DocketNumber： 14-05-00174-CR
Filed Date： 1/17/2006
Status： Precedential
Modified Date： 9/15/2015
Affirmed and Memorandum Opinion filed January 17, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00174-CR
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ROBERT LEE YOUNGBLOOD, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 960,408
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M E M O R A N D U M O P I N I O N
Robert Lee Youngblood appeals a conviction for aggravated assault of a family member[1] on the ground that the trial court erred by failing to instruct the jury on the lesser-included offense of terroristic threat. We affirm.
A defendant is entitled to an instruction on a lesser‑included offense if: (1) the statutory elements of the lesser‑included offense are within the proof necessary to establish the statutory elements of the charged offense as modified by the indictment; and (2) there is some evidence that would permit a rational jury to acquit the defendant of the greater, charged offense, while convicting him of the lesser-included offense. See Sorto v. State, 173 S.W.3d 469, 475-76 (Tex. Crim. App. 2005); Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005).
To establish the first prong, appellant=s brief states only:
To prove aggravated assault under Texas Penal Code ' 22.02, as it applied to this case, the state had to show that the appellant intentionally and knowingly threatened the complainant with imminent bodily injury and used or exhibited a deadly weapon while doing so. To prove terroristic threat under Texas Penal Code ' 22.07, the state had to prove that the appellant threatened to commit an offense of violence with the intent to place a person in fear of imminent serious bodily injury.
However, appellant=s brief gives no explanation of how the offense of terroristic threat: (1) is established by proof of the same or less than all the facts required to establish the commission of the aggravated assault in this case; (2) differs from that of aggravated assault only in the respect that a less serious injury or risk of injury to the same person suffices to establish its commission; (3) differs from that of aggravated assault only in the respect that a less culpable mental state suffices to establish its commission; or (4) consists of an attempt to commit the aggravated assault or an otherwise included offense. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). Therefore, appellant=s issue fails to demonstrate that terroristic threat was a lesser-included offense of the aggravated assault charged in this case.
Similarly, to establish the second prong, appellant=s brief states only:
The testimony of both of the complainant=s grandchildren was that they did not see the appellant actually point the gun at the complainant. The granddaughter testified that the appellant merely waived the gun at the ceiling as he approached the complainant and the grandson testified that the appellant left after pointing the gun at the grandfather. This was sufficient evidence to raise the issue of whether the appellant was guilty of only terroristic threat as to the complainant in this case.
Appellant=s brief thus wholly fails to explain how the evidence could have proved the elements of terroristic threat without also proving the elements of aggravated assault, such that a rational jury could have convicted him of the former, while acquitting him of the latter. Because appellant=s sole issue does not establish either of the prongs necessary to being entitled to a lesser-included offense charge, it is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed January 17, 2006.
Panel consists of Justices Fowler, Edelman and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty and assessed punishment at life imprisonment.