Anthony James Dixon v. State

Opinion issued March 10, 2011

In The

Court

of Appeals

For The

First

District of Texas

————————————

NO. 01-09-00340-CR

———————————

anthony james dixon , Appellant

V.

THE state of

texas , Appellee

On Appeal from the 260th

District Court

Orange County, Texas

Trial Court Case

No.

D080417-R

O P I N I O N

Appellant,

Anthony James Dixon, appeals a judgment convicting him for attempted aggravated

assault with a deadly weapon. S ee

Tex.

Penal Code Ann.

§ 22.02(a )( 2) (West Supp. 2008); Burke v.

State , 28 S.W.3d 545, 548 (Tex. Crim. App. 2000) (person commits aggravated

assault by threatening imminent bodily injury and using or exhibiting deadly

weapon during commission of assault) ; Tex. Penal Code Ann.

§ 15.01 (West 2003) (attempt is more than mere preparation, and it tends

but fails to effect commission of offense intended). In

four issues, appellant contends the trial court erred by using a single verdict

form, by failing to require unanimity in the acquittal of the greater offense

before consideration of the lesser offense, by failing to instruct the jury on lesser-included

offenses of deadly conduct and reckless driving, and by admitting out-of-court

hearsay statements and a 911 call.

Determining the trial court did not err in its jury charge and admission

of evidence, we affirm the judgment.

Background

Shortly

before 2:00 a.m. one night in May 2008, the complainant, Cherlyn Kelly, was

a passenger in a truck driven by appellant, whom she lived with in Orange,

Texas. Kelly was a drug addict who had

relapsed by using crack cocaine and marijuana that night. Appellant, upset with Kelly for not sharing

her drugs with him, refused to allow her out of the truck.

When he was

about three blocks from the house where he lived with Kelly, appellant stopped

the truck due to a problem with the gearshift.

Kelly left the truck, angering appellant. They argued, with appellant shouting

expletives as her. Kelly ran twice

around one house and then around a green house at 504 Park. Appellant chased her in his truck while revving

the engine loudly. He drove on the lawn

of the green house, striking it and taking bark off a tree. Kelly stated that had she not fallen under

the house, he would have run over her when he struck the house and tree, and

she would have been killed or seriously injured. She stated that she feared for her life

during the chase. The chase ended when

the truck stalled in the middle of the road.

Kelly was then able to call 911 by using the cell phone of a man who

stopped to help. After that, she ran to

her apartment, called 911 again, and within a short amount of time, saw the

police arrest appellant.

Pamela

Brown saw most of these events from her house across the street. Brown saw appellant arguing with Kelly before

Kelly ran from the truck when it was stopped on the corner of Park and

Fourth. Brown saw the truck chase Kelly,

who ran screaming. Brown observed the

truck follow Kelly and leave the roadway.

Kelly ran around the green house and then between a tree and the house,

before taking a right turn towards Fifth Street. Brown stated the truck followed Kelly while

the engine was revved up high. Brown,

however, expressed no opinion whether appellant was actually trying to run over

Kelly.

Officers

responding to the scene noticed that the truck had damage on the driver’s side

with green paint that appeared to have been transferred from the green-colored

house. A tree near the house had bark

missing from being struck with the truck.

Appellant denied striking the house, claiming he had dropped off Kelly

at their apartment.

The

complainant called 911 twice. The first

911 call was not admitted into evidence.

The second 911 call was admitted over appellant’s hearsay objection. In the call, complainant is emotional with a

quivering voice. She begins by giving her name and address,

stating “Anthony James Dixon just

tried to run me over again.” The 911

operator states, “Okay, someone is on the way.”

Complainant then states, “I am at home, I made it home, somebody’s

probably home.” The 911 operator asks if

the complainant is hurt and she responds that she is not, explaining that she got

away and made it through the houses. The

rest of the call consists of the 911 operator obtaining the address and phone

number of the complainant, and telling her that the police are on the way.

At 1:54

a.m., Officer Kemp was dispatched to the scene, where she stayed for about 20

minutes, until she went to Kelly’s apartment to speak with her. Officer Kemp described Kelly as “very visibly

shaken, very upset, scared, excited, and crying.” When Officer Kemp asked her what happened,

Kelly described in detail how appellant tried to kill her by running over her. Appellant’s attorney lodged a hearsay

objection at trial to Officer Kemp’s description of Kelly’s statements.

A single indictment charged

appellant with two paragraphs. The first

paragraph charged aggravated assault by intentionally or knowingly threatening

to cause bodily injury with the truck that was used as a deadly weapon. The second paragraph charged the lesser-included

offense of attempted aggravated assault.

The attempted

aggravated assault alleged:

[Appellant] with the specific intent to commit the

offense of aggravated assault, did then and there intentionally and knowingly

use a deadly weapon, to wit: a truck, that in the manner of its use and

intended use was capable of causing death and serious bodily injury, and did

then and there intentionally and knowingly attempt to cause bodily injury to Cherlyn Kelly by trying to run over said Cherlyn Kelly with said truck, that amounted to mere

preparation that tends but fails to effect the commission of the offense

intended.

The jury

charge included a single verdict form that allowed the jury three options: (1) to find appellant guilty of aggravated

assault; (2) if it had a reasonable doubt about that offense, to find appellant

guilty of attempted aggravated assault; or (3) if it had a reasonable doubt

about any offense, to find him not guilty.

Appellant’s attorney requested lesser-included offenses of deadly

conduct, which he referred to as reckless conduct, [1] and

reckless driving. The trial court denied

the request.

During deliberations, the jury sent

a written note asking ,

“If the panel is not unanimous on the first count but is unanimous on the

second count, do we have to be unanimous on acquittal of first count before

voting on second?” Appellant told the

court to answer “yes.” Overruling

appellant’s objection, the trial court answered the question, stating,

“No. You may find him guilty on Count One

or Count Two or find him not guilty.” The jury found appellant guilty of attempted

aggravated assault and assessed punishment at 10 years in prison and a $5,000

fine.

Lesser-Included Offenses

In his first issue, appellant

contends the trial court erred by failing to instruct the jury on lesser-included

offenses of deadly conduct and reckless driving. A defendant is entitled to a jury charge on a lesser-included offense if two prongs

are met. Flores v. State , 245 S.W.3d 432, 439

(Tex. Crim. App. 2008). First,

the defendant must request an instruction on a lesser-included offense of the charged offense under article 37.09

of the Texas Code of Criminal Procedure . Id .; Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006). Second, there must be “some evidence” that if

the defendant is guilty, he is guilty only of the lesser-included offense. Flores ,

245 S.W.3d at 439 .

A.

Analysis of First Prong

Both deadly conduct and reckless driving meet the first prong

for lesser-included offenses based on the indictment in this case.

1.

Applicable Law

For the first prong, the determination of whether an offense is a lesser-included

offense of the alleged offense is a question of law that does not depend on the

evidence to be produced at trial; rather, it depends on the elements in the

charging instruments. Hall v. State , 225 S.W.3d

524, 535 (Tex. Crim. App. 2007) .

An offense is 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 interest suffices to establish its commission;

(3) It differs from the offense charged only in

the respect that a less culpable mental state suffices to establish its

commission; or

(4) It consists of an attempt to commit the

offense charged or an otherwise included offense.

Tex.

Code Crim. Proc. Ann. art. 37.09; Aguilar v. State , 263

S.W.3d 430, 435 (Tex. App.—Houston [1 Dist.] 2008, pet. ref’d ).

Under the indictment in this case, the offenses of aggravated

assault and attempted aggravated assault require proof of an intentional or

knowing mental state. “Intentionally”

means that it is the defendant’s conscious objective or desire to engage in

conduct or cause the result. See Tex. Penal Code Ann. § 6.03(a) (West 2003). A defendant acts “knowingly” with respect to the

nature of his conduct or the circumstances surrounding his conduct if he is

aware of the nature of his conduct or that the circumstances exist; a defendant

acts “knowingly” with respect to the result of his conduct if he is aware that

his conduct is reasonably likely to cause the result. See Tex. Penal Code Ann. § 6.03(b). In contrast, deadly conduct and reckless

driving both have recklessness as the mental state. See Tex. Penal Code Ann. § 22.05(a) (West 2003); Tex. Transp. Code Ann. § 545.401(a)

(West 1999).

“Recklessness” means that the defendant is aware of but consciously

disregards a substantial and unjustifiable risk that the circumstances exist or

the result will occur. See Tex. Penal Code Ann. § 6.03(c); Dillon v.

State , 574 S.W.2d

92, 94 (Tex. Crim. App. 1978).

2.

Analysis

a.

Deadly Conduct

Deadly conduct requires evidence

that the appellant recklessly engaged in conduct that placed Kelly in imminent

danger of serious bodily injury. See

Tex.

Penal Code Ann. § 22.05(a);

Guzman v.

State , 188 S.W.3d

185 , 190–91 (Tex. Crim. App. 2006) .

When the indictment alleges that the defendant intentionally or

knowingly threatened to cause bodily injury to the complainant with a deadly

weapon, deadly conduct is established by proof of the same or less than all the

facts to establish aggravated assault. Guzman , 188 S.W.3d at

190 ( alleged act of threatening to cause bodily injury to

complainant with deadly weapon is an act that would place complainant in

imminent danger of serious bodily injury); Bell v. State , 693 S.W.2d

434 , 437–39 (Tex. Crim. App. 1985) (same). In Bell , the Court of Criminal Appeals explains,

Patently,

threatening another with imminent bodily injury is engaging in conduct. When that threat is accomplished by the use

of a deadly weapon, by definition the victim is “exposed” to the deadly

character of the weapon and the inherent risk of serious bodily injury. The danger of serious bodily injury is

necessarily established when a deadly weapon is used in the commission

of an offense. It follows, therefore,

that proof of threatening another with imminent bodily injury by the use of a

deadly weapon constitutes proof of engaging in conduct that places another in

imminent danger of serious bodily injury.

Bell , 693 S.W.2d at 438–439 . Like Guzman

and Bell , the indictment here

alleges aggravated assault and attempted aggravated assault by threatening to

cause bodily injury with a deadly weapon, which satisfies the first prong for

admission of deadly conduct as a lesser-included offense. Guzman, 188 S.W.3d at 190 ; Bell, 693 S.W.2d at

439 .

b.

Reckless Driving

The

elements of reckless driving are that the appellant drives a vehicle with

willful or wanton disregard for the safety of persons or property. See Tex.

Transp. Code Ann. § 545.401(a); Harris

v. State , 152 S.W.3d 786, 796 (Tex. App.—Houston [1 Dist.] 2004, pet. ref’d ). Willful and

wanton disregard as applied to reckless driving means deliberate and conscious

indifference to the safety of others. Benge v. State , 94 S.W.3d

31, 36 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d ) . This meets the first prong for lesser-included

offenses because the elements of reckless driving are included within the proof

necessary to establish the commission of the offenses of aggravated assault and

attempted aggravated assault as charged in this case. Benge , 94 S.W.3d at 36 ; Tex. Code Crim. Proc. Ann. art. 37.09(1).

B.

The Second Prong

Neither deadly conduct nor reckless driving meet the second

prong for lesser-included offenses based on the record in this case.

1.

Applicable Law

The second prong requires that the record contain some

evidence that would permit a jury rationally to find that if the defendant is

guilty, he is guilty only of the lesser offense. Skinner

v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert. denied, 523 U.S. 1079 , 118 S. Ct. 1526 (1998). The evidence

must establish the lesser-included offense as a valid rational alternative to

the charged offense. Arevalo v. State , 943 S.W.2d

887, 889 (Tex. Crim. App. 1997). Anything

more than a scintilla of evidence is sufficient to entitle a defendant to a

lesser charge. Ferrel v. State , 55 S.W.3d 586,

589 (Tex. Crim. App. 2001). In

making this decision, the court does not consider whether the evidence is

credible, controverted , or in conflict with other

evidence. Hall v. State , 158 S.W.3d 470, 473 (Tex.

Crim. App. 2005). In applying the

second prong, the appellate court must examine the entire record instead of

plucking certain evidence from the record and examining it in a vacuum. Ramos v. State , 865 S.W.2d 463, 465 (Tex. Crim. App. 1993). Evidence that shows no offense occurred at

all fails to raise the issue of a lesser-included offense. Lofton v. State , 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).

The test for determining whether evidence is legally

sufficient and the test for determining whether to submit a lesser-included offense

jury instruction are “quite different.” Wasylina v. State , 275 S.W.3d

908, 909 (Tex. Crim. App. 2009). The

evidence could easily be legally sufficient to support a conviction for a lesser-included

offense but not justify the submission of a lesser-included offense instruction

because the evidence does not show that the defendant is guilty only of the lesser-included

offense. Id . at 909–910.

For a lesser-included offense instruction to be required, the

evidence suggestive of the lesser offense must be more than a jury’s disbelief

of evidence establishing the greater offense.

Hampton v. State ,

109 S.W.3d 437, 441 (Tex. Crim. App. 2003). “[T]here must be affirmative evidence to

rebut the greater element, and the jury may not simply disbelieve evidence

establishing the greater.” Schmidt v. State , 278 S.W.3d 353, 362

(Tex. Crim. App. 2009); see also Segundo

v. State , 270 S.W.3d 79 , 90–91 (Tex. Crim. App. 2008) (holding trial court

properly denied lesser-included offense instruction because evidence showed

only that medical examiner said it was possible for sperm to remain in person’s

vaginal vault for up to 72 hours, but that evidence raised only theoretical

possibility that rape and murder could be disconnected in time and space, and no

evidence in record showed that victim’s rape and murder were, in fact,

disconnected based on medical evidence that they occurred at same time); Enriquez v. State , 21 S.W.3d 277 ,

278–282 (Tex. Crim. App. 2000) (holding trial court erred by giving lesser-included

offense instruction for lesser amount of marijuana because chemist only tested

one bundle of bundles in evidence); Hampton ,

109 S.W.3d at 441 (holding trial court erred by including instruction on lesser-included

offense of sexual assault because complainant testified knife was used during

sexual assault and failure to find knife was not affirmative evidence that no

knife was used).

2. Analysis

Appellant contends the second prong is met for deadly conduct

and reckless driving by pointing to a particular portion of Brown’s

testimony. The record shows the following:

[Attorney]: Did it look to you

like he was actually trying to run over her?

[Brown]: I couldn’t tell you

that.

Appellant interprets this testimony as evidence that

appellant was not trying to run over Kelly.

But the witness’s answer is indefinite on this point. It is subject to the interpretation that the

witness could not tell one way or another.

Counsel did not follow up to clarify the witness’s statement. Without such clarification, the trial judge,

who heard the words spoken, was in a better position to evaluate the

answer. The witness later stated that

the truck definitely followed Kelly “through yards and around houses.”

A lesser-included offense

instruction is not required for evidence examined in a vacuum.

See Ramos , 865

S.W.2d at 465 . The entire

evidence must be examined in context. See id .

Brown’s entire testimony shows that she heard an argument before she saw

the truck follow Kelly as it revved its engine while Kelly ran screaming around

a house. We decline to hold that the

trial court abused its discretion, as appellant suggests, when the testimony as

a whole does not negate intent, and the portion of the testimony appellant points

to is unclear in its meaning. See id .

Appellant also points to evidence that, at times during the

chase, he drove on a trail used by vehicles and, at the end of the incident,

drove in an opposite direction from that taken by Kelly. Although those facts might be indicative of lesser-included

offenses of deadly conduct or reckless driving, this evidence does not show

that the defendant is guilty only of the lesser-included offenses, when the

testimony is that he was chasing Kelly while on that trail and almost struck

her with his truck when he chased her around two houses. See

Wasylina , 275 S.W.3d at 909–910 .

Appellant relies on Benge v. State to support his position

that the lesser-included offense instructions were required. Benge ,

94 S.W.3d at 35–37 (lesser-included

offense instruction of reckless driving should have been given where Benge was charged with aggravated assault and testified she

had no intent to hit complainant and tried to stop t ruck);

see Rice v. State , 305 S.W.3d 900 , 905–907

(Tex. App.—Dallas 2010, pet. granted) (lesser-included offense instructions on

deadly conduct and reckless driving should have been given where Rice testified

he lost his temper, drove around parking lot to look for complainants, was not

trying to hit complainants, and never saw them, and other evidence established

recklessness of appellant’s conduct).

Unlike Benge and Rice ,

here appellant did not testify about any lack of intent to strike Kelly, nor

does any evidence from any source show he lacked the intentional or knowing

mental state. Instead, the only evidence

shows he argued with Kelly and chased her in his truck while she ran away

screaming , narrowly missing her as she rolled out of the way into a hole

under a house that he struck .

The facts here are more like those in Coleman v. State , where the Amarillo Court of Appeals determined the lesser-included

instruction was not required. Coleman v. State , No.

07-08-00395-CR, 2009 WL 2168769 at *2 (Tex. App. — Amarillo

July 21, 2009, no pet.) ( mem .

op.) ( not designated for publication). Coleman struck the complainant’s car on four

or five occasions after becoming angry with him, with two of the strikes

occurring in the presence of a police officer.

Id . at *1. The investigating officer could not state

whether the accident was caused by Coleman’s faulty brakes or the complainant’s

sudden stop. Id . at *2. The Amarillo court determined that the

officer’s inability to speculate about other causes for the collision was not

affirmative evidence that would require lesser-included offense instructions of

deadly conduct and reckless driving. Id. The court explained that speculation about

other possible reasons for the event was not a proper basis to include a lesser-included

offense instruction. Id. at *2–3.

Like Coleman , here the

record lacks affirmative evidence that appellant is guilty only of the lesser-included

offenses of deadly conduct and reckless driving. We hold the trial court did not err by

refusing to include those lesser-included offenses in its charge to the

jury. We overrule the first issue.

Admission

of Evidence

In his second and third

issues, appellant contends the trial court erred by admitting hearsay: Kelly’s

statements made to Detective Kemp and Kelly’s statements made to the phone

operator during her second 911 call.

A.

Applicable Law

We review trial court

rulings concerning admission or exclusion of evidence under an abuse of

discretion standard. Sexton

v. State , 93 S.W.3d 96, 99 (Tex. Crim. App. 2002) ; Erdman v. State , 861 S.W.2d 890,

893 (Tex. Crim. App. 1993). A trial court abuses

its discretion when it acts arbitrarily and unreasonably without reference to

any guiding rules or principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App.

1990).

Admission

of an excited utterance is an exception to the rule that hearsay statements are

generally not admissible. Apolinar v. State , 155 S.W.3d 184,

186 (Tex. Crim. App. 2005). An excited utterance is “[a] statement

relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition.” Id .; see

also Tex. R. Evid .

803(2) . The exception is based on the assumption that

the declarant is not, at the time of the statement, capable of the kind of

reflection that would enable him to fabricate information. Apolinar , 155 S.W.3d at 186 .

B.

Statement to Detective Kemp

Appellant contends Kelly’s statement described in Detective

Kemp’s trial testimony is hearsay because it is not an excited utterance. Appellant complains of the following

narrative conveyed through Detective Kemp:

She explained to me that [appellant] had tried to kill

her by running her—running over her, and she had also spoken in reference to an

earlier incident in which I had made contact with her. She explained what happened there. She said that she truly thought that he was

going to kill her, that she—the vehicle was traveling down the road which she

was the passenger, he was driving. They

had been arguing all throughout, apparently, the course of a weekend. And he stopped the vehicle—they had been

having trouble with the truck and he stopped the vehicle and I think it

died. She took that as an opportunity to

run out of the truck. She took off

running in between two houses there on Park, and he pursued—I guess apparently

was able to get it started and pursued after her in the truck. And she said that he came in between the two

houses, which would have been— basically he would have been traveling, you

know, in between the two houses and struck—to squeeze the distance between the

two, she said that she had fallen into a ditch, I remember her saying—or fallen

into a hole which caused her to duck down; and she said that’s the reason that

it missed her head. It narrowly missed her

head. And then he traveled—struck—was

able to squeeze in between the two by striking the tree and then bouncing and

hitting into the house.

Appellant points out that Kelly’s statement was made in

response to questioning by Detective Kemp, [2]

but the mere fact that the statements

are the result of a question asking what happened does not make the statement

inadmissible. Apolinar , 155

S.W.3d at 190 . Appellant also

suggests that the passage of one hour between the event and the statement is

too long for an excited utterance in light of evidence that in that time Kelly

left the scene of the offense, walked home, and made two 911 calls to the

police.

Based on Detective er Kemp’s

description of Kelly’s emotional state, the one hour time lapse does not make

the statement inadmissible as an excited utterance. Detective Kemp described Kelly as “very visibly shaken, very upset, scared,

excited, and crying” as Kelly discussed the event. This evidence satisfies the requirement for

admission of hearsay as an excited utterance under these circumstances, which

show the statement was not self-serving and was made shortly after the

event. See id . at 190–91 (t estimony that declarant still appeared

nervous or distraught and that there was reasonable basis for continuing

emotional upset will often suffice); Zuliani v. State , 97 S.W.3d

589, 596 (Tex. Crim. App. 2003) (statement made twenty hours after assault

on victim was excited utterance because victim had been with her attacker

during entire period and victim was clearly still very upset and under influence

of attack). We hold the trial

court did not abuse its discretion by admitting the excited utterance described

by Officer Kemp.

C.

911 Call

Appellant

contends the trial court erred by admitting the second 911 call made by

Kelly. The first 911 call occurred when

she used a bystander’s cell phone as she ran from the scene at the end of the

chase. That call was not offered into

evidence at the trial and the record does not show the contents of the conversation. The second 911 call was made when she arrived

at her apartment three blocks away from the scene of the offense. This call was made before Detective Kemp met

appellant at her house. Appellant points

out that this was the only item of evidence asked for by the jury during its

deliberations.

Appellant

suggests on appeal that the admission of the 911 call violates the Confrontation

Clause of the United States Constitution, but that argument is waived because

he failed to object on that basis at trial.

See Blue v. State , 41 S.W.3d 129, 131 (Tex. Crim. App. 2000). Appellant’s sole objection at trial was

hearsay. In response, the State relies

on the excited utterance exception claiming that the recording itself shows

Kelly was still under the stress of the startling event as she was relating her

location so that she could receive assistance from the police. As we explain above, er Officer Kemp, who saw Kelly about an hour after the

event, described her as very shaken,

very upset, scared, excited, and crying.

Furthermore, we have listened to the 911 call. Kelly’s voice is quivering and she sounds very

upset, scared, and excited. We conclude

the trial court did not abuse its discretion by determining the statements in

the 911 call were excited utterances. See id. at 132 ;

Zuliani , 97 S.W.3d at

596 . We hold the trial court

did not abuse its discretion by admitting the 911 call. We overrule appellant’s second and third

issues.

Consideration of Lesser Offense Without Acquittal of Greater Offense

In his fourth issue, appellant contends the trial court’s

response to the note received from the jury during deliberations constituted

harmful, reversible error. The trial

court answered the jury’s question by telling the jury it did not have to

unanimously acquit of the greater offense before considering the lesser

offense.

Article 37.07 of the Code of Criminal Procedure provides that

“[ i ]f the jury fails to agree on the issue of guilt

or innocence, the judge shall declare a mistrial and discharge the jury, and

jeopardy does not attach in the case.” Tex. Code Crim. Proc. Ann. art. 37.07 (West

2008). Unanimous verdicts are the

final decisions of a jury, delivered to the court after its deliberations are complete. Id . art. 37.01 (“A ‘verdict’ is a written declaration by a

jury of its decision of the issue submitted to it in the case.”). Here, the jury unanimously found appellant

guilty of attempted aggravated assault.

Appellant, however, contends the jury should have unanimously acquitted

him of aggravated assault before it could consider attempted aggravated

assault.

In making decisions such as the method of discussion,

speaking order, and the like, the jury is left to its own devices. Barrios v. State , 283 S.W.3d 348, 352 (Tex. Crim. App. 2009). “So, too, is the order in which the parts of

the jury charge are considered left to the discretion of the jury.” Id . The purpose of the law is to allow free

discussion and interchange of opinions among jurors in order that proper

verdicts may be rendered. Id . at 352–53 (citing Caesar v. State , 117 S.W.2d 66, 68 (Tex.

Crim. App. 1938)). They may consider the

evidence in light of the entire charge read as a whole. Id .

(citing Boyett v. State , 692 S.W.2d 512, 516 (Tex.

Crim. App. 1985)). “Therefore, even if,

and perhaps especially if, the jurors cannot agree as to guilt on the greater

offense, they have already been instructed that they may consider guilt as to

the lesser offense before deciding on a verdict as to the greater offense.” Id . at 353.

The trial court’s answer to the jury here complies with the

Court of Criminal Appeals’s suggestion that it “may

be that a better practice is for trial courts to include an instruction that

explicitly informs the jury that it may read the charge as a whole, and to

[include an instruction stating,] ‘or if you are unable to agree, you will next

consider’ . . . so that the charge makes clear to the jury that, at its

discretion, it may consider the lesser-included offenses before making a final

decision as to the greater offense.” Barrios , 283 S.W.3d at

353 . The trial court’s answer

complies with the Court of Criminal Appeals’s

decision in Barrios that allows a

jury to consider the lesser-included offense without having to first

unanimously acquit of the greater offense.

See id .

Appellant suggests that regardless of the Barrios decision, he was harmed by the

purported inconsistency between the original written instructions that he

contends required the jury to unanimously acquit of the greater offense as

compared to the court’s answer to the jury question that did not have that

requirement. The written instructions,

however, did not expressly require a unanimous acquittal of the greater

offense. Instead, the jury instructions

told the jury to find appellant guilty of aggravated assault unless it had a

reasonable doubt about his guilt and if it did have a reasonable doubt, to next

consider attempted aggravated assault.

The original written charge was silent on whether the jury had to be

unanimous in acquitting appellant of the greater offense. The jury’s question asking for clarification

about whether it had to unanimously acquit him of aggravated assault

demonstrates that the instruction was unclear about this matter. We conclude that the trial court’s answer to

the jury’s note was not inconsistent with its earlier written instructions and

that it properly described the applicable law.

See id . at

351–53. We overrule the fourth issue.

The Verdict Form in the Jury Charge

In his fifth issue, appellant contends the trial court erred

by including a verdict form inconsistent with article 37.07(1 )( c)

of the Code of Criminal Procedure.

Appellant suggests two verdict forms should have been submitted so that

in one the jury would find appellant guilty or not guilty of aggravated assault

and in the other the jury would find him guilty or not guilty of the lesser-included

offense of attempted aggravated assault.

The State responds that article 37.07(1 )( c) is

inapplicable.

Section 37.07(1 )( c) states, “[I]f

the charging instrument contains more than one count or if two or more offenses

are consolidated for trial pursuant to Chapter 3 of the Penal Code, the jury

shall be instructed to return a finding of guilty or not guilty in a separate

verdict as to each count and each offense submitted to them.” Tex. Code Crim. Proc. Ann. art.

37.07(1 )( c).

This section is an exception to the requirement for a general

verdict. Id . at art. 37.07(1 )( a). A single

indictment may contain two or more offenses with each offense stated in a

separate count if the offenses arise out of the same criminal episode. Id . at art. 21.24(a). A count may contain as many paragraphs

charging the same offense as necessary, but no paragraph may charge more than

one offense. Id . at art. 21.24(b).

Here, the indictment charged appellant with a single offense

of aggravated assault and its lesser-included offense of attempted aggravated

assault. See Tex. Code

Crim. Proc. Ann. art. 37.09(4). “In a

prosecution for an offense with lesser included offenses, the jury may find the

defendant not guilty of the greater offense, but guilty of any lesser included

offense.” Id . at art. 37.08 . Furthermore , the

Code provides that if a defendant is prosecuted for an offense that includes

within it lesser offenses and he is convicted of an offense lower than that for

which he is indicted, the verdict upon the first trial shall be considered an

acquittal of the greater offense. Id . at art. 37.14 . Because appellant

was not charged with separate counts and no separate offenses were consolidated

for trial, article 37.07(1)(c) is inapplicable.

See id . at

art. 37.07(1 )( c).

We hold the trial court properly instructed the jury to opt between

aggravated assault, attempted aggravated assault, and not guilty in a single

general verdict form. See id . at art.

37.07(1 )( a). We

overrule the fifth issue.

Conclusion

We affirm the judgment of

the trial court.

Elsa

Alcala

Justice

Panel consists of Chief Justice Radack and Justices

Alcala and Bland.

Publish. Tex. R. App. P. 47.2( b).

[1] The

State does not contend that the trial court failed to understand appellant’s

request for reckless conduct was a request for deadly conduct. See

Carmen v. State , 276 S.W.3d 538 , 548 n.3 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d ) (holding error is preserved if

trial court understands basis of appellant’s request for lesser included

offense instruction).

[2] Evidence that a

statement is made in response to questioning in relevant to whether a statement

violates the Confrontation Clause. See Wall v. State , 184 S.W.3d 730 , 741

n.40 (Tex. Crim. App. 2006); Spencer v.

State , 162 S.W.3d 877 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d ). Appellant

made no Confrontation Clause objection at trial and does not assert that issue

in this appeal. We also note that appellant cites two cases as his authority , but neither case mentions

exited utterances. See Fisher v. State , 252

S.W.3d 375

(Tex. Crim. App. 2003)

(discussing present sense impression exception to

rule against hearsay); Hughes v.

State , 128 S.W.3d 247 (Tex. App.—Tyler 2003, pet. ref’d ) (same) .