holding that defendant was not entitled to charge on lesser-included offense of aggravated assault when only evidence was that the victim saw defendant run off with a woman’s purse, the victim gave chase, and the defendant slashed at him with a knife
How later courts described this case
- holding that defendant was not entitled to charge on lesser-included offense of aggravated assault when only evidence was that the victim saw defendant run off with a woman’s purse, the victim gave chase, and the defendant slashed at him with a knife
- explaining that, depending upon the facts proven, aggravated assault can be a lesser included offense of aggravated robbery
- explaining that depending upon facts proven, aggravated assault can be lesser included offense of aggravated robbery
- holding adopted by majority of court in Aguilar v. State, 682 S.W.2d 556 (Tex.Crim.App.1985)
Written by the judges who cited it.
The opinion
OPINION ON COURT’S MOTION FOR REHEARING
TOM G. DAVIS, Judge.
Appeal is taken from a conviction for robbery. After the jury found appellant guilty, punishment, enhanced by two prior convictions, was assessed at life.
This cause has been resubmitted on the Court’s motion with regard to the manner by which a penal of this Court, on original submission, disposed of appellant’s fourth and fifth grounds of error. In those grounds of error, appellant maintains the trial court erred in refusing to submit his specially requested jury charges on the lesser included offenses of assault and theft. Appellant contends that while proving he committed a robbery, the State also proved the commission of an assault and a theft.
Betty Ward testified that on October 16, 1977, her purse was “snatched” on Market Street in San Antonio. Ronald Simmons pursued the individual who took Ward’s purse. During the chase, Simmons received a knife wound above his left eye. Walter Falk identified appellant as the person who took Ward’s purse. Appellant did not testify at trial or call any witnesses.
On original submission, the panel found no error in the court refusing to submit appellant’s requested jury charges on assault and theft. In stating the rule of law applicable to the necessity of charging on a lesser included offense, the panel held:
“... It is only when there is conflicting evidence concerning an element of the greater offense which is not an element of a lesser offense that a charge on lesser included offense need be given. The rule stated another way by Mr. Justice Goldberg in Sansone v. United States, 380 U.S. 343 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965) is:
“ ‘A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.’
“See Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980; Dally J., concurring in part and dissenting in part); Berra v. United States, 351 U.S. 131 , 76 S.Ct. 685 , 100 L.Ed. 1013 (1958); Sparf v. United States, 156 U.S. 51 , 15 S.Ct. 273 , 39 L.Ed. 343 (1895); United States v. Madden, 525 F.2d 972 (5th Cir. 1976); Yates v. United States, 384 F.2d 586 (5th Cir. 1967).”
In Campbell v. State, 571 S.W.2d 161 , (Tex.Cr.App.) it was held that theft can be a lesser included offense of aggravated robbery. It has likewise been held that depending upon the facts proven, aggravated assault can be a lesser included offense of aggravated robbery. Watson v. State, 605 S.W.2d 877 . In McBrayer v. State, 504 S.W.2d 445 , (Tex.Cr.App.), it was held that merely because a lesser offense is included within the proof of a greater offense, a jury charge on the lesser is not required unless there is testimony raising such issue that the defendant, if guilty, is guilty only of the lesser offense.
Thus, in determining whether a charge on a lesser included offense is required, a two step analysis is to be used. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.). This Court has consistently employed the two step analysis in recent opinions dealing with the necessity of a charge on a lesser included offense. See Watson v. State, supra; Simpkins v. State, 590 S.W.2d 129 (Tex.Cr. *447 App.); Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.); Wright v. State, 582 S.W.2d 845 (Tex.Cr.App.); Briceno v. State, 580 S.W.2d 842 (Tex.Cr.App.); Thomas v. State, 578 S.W.2d 691 (Tex.Cr.App.); Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.).
In the instant case, while proving the robbery, the State likewise proved the theft from Ward and assault upon Simmons. Thus, the lesser included offenses of theft and assault were included within the proof necessary to establish the offense charged of robbery. However, there was no evidence presented at trial which showed that appellant, if guilty, was only guilty of the lesser included offenses of theft and assault. We find no error in the court refusing to submit appellant’s specially requested jury charges on the lesser included offenses of theft and assault. Therefore, although the panel opinion failed to rely on the rule heretofore established by the cases of this Court, the disposition made of the grounds of error was nevertheless correct.
The judgment is affirmed.