HERNAN VILLEGAS v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant appeals his conviction for robbery.   After the jury found appellant guilty, the trial court assessed punishment at eight years' confinement.   In one point of error, appellant contends the trial court erred by failing to include the lesser-included offenses of aggravated assault and assault in the jury charge.   For the following reasons, we affirm the trial court's judgment.

Factual Background

Tommy Lynn Stanford, III was the State's first witness.   Stanford testified that on the night of the offense, he was working at a Boot Town Western Warehouse.   Appellant had come in the store and was looking at merchandise for approximately an hour and a half hour.   When he walked out, Cara Bailey, the assistant manager of the store, noticed something bulging out of his shirt.   She followed him out of the store with a pen and paper so she could write down his license plate.   Appellant disappeared behind the side of the building, and Stanford came out and continued to follow appellant.   Stanford followed him behind the building to a dumpster.   Appellant had on his pants and two other pairs of stolen pants which were dropped around his knees.   Stanford asked appellant to stop and return the merchandise and appellant said, “No.” Appellant attempted to run away and tripped on the pants.   Stanford again asked him to stop and return the merchandise.   Again, appellant refused.   When Stanford reached toward appellant, appellant reached behind his back and grabbed a pair of pliers out of his back pocket and lunged toward Stanford stabbing him, ripping his shirt, and causing a red lesion on the skin.   Stanford backed off and dialed 911 with his cell phone.   Appellant got up and ran away with the merchandise around his ankles.

The trial court's charge to the jury included the offenses of aggravated robbery and robbery.   The trial court denied appellant's request to submit the lesser-included offenses of aggravated assault and assault to the jury.   The jury found appellant guilty of robbery.   This appeal followed.

Lesser-Included Offenses

Appellant argues that the trial court erred by failing to include the lesser-included offenses of aggravated assault and assault in the jury charge because there was evidence presented showing, if he was guilty, he was guilty of only those two lesser offenses.   See Tex. Penal Code Ann. §§ 22.01, 31.03 (Vernon 1994).

A two-part test (“Royster” test) is used to determine whether a lesser-included offense may be submitted to a jury.  Grey v. State, 298 S.W.3d 644, 645 (Tex.Crim.App.2009);  Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App.2004);  Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993).   First, to be considered a lesser-included offense, the lesser offense must be included within the proof necessary to establish the offense charged.  Campbell, 149 S.W.3d at 152.   Second, some evidence must exist in the record that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser offense.  Rousseau, 855 S.W.2d at 672-73;  Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981).

Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.  Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994).   However, it is not sufficient that the jury might have disbelieved evidence pertaining to the greater offense.  Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App.2003);  Skinner v. State, 956 S.W.2d 532, 534 (Tex.Crim.App.1997).   There must be some evidence directly germane to a lesser-included offense for the fact finder to consider before an instruction on a lesser-included offense is warranted.  Hampton, 109 S.W.3d at 441;  Skinner, 956 S.W.2d at 534.

Application

On appeal, appellant contends that the trial court erred in failing to include in the charge the lesser-included offenses of aggravated assault and assault.   Appellant argues the theft was complete when he took the merchandise and walked out of the store.   Therefore, he asserts the assault was a separate unrelated offense.   However, the definition of robbery includes the following:  “In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.  Tex. Penal Code Ann. § 29.01 (Vernon 1994).

The evidence in the record does not show that the assault occurred at any time other than in the immediate flight from the theft.   Appellant does not direct this Court to any evidence in the record to show the appellant was guilty only of theft and a separate assault.   As noted above, to raise a lesser offense, there must be some evidence directly germane to the lesser offense.   We resolve the issue against appellant.

We affirm the trial court's judgment.

MICHAEL J. O'NEILL JUSTICE