Jimmy James Brite v. State ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00721-CR
Jimmy James BRITE,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR1419
Honorable Andrew Carruthers, Judge Presiding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: November 2, 2016
AFFIRMED
Jimmy James Brite was convicted by a jury of aggravated sexual assault and sentenced to
twenty-eight years’ imprisonment. The sole issue Brite presents on appeal is whether the trial
court abused its discretion in denying his request to include an instruction in the jury charge on the
lesser offense of assault by threat. We affirm the trial court’s judgment.
1
The Honorable Ray Olivarri presided at the guilt-innocence phase of the trial.
04-15-00721-CR
TWO-STEP ANALYSIS GOVERNING INCLUSION OF LESSER-INCLUDED OFFENSE
A two-step analysis is applied to determine whether an instruction on a lesser-included
offense should be given to a jury. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013).
“The first step of the analysis is a question of law that does not depend on the evidence.” Id. In
this step, we compare the elements of the offense as alleged in the indictment with the elements of
the requested lesser offense. Id. An offense is a lesser-included offense if “it is established by
proof of the same or less than all the facts required to establish the commission of the offense
charged.” TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006). To determine if an offense
qualifies as a lesser-included offense, we use the cognate pleadings approach which means “the
elements of the lesser-included offense do not have to be pleaded in the indictment if they can be
deduced from facts alleged in the indictment.” Meru, 414 S.W.3d at 162. We also apply the
functional-equivalence concept and examine the elements of the lesser offense and decide whether
they are functionally the same or less than those required to prove the charged offense. Id. (internal
quotations omitted).
If we determine the requested lesser offense is a lesser-included offense in the first step of
the analysis, we then “move to the second step of the test and consider whether a rational jury
could find that, if the defendant is guilty, he is guilty only of the lesser offense.” Id. at 162-63.
“This is a fact determination and is based on the evidence presented at trial.” Id. at 163.
WHETHER REQUESTED OFFENSE IS A LESSER-INCLUDED OFFENSE
The indictment charged Brite with aggravated sexual assault by intentionally and
knowingly causing the penetration of the sexual organ of the complainant by his sexual organ,
“said act having been committed without the consent of the complainant, in that [Brite]
COMPELLED THE COMPLAINANT TO SUBMIT AND PARTICIPATE BY THE USE OF
PHYSICAL FORCE AND VIOLENCE, and [Brite] did by acts or words place [the complainant]
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04-15-00721-CR
in fear that DEATH would be imminently inflicted on COMPLAINANT.” During the charge
conference, Brite requested an instruction on the lesser offense of assault by threat. A person
commits the offense of assault by threat if the person “intentionally or knowingly threatens another
with imminent bodily injury, including the person’s spouse.” TEX. PENAL CODE ANN.
§ 22.01(a)(2) (West Supp. 2016).
In his brief, Brite’s argument centers on the allegation in the indictment that Brite placed
the complainant in fear that death would be imminently inflicted on her. Brite contends that
because a threat of death cannot occur without a threat of imminent bodily injury, the two are
functionally equivalent.
The problem with Brite’s argument is the premise that placing the complainant in fear of
imminent death is the functional equivalent of threatening the complainant with imminent bodily
injury. Placing someone in fear of death or imminent bodily injury differs from threatening another
with imminent bodily injury. Williams v. State, 827 S.W.2d 614, 616 (Tex. App.—Houston [1st
Dist.] 1992, pet. ref’d); see also Cooper v. State, 430 S.W.3d 426, 433-34 (Tex. Crim. App. 2014)
(Keller, P.J., concurring) (noting Williams’ construction of this issue “appears to be the unanimous
view of the courts of appeals that have addressed the issue” and the “view appears to be well-
taken”); 2 Mesquiti v. State, No. 04-03-00911-CR, 2005 WL 16192, at *1 (Tex. App.—San Antonio
Jan. 5, 2005, no pet.) (following Williams) (mem. op., not designated for publication). “The
2
Comparing the element of the offense of robbery which contains the phrase “places . . . in fear of” and the offense
of assault which requires a threat, Presiding Judge Keller further explained:
The theft aspect of robbery creates a situation in which fear is more likely to occur, even
in the absence of an actual threat. A person who has a gun in a holster, gives the store clerk a
menacing glance intended to place the clerk in fear of death, and says, “Give me your money,” has
committed a robbery even if an actual threat has not been conveyed. Likewise, a robber could
threaten one individual in a store while knowing that others present will have heard the threat. The
robber may not have threatened these other individuals, but if he knew the others would be placed
in fear, then he has (à la Hawkins) committed a robbery against them.
430 S.W.3d at 434.
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04-15-00721-CR
general, passive requirement that another be ‘placed in fear’ cannot be equated with the specific,
active requirement that the actor ‘threaten another with imminent bodily injury.’” Williams, 827
S.W.2d at 616. Under the “placed in fear” language, “the factfinder may conclude that an
individual perceived fear or was ‘placed in fear,’ in circumstances where no actual threats were
conveyed by the accused.” Id.; see also Cooper, 430 S.W.3d at 434.
In support of his position, Brite cites Smith v. State, 135 S.W.3d 259 (Tex. App.—
Texarkana 2004, no pet.). In Smith, however, the defendant was charged with the offense of
attempted sexual assault and the indictment alleged the defendant “did then and there by acts or
words threaten to cause, or place [the complainant] in fear that bodily injury would be imminently
inflicted.” 135 S.W.3d at 260-61 (emphasis added). The inclusion of the word “threaten” in the
indictment in Smith makes that decision readily distinguishable from the instant case. See Howard
v. State, 306 S.W.3d 407, 410-11 (Tex. App.—Texarkana 2010) (following Williams and noting
individual may be placed in fear where no actual threats are conveyed), aff’d, 333 S.W.3d 137
(Tex. Crim. App. 2011).
Because placing a complainant in fear of imminent death or bodily injury is not the
functional equivalent of threatening the complainant with imminent bodily injury, the trial court
did not err in denying Brite’s request for a lesser offense instruction. Brite’s issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
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