No. 01-05-00518-CR.
Opinion issued December 21, 2006. Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 230th District Court. Harris County, Texas. Trial Court Cause No. 1024294.
TIM TAFT, Justice.
A jury found appellant, Aundri Lewis, guilty of aggravated assault. See Tex. Pen. Code Ann. § 22.02 (Vernon 2006). Appellant pleaded true to two enhancements for attempted murder and possession of a controlled substance. The jury assessed appellant's punishment at 45 years in prison. We determine (1) whether appellant is entitled to a new trial because the court reporter failed to record bench conferences and (2) whether the trial court erred by refusing to include a jury instruction on the lesser-included offense of assault. We affirm. Background On December 17, 2004, Kelli Howard was taken to the Memorial Hermann Katy Hospital ("the hospital") emergency room by a friend, Katherine Benson. Howard's injuries included extensive bruising on her legs and back, a broken left arm, and a change in her spine consistent with trauma. Prior to being taken to the hospital, Howard told Benson that appellant had beaten her with "a pole." Once Howard arrived at the hospital, she told Jennifer Endresen, an emergency room nurse at the hospital, and Paul Mercier, an emergency room nurse practitioner at the hospital, that she had been assaulted by three unknown Hispanic men in a hotel parking lot. She claimed that they had punched, kicked, and hit her with a stick. Endresen contacted the Houston Police Department ("HPD") about the assault of Howard. When officers from HPD arrived, Howard told the police that appellant was the one who had assaulted her. On December 19, 2004, after the assault, Howard's mother, Patsy Bee, went to Howard's apartment. Howard told her mother that appellant had beaten her with a closet rod. Bee took pictures of her daughter that day and contacted Detective Sandra Mills, with the Harris County Sheriff's Department Family Violence Unit, on December 28, 2004. On January 13, 2005, Howard provided Detective Mills with a statement. In that statement Howard, explained that she was at her apartment with appellant on December 17, 2004 when they "got into an argument over 20 dollars. . . . then it escalated into a physical fight." Howard admitted that she had hit him in the mouth. At first, appellant hit Howard with his hands, and then "he grabbed a stick" and "started hitting [Howard] with the wooden rod." Appellant hit Howard on her left arm and legs. Howard refused to pursue any criminal charges against appellant and testified at trial that she did not remember how she had received her injuries, who had inflicted them, or anything about December 17, 2004 because she was high on "fry," marijuana laced with phencyclidine ("PCP").
Howard referred to appellant as both her boyfriend and husband. It is unclear from the record which he was.
A toxicology report, conducted during Howard's visit to the hospital, showed that Howard tested positive for benzodiazepine (a sedative), cannabinoid (marijuana), and PCP.
Reporter's Record of Bench Conferences
In his first point of error, appellant argues that he is entitled to a new trial because the court reporter failed to record the bench conferences as required under the rules of appellate procedure. Appellant relies on Tanguma v. State to argue that rule 13.1 of the Texas Rules of Appellate Procedure requires a court reporter to record and to transcribe bench conferences "unless excused by an agreement of the parties." Specifically, appellant contends that because he did not waive his right to a court reporter, he may assert the court reporter's failure to record the bench conferences as automatic reversible error. The former Texas Rules of Appellate Procedure, specifically former rule 11(a)(1) and (2), required a record only when requested by the trial court or a party. Tex. R. App. P. 11(a)(1), (2), 49 Tex. B. J. 561 (Tex.Sup.Ct. and Tex. Crim. App. 1986, amended 1997); see Valle v. State, 109 S.W.3d 500, 508 (Tex.Crim.App. 2003). The current rule, rule 13.1 of the Texas Rules of Appellate Procedure, provides that the official court reporter must "unless excused by agreement of the parties, attend court sessions and make a full record of the proceedings." Tex. R. App. P. 13.1(a). Therefore, the current rule makes automatic a procedure that used to be conditioned on request. Valle, 109 S.W.3d at 508. However, section 52.046 of the Government Code provides that a party must request a court reporter to make a record of proceedings. Tex. Gov't. Code Ann. § 52.046 (Vernon 2005); see Polasek v. State, 16 S.W.3d 82, 88-89 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (en banc). Rule 13.1(a) conflicts with and must yield to section 52.046(a) of the Government Code. Polasek, 16 S.W.3d at 89; see Tex. Gov't. Code Ann. § 52.046 (requiring appellant who claims error based on failure to record court proceedings to preserve error by establishing, at minimum, that record was requested). The Tanguma court held as appellant contends, but the Court of Criminal Appeals has expressly disapproved of Tanguma and has instead required the complaining party to object to any failure of the court reporter to record a bench conference. Valle, 109 S.W.3d at 508 (holding that objection is still required when court reporter does not record bench conference); Washington v. State, 127 S.W.3d 111, 114 (Tex.App. — Houston [1st Dist] 2003, no pet.) (holding that appellant did not preserve alleged error arising from any failure of court reporter to transcribe voir dire proceedings because appellant had not requested court reporter to transcribe voir dire proceedings). Here, the record does not reflect that appellant objected to the court reporter's absence or that appellant requested that the court reporter transcribe the bench conferences. Accordingly, we hold that appellant did not preserve the alleged error arising from any failure of the court reporter to transcribe the complained-of bench conference. See Washington, 127 S.W.3d at 115; Polasek, 16 S.W.3d at 88-89; see also Tex. Gov't. Code Ann. § 52.046; Tex. R. App. P. 33.1 (stating general rule that error must be preserved by presenting complaint to trial court by timely request, objection, or motion and by obtaining ruling). We overrule appellant's first point of error. Lesser-Included Offense
In his second point of error, appellant argues that the trial court erred by refusing to include a jury instruction on the lesser-included offense of assault. Specifically, appellant argues that "[a] rational jury could have believed [Howard] was attacked and beaten by a group of individuals while high on 'wet,' and then had a fight with [appellant], during which he merely assaulted her by hitting her." Assault is committed when a person intentionally or knowingly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01 (Vernon 2006). A defendant is entitled to a lesser-included-offense instruction in the jury charge if (1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App. 2006) (quoting Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993)) ("the Rousseau test"). To determine if an offense is a lesser-included offense, we look to Code of Criminal Procedure article 37.09, which provides in relevant part: An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. . . . Tex. Code Crim. Proc. Ann. § 37.09(1) (Vernon 2006) (emphasis added). Here, appellant asked for a lesser-included-offense instruction based on facts not required to establish the commission of the offense charged. See Irving v. State, 161 S.W.3d 503, 505-06 (Tex.Crim.App. 2005) (holding that assault is not lesser-included offense of aggravated assault if "the conduct constituting the lesser-included offense for which Appellant requested an instruction is different from the conduct which was alleged in the charging instrument for Appellant's aggravated-assault charge."). Appellant requested that the lesser-included offense of assault be included because "it has been raised through the evidence of [Howard] giving several stories. It's possible that the jury could [believe] that a group of Hispanics in her first story made some of the injuries and then [appellant] made some of the other injuries and could possibly find him guilty of assault." The indictment alleged that appellant committed aggravated assault against Howard by using a deadly weapon, namely, an unknown object, a stick, or a wooden rod. Appellant asked for an instruction for the offense of assault stemming from the conduct of hitting Howard with his fists, rather than with an unknown object, a stick, or a wooden rod. See Irving, 161 S.W.3d at 506. The requirements of Texas Code of Criminal Procedure article 37.09 are not met here because the same facts or fewer than the same facts required to prove the greater aggravated-assault offense are not required to prove the assault offense on which appellant sought the charge. Id. Proof that appellant hit Howard with his fists is not required to prove aggravated assault by hitting her with an unknown object, a stick, or a wooden rod. Accordingly, we hold that the trial court did not err by refusing to include a jury instruction on the offense of assault as a lesser-included offense. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court. Panel consists of Justices Taft, Keyes, and Hanks. Do not publish. See Tex. R. App. P. 47.2(b).