Jeffrey Marlon Petersen v. State

Opinion issued June 7, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00740-CR

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Jeffrey Marlon Petersen , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Case No. 1263316

MEMORANDUM OPINION

A

jury convicted Jeffrey Marlon Petersen of aggravated assault against a public

servant and sentenced him to sixty years’ confinement. Petersen challenges his

conviction, arguing that the trial court improperly denied his request to instruct

the jury on resisting arrest as a lesser-included offense. We hold that the

trial court did not abuse its discretion by denying Petersen’s request for the

lesser-included-offense instruction. We therefore affirm the trial court’s

judgment.

Background

A

routine traffic stop for an expired registration sticker evolved into an

incident in which, according to the State, Petersen drew a gun on Officer E.

Garza. The State charged Petersen with aggravated assault against a public

servant, asserting that Petersen intentionally and knowingly threatened Garza, whom Petersen

knew to be a public servant, with imminent bodily injury by using and

exhibiting a firearm, while Garza was lawfully discharging an official duty. At

trial, Petersen objected to the jury charge, requesting that the trial court

submit resisting arrest to the jury as a lesser-included offense. The trial

court overruled that objection. The jury convicted Petersen of aggravated

assault against a public servant. Petersen pleaded true to one enhancement, and

the jury assessed punishment at sixty years’ confinement.

Lesser-Included-Offense Instruction

We review the trial court’s decision regarding inclusion of

a lesser-included offense in the jury charge for abuse of discretion. Brock

v. State , 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d);

see Jackson v. State , 160 S.W.3d 568, 575 (Tex. Crim. App.

2005) (holding that trial court did not abuse its discretion in declining to

submit lesser-included offense to jury). Resisting arrest with a deadly weapon is

a lesser-included offense of aggravated assault against a public servant if (1)

it is established by proof of the same or less than all the facts required to

establish aggravated assault against a public servant; (2) it differs from

aggravated assault against a public servant only in the respect that it

requires a less serious injury or risk of injury to the same person, property,

or public interest; (3) it differs from aggravated assault against a public

servant only in the respect that it requires a less culpable mental state; or

(4) it consists of an attempt to commit aggravated assault against a public

servant or an otherwise included offense. See

Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006).

We apply a two-pronged “cognate-pleadings analysis” to

determine whether the trial court should submit a lesser-included offense to

the jury in a particular case. Hall v. State , 225 S.W.3d 524 , 535–36 (Tex. Crim. App. 2007). To show that

the trial court erred in refusing his lesser-included-offense instruction under

this standard, Petersen must demonstrate that: (1) the elements of resisting

arrest are established by proof of the same or less than all of the facts

required to establish aggravated assault against a public servant and (2) some

evidence exists that would permit a rational jury to find the defendant guilty

of only resisting arrest and not aggravated assault against a public servant. See id.

To determine whether Petersen has satisfied the first prong

of this test, we compare the statutory elements of aggravated assault against a

public servant, as modified by the particular allegations in the indictment,

against the statutory elements of resisting arrest. Id. at 536 . The indictment alleged that Petersen “intentionally and knowingly threatened

[Garza] with imminent bodily injury . . . while [Garza] was lawfully

discharging an official duty, by using and exhibiting a deadly weapon, namely a

firearm, knowing that [Garza] was a public servant.” Cf. Tex. Penal Code Ann.

§ 22.01(a)(2), (b)(1) (West 2011) (defining elements of assault against public

servant); id. § 22.02(a)(2), (b)(2)(B)

(West 2011) (defining elements of aggravated assault). A person commits the

offense of resisting arrest if he (1) intentionally (2) prevents or obstructs

(3) a person he knows is a peace officer (4) from effecting an arrest, search,

or transportation of the actor or another (5) by using force against the peace

officer or another. Id. § 38.03(a) (West

2011). Resisting arrest is a third degree felony if the actor uses a deadly

weapon. Id. § 38.03(d). A comparison

of these elements demonstrates that Petersen cannot satisfy the first prong of

the cognate-pleadings test for a lesser-included-offense instruction.

First, aggravated assault against a public servant, as

charged against Petersen, requires proof that Petersen threatened Garza with

imminent bodily injury, while resisting arrest requires proof that Petersen

actually used force against Garza. Compare

Tex. Penal Code Ann. §

22.01(a)(2), with id. § 38.03(a).

Thus, the offense of resisting arrest requires proof of at least one element

that is not within the facts necessary to prove aggravated assault against a

public servant, as charged against Petersen. [1]

See Dunklin v. State , 194 S.W.3d 14, 22 (Tex. App.—Tyler 2006,

no pet.) (holding that defendant convicted of aggravated assault against public

servant based on threatening police officer was not entitled to lesser-included-offense

instruction on resisting arrest, which required use of force); Potts v.

State , No. 03-05-00009-CR, 2006 WL 664211 , at *4 (Tex. App.—Austin Mar. 17,

2006, pet. ref’d ) ( mem .

op., not designated for publication) (holding same and noting that “[t]he elements

of the two crimes are different. To prove resisting arrest, the State must

prove that there was a use of force. To prove aggravated assault by threat, the

State must prove that there was a threat of force.”); Schreyer v. State ,

No. 05-03-01127-CR, 2005 WL 1793193 , at *8 (Tex. App.—Dallas July 29, 2005,

pet. ref’d) (not designated for publication) (holding same and observing that “aggravated

assault requires proof that a public servant was only threatened with imminent

bodily injury; resisting arrest requires proof that a defendant used force

against a peace officer ( i.e., prevented or obstructed his arrest)”); see also Miller v. State , 86 S.W.3d 663, 665 (Tex. App.—Amarillo

2002, pet. ref’d) (holding that resisting arrest is not lesser-included offense

of aggravated assault by threat against a public servant).

Second, to convict Petersen for resisting arrest, the State

would have to show that Garza was “ effecting an

arrest, search, or transportation of the actor or another,” but the State did

not have to prove this element to prove the charged offense. Compare Tex. Penal Code Ann. § 22.01(a)(2), with id. § 38.03(a). To prove aggravated assault under the

State’s indictment against Petersen, the State only had to prove that Garza was

“‘lawfully discharging an official duty,’ which may or may not involve an

arrest.” Gilmore v. State ,

44 S.W.3d 92, 96 (Tex. App.—Beaumont 2001, pet. ref’d) (holding that defendant

was not entitled to instruction on resisting arrest as lesser-included offense

of aggravated assault on this basis); see

also Dunklin , 194 S.W.3d at

22 (“resisting arrest required proof of two elements the aggravated assault did

not: (1) preventing or obstructing a peace officer from effecting an arrest and

(2) using force against the peace officer”); Garcia v. State , No. 01-05-01055-CR,

2006 WL 2885057 , at *6 (Tex. App.—Houston [1st Dist.] Oct. 12, 2006, pet. ref’d ) ( mem . op., not designated

for publication) (holding that defendant was not entitled to instruction on

resisting arrest as lesser-included offense of assault and stating, “[R] esisting arrest requires that the officer be in the act of

making an arrest. Assaulting a public servant may occur at any time that the

public servant is conducting his official duty.”). The element of resisting

arrest is not within the facts necessary to prove aggravated assault against a

public servant, as charged against Petersen here. [2]

Thus, Petersen has not demonstrated that the elements of

resisting arrest are established by proof of the same or less than all of the

facts required to establish aggravated assault against a public servant, as the

State charged that offense against him. See

Hall , 225 S.W.3d at 535–36 . Because

Petersen has not satisfied the first prong of the cognate-pleadings test for a

lesser-included-offense instruction, we need not reach the second prong. Cf. Lofton v. State , 45 S.W.3d 649 , 651 –52 (Tex. Crim. App. 2001) (holding

that defendant was not entitled to submission of resisting arrest as

lesser-included offense under second prong when State did not challenge first

prong). We overrule Petersen’s sole issue.

Conclusion

We hold that the trial court did not err in denying

Petersen’s requested instruction on resisting arrest as a lesser-included

offense. We therefore affirm the trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Justices Bland, Massengale, and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).

[1]

Petersen argues that the

evidence at trial demonstrated that he produced a gun and engaged in physical

resistance with Garza and that such evidence establishes a “use of force”

against Garza. But we “do not consider the

evidence that was presented at trial” when applying the first step of the

cognate-pleadings test; “[ i ] nstead ,

we consider only the statutory elements of [aggravated assault against a public

servant] as they were modified by the particular allegations in the indictment.”

Hall v. State , 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). The question

at this stage of the analysis is not whether the State proved the elements of

the alleged lesser-included offense but whether the State had to do so to prove

the offense charged.

[2] Petersen argues that “[t]he evidence

that he committed aggravated assault knowing that Garza was a public servant lawfully

attempting to arrest appellant also establishes that he intentionally prevented

or obstructed Garza from effecting his arrest.” Again, we may not examine the

evidence at trial in analyzing the first prong of the cognate-pleadings test. Hall ,

225 S.W.3d at 536 .