No. 03-07-00610-CR
Filed: March 2, 2010. DO NOT PUBLISH.
Appealed from the District Court of Hays County, 22nd Judicial District, No. CR-07-144, Honorable William Henry, Judge Presiding. Affirmed on Remand.
Before Chief Justice JONES, Justices PEMBERTON and WALDROP.
J. WOODFIN JONES, Chief Justice.
MEMORANDUM OPINION
Appellant Steven Grey was tried on an indictment accusing him of aggravated assault. Over appellant's objection, the trial court instructed the jury on the lesser included offense of simple assault, and the jury convicted appellant of the lesser offense. Following a rule first announced in Arevalo v. State, 943 S.W.2d 887, 890 (Tex. Crim. App. 1997), we held on original submission that the trial court reversibly erred by charging the jury on the lesser included offense because there was no evidence that appellant was guilty only of the lesser offense. Grey v. State, 269 S.W.3d 785, 789 (Tex. App.-Austin 2008). On the State's petition for discretionary review, the court of criminal appeals overruled Arevalo, reversed this Court's judgment, and remanded the cause to us to address appellant's two remaining points of error. Grey v. State, 298 S.W.3d 644, 651 (Tex. Crim. App. 2009). In point of error two, appellant contends that the trial court did not have jurisdiction to render a judgment of conviction for misdemeanor assault. When the jurisdiction of a district court is properly invoked to try a felony indictment, that court is authorized to proceed to judgment on any lesser included offense supported by the evidence, even if the lesser offense is a misdemeanor. See Tex. Code Crim. Proc. Ann. art. 4.06 (West 2005), art. 37.08 (West 2006); Cunningham v. State, 726 S.W.2d 151, 153 (Tex. Crim. App. 1987). The indictment in this cause alleged that appellant caused bodily injury to the complainant by strangling her with his hand, and that this assault was aggravated by appellant's use of his hand as a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(1), .02(a)(2) (West Supp. 2009). The district court authorized appellant's conviction for misdemeanor assault if the jury found that he caused bodily injury as alleged but that his hand was not a deadly weapon. We held on original submission that this lesser assault was included within the aggravated bodily injury assault alleged in the indictment. Grey, 269 S.W.3d at 788. We also held that the evidence supports appellant's conviction for the lesser offense. Id. at 790. Accordingly, we further hold that the trial court had jurisdiction to render judgment on the jury's verdict convicting appellant of misdemeanor bodily injury assault. Point of error two is overruled. In his third and final point of error, appellant contends that the trial court erred by refusing his request for an instruction authorizing his conviction for offensive physical contact. See Tex. Penal Code Ann. § 22.01(a)(3). A trial court must instruct on a lesser included offense, and therefore errs by refusing to do so, only if there is evidence that would permit a jury to rationally find that the defendant is guilty of the lesser included offense but not the greater offense alleged in the indictment. Hampton v. State, 165 S.W.3d 691, 693-94 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). This rule was not altered by the court of criminal appeals' opinion in this cause, which holds only that a trial court has the discretion to charge on a lesser included offense supported by the evidence even when the "guilty only" test is not met. See Grey, 298 S.W.3d at 649-50, and at 652 (Hervey, J., concurring). On original submission, we held that there was no evidence that appellant did not use his hand as a deadly weapon and therefore no evidence that he was guilty only of simple bodily injury assault. Grey, 269 S.W.3d at 788-89. Similarly, there is no evidence that appellant did not cause bodily injury to the complainant when he choked her until she lost consciousness. See Tex. Penal Code Ann. § 1.07(a)(8) (West Supp. 2009) (defining "bodily injury"). For these reasons, we hold that there is no evidence that appellant was guilty only of touching the complainant in an offensive manner. The trial court did not err by refusing the requested instruction. Point of error three is overruled. The judgment of conviction is affirmed.