Opinion
No. 01-07-00175-CR
Opinion issued April 17, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 400th District Court Fort Bend County, Texas, Trial Court Cause No. 43,595.
MEMORANDUM OPINION
In two points of error, appellant complains that the trial court erred by refusing to charge the jury on assault and terroristic threat as lesser-included offenses to aggravated assault with a deadly weapon. We address only the second prong of the test set out in Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App. 2007) — whether there was some evidence adduced at trial to support an instruction that appellant was guilty only of (1) terroristic threat, or (2) assault. Because we conclude appellant has not met this second prong, we overrule his complaint and affirm the judgment. Appellant was charged with intentionally and knowingly threatening the victim with imminent bodily injury by the use and exhibition of a firearm. A jury found appellant guilty of the offense as charged in the indictment and assessed punishment at fifteen years' imprisonment. Appellant filed timely notice of appeal. Appellant did not testify at trial. Appellant's girlfriend testified that she did not see the incident. The testimony of the State's witnesses described appellant as conducting himself as alleged in the indictment. Consequently, there was no evidence to establish terroristic threat or assault as valid, rational alternatives to the charged offense. See Owens v. State, No. 05-01-01060-CR, 2002 WL 1838973, at *1 (Tex.App.-Dallas August 13, 2002, no pet.) (not designated for publication) (finding no evidence to establish terroristic threat as a valid, rational alternative to aggravated assault); see also Jones v. State, 241 S.W.3d 666, 671-72 (Tex.App.-Texarkana 2007, no pet.) (finding no evidence to establish assault as a valid, rational alternative to aggravated assault.) We overrule appellant's points of error. The judgment is affirmed.
Appellant suggests that the failure of law enforcement to check for fingerprints on a shotgun found in the apartment of appellant's girlfriend constitutes evidence that appellant had not used or exhibited a deadly weapon. We find such a speculative inference is not evidence and cannot be used to support the submission of issues sought by appellant.