No. 10-05-00167-CR
Opinion delivered and filed January 11, 2006. DO NOT PUBLISH.
Appeal from the 235th District Court, Cooke County, Texas, Trial Court No. 04-013. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
FELIPE REYNA, Justice.
A jury convicted Ronald Lane Chapman of aggravated robbery and assessed his punishment at seventy-three years' imprisonment. Chapman contends in three points that: (1) the court abused its discretion by denying eight challenges for cause; (2) the court erred by failing to submit an instruction on the lesser-included offense of robbery; and (3) his right to due process was violated because the district attorney had represented him in a prior felony case which resulted in his conviction and which was used to enhance the punishment in this case. We will affirm.
Challenges for Cause
Chapman contends in his first point that the court abused its discretion by denying challenges for cause he asserted against eight members of the venire panel. To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury. Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App. 2003); accord Stewart v. State, 162 S.W.3d 269, 280 (Tex.App.-San Antonio 2005, pet. ref'd). Here, Chapman did not request additional peremptory challenges. Thus, he has not preserved this issue for appellate review. See id. Accordingly, we overrule Chapman's first point. Lesser-Included Offense
Chapman contends in his second point that the court erred by failing to submit an instruction on the lesser-included offense of robbery. A defendant is entitled to an instruction on a lesser-included offense if (1) the requested charge is a lesser-included offense of the offense charged, and (2) there is some evidence which would permit a jury to rationally find that, if the defendant is guilty, he is guilty of only the lesser offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004). For there to be "some evidence" to permit a finding on a lesser offense, the record must contain "some evidence directly germane to the lesser-included offense." Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003). Thus, when the entitlement to an instruction on a lesser-included offense depends on whether the knife used in the crime is a deadly weapon, there must be evidence in the record "affirmatively characterizing the knife as non-deadly." Lawrence v. State, 783 S.W.2d 789, 793 (Tex.App.-El Paso 1990, no pet.). Here, the complainant testified that Chapman threatened her with a knife and demanded all the money from the cash register and her purse. The State offered the knife in evidence, and she identified it as the weapon with which he had threatened her. An officer who responded to the call found the knife lying in the grass in the area where Chapman had fled the scene. He testified that the knife is twelve inches long and that the knife is a deadly weapon. Another officer who responded to the call also testified that the knife is a deadly weapon. Chapman did not cross-examine these officers on this issue. He offered no other evidence to suggest that the knife he used was anything other than a deadly weapon. Because there is no affirmative evidence in the record suggesting that the knife Chapman used is not a deadly weapon, he was not entitled to an instruction on the lesser-included offense of robbery. See Hampton, 109 S.W.3d at 441; Lawrence, 783 S.W.2d at 793. Accordingly, we overrule Chapman's second point. District Attorney's Prior Representation
Chapman contends in his third point that his right to due process was violated because the district attorney had represented him in a prior felony case which resulted in his conviction and which was used to enhance the punishment in this case. A defendant's right to due process is violated when his defense counsel in a particular case later serves as a prosecutor in the same case. See State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 6 (Tex.Crim.App. 1990) (orig. proceeding); Ex parte Spain, 589 S.W.2d 132, 134 (Tex.Crim.App. 1979); In re Reed, 137 S.W.3d 676, 679 (Tex.App.-San Antonio 2004, orig. proceeding); Canady v. State, 100 S.W.3d 28, 31-32 (Tex.App.-Waco 2002, no pet.). The district attorney's representation of Chapman in the prior felony proceeding did not disqualify her from prosecuting him in this case, even though the prior felony conviction was used as for enhancement purposes in this case. See Eleby v. State, 172 S.W.3d 247, 249-50 (Tex.App.-Beaumont 2005, pet. filed). Accordingly, we overrule Chapman's third point. We affirm the judgment.