MICHAEL BERNARD ROBINSON v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Lang–Miers

A jury convicted appellant of robbery.   The trial court assessed punishment, enhanced by two prior felony convictions, at 25 years in the Institutional Division of the Texas Department of Criminal Justice.   In his sole issue on appeal, appellant argues that the trial court erred by refusing to charge the jury on the lesser included offense of assault.   Because all dispositive issues are settled in law, we issue this memorandum opinion.  Tex.R.App. P. 47.2(a), 47.4.   We affirm the trial court's judgment.

Appellant and the complainant lived together for several months until the complainant ended their relationship.   She said appellant was upset over the breakup.   The complainant testified she went to a night club one evening after the breakup and had been at the club about an hour when appellant arrived.   She tried to leave the club when she saw appellant, but appellant walked up to her, said “Oh, you're out whoring,” and “put his forearm in [her] throat.”   She struck him, and they began to fight.   At some point, they went outside and continued to fight.   The complainant had her car keys in her hand as she swung at appellant, and appellant grabbed her hand and tried to take the keys.   She testified that “the more I held on to the keys, the harder he struck me in the back of my head, so I just loosened the grip on the keys.”   Appellant took the keys and drove off in the complainant's car.   Sometime later, appellant called the complainant and told her the car was parked at a different club around the corner from the club where the incident happened.   A friend took her to get the car.   The keys were in the car;  two tires on the car were flat.

The State charged appellant with robbery by causing bodily injury to the complainant during the course of committing theft.   On appeal, appellant argues that the trial court erred by refusing to charge the jury on the lesser included offense of assault because he contends that there is evidence from which the jury could have found that the bodily injury the complainant suffered did not occur during the commission of theft.¹

When we review a complaint that the trial court committed jury charge error, we first determine whether the charge contains error.   Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App.2009).   If we determine there is error in the charge, then we determine whether that error was harmful.   See id.   Unless there is error, however, we do not reach the question of harm.   See Posey v. State, 966 S.W.2d 57, 60 (Tex.Crim.App.1998).

We use a two-step test to determine whether a charge on a lesser included offense is required.  Hall v. State, 225 S.W.3d 524, 535–36 (Tex.Crim.App.2007);  Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981).   The first step is to determine whether the lesser offense is actually included in the proof necessary to establish the greater offense.   Hall, 225 S.W.3d at 535–36;  Royster, 622 S.W.2d at 446.   The second step is to determine whether there is evidence in the record showing that if the defendant is guilty, he is guilty only of the lesser offense.  Hall, 225 S.W.3d at 536;  Royster, 622 S.W.2d at 446.   Evidence that is more than a scintilla may be sufficient to entitle a defendant to a charge on the lesser offense.   See Hall, 225 S.W.3d at 536.   But “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense․”  Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App.2003), abrogated on other grounds by Grey v. State, 298 S.W.3d 644 (Tex.Crim.App.2009).   Instead, the record must contain evidence establishing that if the defendant is guilty, he is guilty only of the lesser offense.  Hall, 225 S.W.3d at 536.

Appellant and the State agree that assault is a lesser included offense of robbery.   The question on appeal is whether the evidence established that if appellant was guilty, he was guilty only of assault.

Appellant argues that the State did not prove the theft component of the robbery charge, and, consequently, he was entitled to an instruction on the lesser included offense of assault.   Appellant points to evidence that the complainant frequently allowed him to drive the car and she could not prove she owned the car.   He argues that based on the evidence the jury could have rationally found that the complainant did not own the car or that, even if she did, she gave him permission to drive the car.

The State argues that there is no evidence upon which a rational jury could find appellant guilty only of assault.   It argues that the evidence showed that appellant did not own a set of keys to the car and that appellant did not have permission to take the keys or the car the night of the robbery.   We agree with the State.

The undisputed evidence showed that the complainant owned the car, that appellant did not own a set of keys to the car, and that appellant did not have permission to take the keys or the car the night of the incident.   Having reviewed the record, we conclude there is no evidence that would permit a rational jury to find appellant guilty only of assault.   Consequently, we further conclude that the trial court did not err by refusing to instruct the jury on the lesser included offense of assault.   We resolve appellant's sole issue against him.

We affirm the trial court's judgment.

FOOTNOTES

FN1. The reporter's record shows that appellant objected to the trial court's refusal to instruct the jury on the lesser included offense of assault as follows:  “Defense renews it's [sic] objection to the admission of a lesser included offense of obstruction [sic] on the offense of assault.”   The State does not contend that this objection was insufficient to preserve the issue for our review.   We assume without deciding that the objection preserved the issue for our review..  FN1. The reporter's record shows that appellant objected to the trial court's refusal to instruct the jury on the lesser included offense of assault as follows:  “Defense renews it's [sic] objection to the admission of a lesser included offense of obstruction [sic] on the offense of assault.”   The State does not contend that this objection was insufficient to preserve the issue for our review.   We assume without deciding that the objection preserved the issue for our review.

ELIZABETH LANG–MIERS JUSTICE