Opinion
No. 04-17-00398-CR
07-05-2018
Marcus DeAndre JOHNSON, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR7046
Honorable Steve Hilbig, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
Marcus DeAndre Johnson was convicted by a jury of assault of a family member by choking or strangulation. On appeal, Johnson contends the evidence is insufficient to prove the offense occurred in the State of Texas, and the trial court erred in denying his request for a lesser-included offense instruction in the charge. We affirm the trial court's judgment.
BACKGROUND
Johnson was indicted for assault of a family member by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the victim by applying pressure to the victim's throat or neck. During the charge conference, defense counsel requested the trial court to include a charge on the lesser-included offense of assault bodily injury, arguing the photographs and the testimony of the victim that indicated bruising and redness were injuries not consistent with choking. The trial court denied the request, noting a lesser-included offense instruction is only required if the evidence showed Johnson was guilty only of the lesser-included offense, not when the evidence showed he may have committed a lesser offense while in the course of committing a greater offense. Based on the evidence presented, the jury found Johnson guilty of the charged offense. Johnson appeals.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Johnson contends the evidence is insufficient to prove the offense occurred in the State of Texas which is necessary to establish jurisdiction to prosecute the offense. See TEX. PENAL CODE ANN. § 1.04 (West 2011). Johnson asserts he raised the issue of jurisdiction in his motion for directed verdict, which was denied.
In Leyva v. State, 552 S.W.2d 158, 162-63 (Tex. Crim. App. 1977), a similar argument was made asserting the trial court erred in denying the appellant's motion to dismiss because evidence that an offense occurred in El Paso County was not sufficient proof that the offense occurred in Texas. The Texas Court of Criminal Appeals rejected the argument, taking judicial notice that El Paso County is located in Texas. Id.; see also Waalee v. State, No. 09-07-00245-CR, 2008 WL 5622656, at *3 (Tex. App.—Beaumont Feb. 11, 2009, no pet.) (not designated for publication) (taking judicial notice that Jasper County is located in Texas to find evidence sufficient to show offense was committed in Texas); Barton v. State, 948 S.W.2d 364, 365 (Tex. App.—Fort Worth 1997, no pet.) (taking judicial notice that Denton County is located in Texas to reject argument that State failed to prove offense occurred in Texas); Garcia v. State, 819 S.W.2d 634, 636 (Tex. App.—Corpus Christi 1991, no pet.) (taking judicial notice that Goliad County is located in Texas to reject argument that State failed to prove offense occurred in Texas). Johnson concedes the victim and two officers testified the offense occurred in Bexar County. Because we may take judicial notice that Bexar County is located in Texas, we overrule Johnson's first issue.
LESSER-INCLUDED OFFENSE
In his second issue, Johnson contends the trial court erred in denying his request for a lesser-included offense instruction on assault bodily injury.
A. Lesser-Included Offense Analysis
In determining whether the trial court erred in denying Johnson's request, we engage in a two-step lesser-included offense analysis. Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). First, we compare the elements and the facts of the offense alleged in the indictment with the elements of the potential lesser-included offense to determine whether the lesser-included offense is included within the proof necessary to establish the charged offense. Id. at 535. The second step of the analysis requires us to determine whether there is some evidence in the record that would permit a rational jury to find that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. at 536. The evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense." Id. (internal quotation omitted).
B. Application
Under the first step of the analysis, the State concedes the requested lesser offense of assault bodily injury is a lesser-included offense of the charged offense. See Webb v. State, No. 10-16-00212-CR, 2017 WL 4543660, at *3 (Tex. App.—Waco Oct. 11, 2017, pet. ref'd) (not designated for publication) (holding misdemeanor assault is lesser-included offense of assault by occlusion); Harrison v. State, No. 06-11-00196-CR, 2012 WL 1813519, at *6 (Tex. App.—Texarkana May 18, 2012, pet. ref'd) (not designated for publication) (same).
Under the second step of the analysis, however, Johnson asserts in his brief that the evidence establishes he was guilty only of the lesser offense because the jury was free to disbelieve the testimony that the victim's normal breathing or circulation of blood was impeded. "It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted." Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). In this case, the record would need to contain some affirmative evidence to negate the evidence that the victim was choked to entitle Johnson to the lesser-included offense instruction. See Hall, 158 S.W.3d at 474. Simply disbelieving the victim's testimony is not enough. See Jennings v. State, No. 09-11-00665-CR, 2013 WL 2732582, at *3 (Tex. App.—Beaumont June 12, 2013, no pet.) (not designated for publication) ("While the jury was free to reject D.B.'s account regarding how the injury to her neck occurred, or to reject her testimony that Jennings had choked her, the fact that the jury can reject a witness's testimony is not sufficient to provide the jury a rational basis on which to convict on a lesser-included offense."); Harrison, 2012 WL 1813519, at *7 ("Because there is less than a scintilla of affirmative evidence that Cochran was not choked, the second step of the Hall test has not been met."). Accordingly, because Johnson relies on the jury "disbeliev[ing] crucial evidence pertaining to the greater offense," he failed to satisfy the second step of the analysis, and the trial court did not err in denying Johnson's request. See Skinner, 956 S.W.2d at 543.
CONCLUSION
The trial court's judgment is affirmed.
Patricia O. Alvarez, Justice