 2 of the indictment. 

We base this conclusion on the testimony adduced from several witnesses. In 

particular, Anitra stated that Walker swung a knife at her when he came back to the 

house after the police left. Though we recognize that Reneisha and Stesia—both minors 
Walker v. State Page 15

at the time of the incident—asserted at various times in their testimony that Walker 

used a box cutter in the altercation, both girls used the terms “box cutter” and “knife” 

interchangeably and admitted that they assumed the weapon was a box cutter because 

Walker worked laying carpet and usually carried a box cutter. However, later 

testimony from Walker’s father indicates that Walker’s assertion in this issue amounts 

to a distinction without a difference, especially considering Walker’s father referred to 

the box cutter that carpet layers typically carry on their person as a “utility knife.” See 

TEX. PENAL CODE ANN. § 46.01(7) (West Supp. 2012) (defining a “knife” as “any bladed 

instrument that is capable of inflicting serious bodily injury or death by cutting or 

stabbing a person with the instrument”); see also Marc v. State, 166 S.W.3d 767, 772 (Tex. 

App.—Fort Worth 2005, pet. ref’d) (analyzing the sufficiency of the evidence and 

finding references to a “knife,” “box cutter,” and a “razor” were not inconsistent); 

Robertson v. State, 175 S.W.3d 359, 364-65 (Tex. App.—Houston [1st Dist.] 2004, pet. 

ref’d) (finding no fatal variance in alleging the defendant used a knife in the 

commission of the offense rather than a “box-cutter knife”).

In addition, the record contains testimony stating that the injuries sustained by 

both Reneisha and Anitra were likely caused by a knife and that the knife used 

constituted a deadly weapon. In particular, Reneisha had a deep, narrow wound on her 

left side that police testified was likely caused by a knife with a jagged blade—the same 

knife that was found near Walker when police arrived. Furthermore, several law 

enforcement witnesses noted that no box cutters were found at the scene of the crime. 

And based on this evidence, we have already concluded in Walker’s first two issues that 
Walker v. State Page 16

the evidence is sufficient to support his convictions for aggravated assault with a 

deadly weapon. See Gollihar, 46 S.W.3d at 247-48 (noting that variances that are not 

prejudicial to the substantial rights of the defendant are “immaterial” and do not 

constitute insufficient evidence).

Accordingly, we conclude that the indictment sufficiently informed Walker of 

the charges against him to allow him to prepare an adequate defense as to both counts. 

Id. at 248; see Johnson, 364 S.W.3d at 298. Moreover, we do not believe that Walker was 

put at risk of being prosecuted later for the same crime by the inclusion of the word 

“knife,” rather than “box cutter.” See TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 

22.02(a)(2) (providing that a person commits the offense of aggravated assault if the 

person commits assault while using or exhibiting a deadly weapon); see Gollihar, 46 

S.W.3d at 248; Johnson v. State, 91 S.W.3d 413, 418 (Tex. App.—Waco 2002, pet. ref’d). 

As such, we do not find a material variance between the evidence and the allegations 

contained in the indictment. Walker’s third and fourth issues are overruled.

IV. LESSER-INCLUDED-OFFENSE INSTRUCTION

In his fifth issue, Walker argues that the trial court erred in denying his request 

for an instruction in the jury charge about the lesser-included offense of assault causing 

bodily injury as to Count 1 of the indictment. Walker suggests that the evidence does 

not demonstrate that he cut Reneisha with a knife. Instead, Walker asserts that the 

evidence only shows that he punched Reneisha. Thus, according to Walker, the 

evidence shows that he is only guilty of assault causing bodily injury to Reneisha.
Walker v. State Page 17

A. Applicable Law

The determination of whether a lesser-included-offense instruction requested by 

a defendant must be given requires a two-step analysis. Rousseau v. State, 855 S.W.2d 

666, 672-73 (Tex. Crim. App. 1993). The first step asks whether the lesser-included 

offense is included within the proof necessary to establish the offense charged. 

McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). We must compare the 

statutory elements and any descriptive averments in the indictment for the greater 

offense with the statutory elements of the lesser offense. See Ex parte Amador, 326 

S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Hall v. State, 225 S.W.3d 524, 535-36 (Tex. 

Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). This step 

is a question of law. Hall, 225 S.W.3d at 535.

The second step of the lesser-included-offense analysis is to determine if there is 

some evidence from which a rational jury could acquit the defendant of the greater 

offense while convicting him of the lesser-included offense. Guzman v. State, 188 S.W.3d 

185, 188-89 (Tex. Crim. App. 2006). The evidence must establish the lesser-included 

offense as “a valid rational alternative to the charged offense.” Segundo v. State, 270 

S.W.3d 79, 90-91 (Tex. Crim. App. 2008). We review all of the evidence presented at 

trial. Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005); Rousseau, 855 

S.W.2d at 673.
Walker v. State Page 18

B. Discussion

Assuming without deciding that Walker met the first prong in the lesserincluded-offense analysis, we focus our analysis on the second prong. We have already 

concluded that the evidence supporting the jury’s verdict as to Count 1 of the 

indictment is sufficient. Because of this conclusion, we cannot say that a rational jury 

could acquit Walker of the greater offense—aggravated assault with a deadly weapon—

while convicting him of the alleged lesser-included offense—assault causing bodily 

injury. See Segundo, 270 S.W.3d at 90-91; Guzman, 188 S.W.3d at 188-89. 

In addition, the Texas Court of Criminal Appeals has held that:

A defendant’s own testimony that he committed no offense, or testimony 

that otherwise shows that no offense occurred at all, is not adequate to 

raise the issue of a lesser-included offense. In Bignall v. State, we 

concluded, “if a defendant either presents evidence that he committed no 

offense or presents no evidence, and there is no evidence otherwise 

showing that he is guilty of a lesser-included offense, then a charge on a 

lesser-included offense is not required.” The evidence must establish that 

if a defendant is guilty, he is guilty only of the lesser[-]included offense.

Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (internal citations omitted). 

In his testimony, Walker denied committing any offense. In fact, he stated that 

he did not hurt Reniesha or Anitra and that he “never posed a threat to either one of 

them.” Because Walker denied committing any offense, and because we have already 

concluded that the evidence is sufficient to support his conviction for aggravated 

assault with a deadly weapon, we cannot say that the trial court abused its discretion in 

denying his request for an instruction in the jury charge on the alleged lesser-included 

offense of assault causing bodily injury. See Jackson v. State, 160 S.W.3d 568, 574 (Tex. 
Walker v. State Page 19

Crim. App. 2005) (stating that we review a trial court’s decision not to submit a lesserincluded-offense instruction for abuse of discretion); see also Segundo, 270 S.W.3d at 90-

91; Guzman, 188 S.W.3d at 188-89; Lofton, 45 S.W.3d at 652. Accordingly, we overrule 

Walker’s fifth issue.

V. CONCLUSION

Having overruled all of Walker’s issues, we affirm the judgment of the trial 

court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed November 29, 2012

Do not publish

[CR25]