Schreyer v. State

Full title: ULRICH EDWARD SCHREYER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 29, 2005

No. 05-03-01127-CR (Tex. App. Jul. 29, 2005)

Opinion

No. 05-03-01127-CR

Opinion filed July 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-01177-UK. Affirmed.

Before Justices BRIDGES, RICHTER, and LANG.

OPINION

Opinion By Justice LANG.

Ulrich Edward Schreyer,¹ appellant, was indicted for aggravated assault of a public servant, which was enhanced by a prior conviction. The jury found him guilty of the lesser included offense of aggravated assault and assessed his punishment at twenty years of confinement and a $5,000 fine. Appellant brings seven issues on appeal that essentially argue four points, which claim the trial court erred when it: (1) denied his motion for mistrial; (2) failed to charge the jury on the lesser included offenses of deadly conduct, resisting arrest, and misdemeanor assault; (3) did not limit the definitions of knowingly and intentionally in the jury charge; and (4) denied his motion to suppress. We decide appellant's issues on appeal against him. The trial court's judgment is affirmed.

1 The record contains two different spellings of appellant's last name: (1) Schreyer; and (2) Shreyer. In addition, the record contains references to appellant's use of the aliases Edward Schumann and Ernie Elfa Weidenfeller.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant went to CarMax, a used car dealership in Irving, to sell a Cadillac Seville. In order to complete the sale, appellant gave Selena Ninah, an employee in CarMax's business office, the required documentation on the car, and she made a copy of appellant's driver's license. Ms. Ninah told appellant it would take thirty minutes for her to process the paperwork, so appellant left CarMax stating he would return later. Ms. Ninah secured reports on the car from several sources, TWIX, CARFAX, and NICB, and gave the information to another CarMax employee, Jay Melton. Mr. Melton called the police because the reports revealed the car was stolen. Officer Reed, who was in unform, responded to the call from CarMax to investigate Mr. Melton's report. Officer Reed called Detective Bailey, a plain-clothes auto theft investigator, for assistance. Then, Officer Reed, Detective Bailey, and Mr. Melton waited for appellant to return. When appellant returned to CarMax, Mr. Melton, Officer Reed, and Detective Bailey approached him. Detective Bailey told appellant that he needed to speak with him. Detective Bailey did not identify himself as a police officer. Appellant turned away from Detective Bailey and saw Officer Reed. In response to seeing the uniformed officer, appellant began to back away. Officer Reed grabbed appellant's belt. Detective Bailey saw appellant reach into his waistband. Detective Bailey yelled, "He's got a gun," and a struggle ensued. The CarMax employees took cover behind the counter. Detective Bailey and appellant fell to the ground struggling over the gun, which was a derringer. Appellant was attempting to put the derringer into his own mouth and Detective Bailey felt him pulling the trigger. During this time, Officer Reed attempted to subdue appellant, first with words, then by hitting him with her hand. When these methods failed, Officer Reed told appellant she would shoot him and he responded, "Go ahead. I want to die." Officer Reed was afraid she might accidentally shoot Detective Bailey, so instead, she began hitting appellant with her baton. Because her attempts to subdue appellant failed, Officer Reed used pepper spray. When appellant released the derringer, Detective Bailey threw it across the floor. While Detective Bailey was attempting to retrieve the derringer, appellant started getting up from the floor. Detective Bailey yelled, "She needs help." In response, Brian Dunn, a CarMax employee, jumped on appellant's back and placed him in a choke hold. After police backup arrived, appellant was arrested and read his Miranda ² warnings. When appellant was initially processed into the jail, the arresting officers were unable to obtain a readable set of fingerprints. They also believed appellant was lying about his name. Stacy Curtis, a jail supervisor, asked appellant to allow her to take another set of fingerprints. In response, appellant told her he had soaked his hands in a chemical that had eaten away his fingerprints. After looking at his fingers, Curtis concluded she would not be able to obtain a readable set of fingerprints. Curtis asked appellant if there was someone available who could verify his identity. He answered that there was not. As a result, Curtis discussed with appellant the necessity of verifying his identity so the book-in process could be completed. Appellant requested an attorney. Curtis told him that it was his right to speak with an attorney, but she also told him she needed to know his true name so the book-in process could be completed and that he could not use the telephone because he could not be booked in. Curtis did not attempt to leave the cell or end the conversation after appellant requested an attorney. Appellant and Curtis made small talk for approximately fifteen to twenty minutes and during their conversation, appellant asked Curtis to "just listen." After their conversation, appellant requested some paper, wrote down his name and another alias, Ernie Elfa Weidenfeller, and gave it to Curtis. Appellant also told Curtis that he was on federal probation and believed there was an outstanding federal warrant for him. As Curtis was leaving, appellant asked her if he would be charged with a federal offense because he had taken the car across state lines. Curtis told him she did not know but she would tell the officers he wanted an answer to that question. Before trial, appellant moved to suppress his statements regarding his identity, which the trial court denied. At the hearing on appellant's motion to suppress, appellant and the State stipulated to the following facts: (1) appellant told the arresting officers he "needed an attorney"; (2) the arresting officer gave appellant his Miranda warnings; and (3) appellant refused to give any information about himself. In separate indictments, appellant was charged with the aggravated assault of public servants, namely Officer Reed and Detective Bailey. The indictments also alleged a prior conviction for receiving stolen property. The indictments were tried together in a single jury trial. During deliberations, the jury sent the trial court a note inquiring whether they were supposed to have Defendant's Exhibit 1. The trial court determined the jurors were not supposed to have Defendant's Exhibit 1. The trial judge questioned the presiding juror, separately, and learned that all of the jurors had read the document or were at least knowledgeable of it. The trial court announced it would instruct the jurors to disregard Defendant's Exhibit 1. Appellant moved for a mistrial, and the State joined the motion. The trial court denied the motion. The trial court admonished the jurors as a group. Then, the trial court asked each juror, individually, if he or she understood the trial court's instruction and whether he or she was able to and intended to abide by the instruction. All twelve jurors responded that they understood the instruction and would abide by it. The jury acquitted appellant of the charge of aggravated assault of a public servant with respect to Officer Reed and found appellant guilty of the lesser included offense of aggravated assault of Detective Bailey. After the verdict was read, the trial court questioned each juror regarding whether they had followed his instruction to disregard. Each of the twelve jurors stated they had followed the trial court's instruction to disregard and the contents of the document played no role in their finding appellant guilty of the aggravated assault of Detective Bailey. After hearing evidence on punishment, the jury found the enhancement paragraph true and assessed appellant's punishment at twenty years of confinement and a $5,000 fine.

II. MISTRIAL JURY DELIBERATIONS

In his first issue on appeal, appellant argues the trial court erred when it refused to declare a mistrial after learning the jury had viewed a document not in evidence during their deliberation of appellant's guilt. The State responds that the trial court did not abuse its discretion when it denied appellant's motion for a mistrial and appellant failed to object to the trial court's consideration of the jurors' post-verdict testimony.³ We decide this issue against appellant.

A. Standard of Review

The decision to deny a motion for mistrial is within the discretion of the trial court. Edwards v. State, 106 S.W.3d 833, 838 (Tex.App.-Dallas 2003, pet. ref'd) (citing Rousseau v. State, 855 S.W.2d 666, 684 (Tex.Crim.App. 1993)). An appellate court reviews a trial court's decision to deny a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (citing State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993)).

B. Applicable Law

A mistrial is an extreme remedy for prejudicial events occurring during the trial process. Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). However, a prompt instruction to disregard will ordinarily cure the prejudicial effect. See Ladd, 3 S.W.3d at 567. The jury is presumed to follow the trial court's instruction to disregard improperly admitted evidence in the absence of evidence indicating the members of the jury failed to do so. Gibson v. State, 29 S.W.3d 221, 225 (Tex.App.-Houston [14^th Dist.] 2000, pet. ref'd); see Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999); Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998) (presuming jury generally follows trial court's instruction unless defendant presents evidence to rebut presumption). Texas Rule of Appellate Procedure 21.3(f) requires a defendant in a criminal action to be granted a new trial "when, after retiring to deliberate, the jury has received other evidence." Tex.R.App.P. 21.3(f); see Bustamante v. State, 106 S.W.3d 738, 743 (Tex.Crim.App. 2003). A two-prong test must be satisfied for a defendant to obtain a new trial: (1) the evidence must have been received by the jury; and (2) the evidence must be detrimental or adverse to the defendant. Bustamante, 106 S.W.3d at 743. If a trial court instructs a jury to disregard the other evidence and that instruction is found to be effective, it is as though the evidence was never received by the jury. Id.

C. Application of the Law to the Facts

The "other evidence" viewed by the jury was Defendant's Exhibit 1, a supplemental report by Curtis narrating her discussion with appellant regarding his true identity. The narration also states appellant told Curtis he uses the alias Ernie Elfa Weidenfeller, there was a United States Marshall's warrant for him, he had stolen a vehicle and taken it across state lines, and he had soaked his hands in chemicals to disguise his fingerprints. It also lists the "offense/incident/arrest" as attempted capital murder. Defendant's Exhibit 1 was not offered or admitted into evidence at trial. Rather, it was admitted during the pretrial hearing on appellant's motion to suppress. However, it was included by mistake with the exhibits given to the jurors during deliberations. It appears that the jurors were in deliberations for approximately one hour before they sent the trial court a note inquiring whether they were supposed to have Defendant's Exhibit 1. The trial court instructed the jury to disregard the document and ascertained that each juror understood the instruction and intended to abide by it. The pivotal issue is whether the "other evidence" ( i.e., Defendant's Exhibit 1) was "received" by the jury within the meaning of Texas Rule of Appellate Procedure 21.3(f) requiring appellant to receive a new trial. See Tex.R.App.P. 21.3(f). The trial court specifically instructed the jury to disregard Defendant's Exhibit 1. After receiving the instruction and completing deliberations, the jury acquitted appellant of the charge of the aggravated assault of a public servant, namely Officer Reed, and found appellant guilty of the lesser included offense of the aggravated assault of Detective Bailey. In the absence of evidence indicating the jury failed to follow the trial court's instruction to disregard, we presume they followed the instruction. Accordingly, the jury did not receive Defendant's Exhibit 1, and any error associated with that exhibit was cured by the trial court's instruction. Now, we elaborate in order to address the position taken by the dissent. With all due respect, we conclude the dissent is at variance with the Texas Court of Criminal Appeals's decision in Bustamante, which we are bound to follow. The record before us fits well within the scope of the rule forged by the Texas Court of Criminal Appeals in Bustamante, which involved a more complex record setting forth detailed facts about the extent of each juror's review of the "other evidence" and the effect on each juror of that review. We have no such detailed record here. The record contains only the trial court's inquiry of the presiding juror and his somewhat general responses, and the trial court's inquiry of the individual jurors as to their ability to disregard the "other evidence" if instructed to do so. Accordingly, we cannot say Bustamante compels us to conclude the "other evidence" was "received" by the jury. We note that in Bustamante, the Texas Court of Criminal Appeals addressed a case where the accused faced the death penalty for having committed capital murder. Before the accused was found guilty of capital murder and sentenced to death, the statement of the accused's brother was erroneously provided to the jury. Bustamante, 106 S.W.3d at 738, 741. The statement addressed the actions of the accused before and after the alleged murder. Id. at 741-42. The Texas Court of Criminal Appeals concluded that the curative instruction was not shown to be ineffective in alleviating the prejudicial effect of the improperly received evidence. Id. at 744. In contrast to the death penalty punishment in Bustamante, appellant was charged with the aggravated assault of a public servant, a first-degree felony, which has a punishment range of five to ninety-nine years or life imprisonment, and a fine not to exceed $10,000. See Tex. Pen. Code Ann. §§ 12.32, 22.02(b)(2) (Vernon 2003 Supp. 2004-05). Interestingly, after being instructed not to consider the report, the jury declined to find appellant guilty of that first-degree charge. Instead, they found him guilty of the lesser included offense of aggravated assault, a second-degree felony, which prescribed a punishment range of two to twenty years of confinement and a fine not to exceed $10,000. See Tex. Pen. Code Ann. §§ 12.33, 22.02(a)(2) (Vernon 2003 Supp. 2004-05). However, because the jury found the enhancement paragraph true, his punishment range was elevated back to that of a first-degree felony. See Tex. Pen. Code Ann. §§ 12.32, 12.42(b) (Vernon 2003 Supp. 2004-05). The jury sentenced appellant to twenty years of confinement and fine of $5,000, far less than the maximum sentence allowed by law.⁴ Additionally, in contrast to the case before us, in Bustamante, the trial court examined each member of the jury once it was determined the statement had been provided to the jury. Bustamante, 106 S.W.3d at 742. The Texas Court of Criminal Appeals recounted that five jurors indicated they learned nothing "new" from the statement; three said they learned that Bustamante was engaged in a prior action that involved the beating of and stealing of valuables from persons that the statement described as "wetbacks"; four said they learned of an incident after the alleged murder where Bustamante attempted to break into another vehicle occupied by a sleeping person; and one juror said she also learned that Bustamante told his brother before the alleged murder occurred that he intended to rob someone. Id. Nevertheless, all jurors said they could completely disregard the exhibit if instructed to do so. Id. The Texas Court of Criminal Appeals concluded that, under the circumstances presented in the record, any error associated with the statement was cured by the trial court's instruction to disregard and the statement was not "received" by the jury. Id. at 744. In this case, only the presiding juror was examined by the trial court as to the dissemination and use of the report. We are not advised that either the State or appellant asked that the trial court examine the entire jury. The presiding juror advised the trial court that all the jurors had read or were at least knowledgeable of the report. Therefore, the specific views of each juror and the extent of their individual contact with the report or its contents are not in the record. In contrast to Bustamante, this record shows less potential prejudice because only the presiding juror was questioned and his responses lack specificity. When later polled as a group by the trial court, each juror advised the trial court that he could completely disregard the report. Accordingly, each juror was so instructed. As an intermediate court of appeals, we are bound by stare decisis. See Peek v. State, 106 S.W.3d 72, 81 (Tex.Crim.App. 2003). We will follow the decisions of our state's highest criminal court to the extent the facts and circumstances of the case we review fall within the parameters of the Texas Court of Criminal Appeals's prevailing opinions. The facts before us are not outside the scope of the rule enunciated in Bustamante. Rather, the facts in the record before us fall well within its bounds. Accordingly, we will not vary from the rule in Bustamante. We conclude the trial court did not abuse its discretion by denying appellant's motion for a mistrial. Appellant's first issue on appeal is decided against him.

III. LESSER INCLUDED OFFENSES

In his second, third, and fourth issues on appeal, appellant argues the trial court erred when it failed to instruct the jury on the lesser included offenses of deadly conduct, resisting arrest, and misdemeanor assault of a public servant. The State responds that deadly conduct, resisting arrest, and misdemeanor assault of a public servant are not lesser included offenses of aggravated assault and the evidence does not support a charge on these offenses. These issues are decided against appellant.

A. Standard of Review

An appellate court reviews a trial court's refusal to include a lesser included offense in the jury charge to see if there is some evidence establishing the lesser included offense. See Willis v. State, 936 S.W.2d 302, 307 (Tex.App.-Tyler 1996, pet. ref'd). Accordingly, an appellate court reviews all of the evidence presented at trial to determine if the trial court erred by failing to give a charge on a lesser included offense. Rousseau, 855 S.W.2d at 673. Further, when reviewing whether a trial court erred by refusing to include an instruction on a lesser included offense in the jury charge, an appellate court does not address the weight and credibility of the defendant's version of events. See Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992) ; see also Willis, 936 S.W.2d at 307; Mendivil v. State, 812 S.W.2d 629, 631 (Tex.App.-El Paso 1991, no pet.).

B. Applicable Law

An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See Tex. Code Crim. Proc. Ann. Art. 37.09(1) (Vernon 1981 Supp. 2004-05); Irving v. State, 161 S.W.3d at 503, 505 (Tex.Crim.App. 2005). A defendant is entitled to a lesser included offense instruction in the jury charge if: (1) the requested charge is a lesser included offense of the offense charged; and (2) there is some evidence that if the defendant is guilty, he is guilty only of the lesser offense. See Irving, 161 S.W.3d at 505; Rousseau, 855 S.W.2d at 672. However, just because a lesser offense is included within the proof of the offense charged does not mean that a charge on the lesser offense is required. Broussard v. State, 642 S.W.2d 171, 173-74 (Tex.Crim.App. 1982). The evidence must establish that the lesser included offense is a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2001); Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997). Where the conduct constituting the lesser offense is not the same as the conduct charged in the indictment, the lesser offense is not a lesser included offense. Irving, 161 S.W.3d at 506. There are two ways the evidence may indicate that a defendant is guilty only of the lesser offense. Saunders, 840 S.W.2d at 391-92. First, there may be evidence that refutes or negates other evidence establishing the greater offense. Id. Second, the evidence presented may be subject to different interpretations. Id. It is well established that if evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the trial court's charge. Id. at 391. However, if a defendant either offers evidence that he committed no offense or presents no evidence, and there is no evidence showing he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required. Bignall v. State, 887 S.W.2d 21, 22-24 (Tex.Crim.App. 1994); see also Nash v. State, 115 S.W.3d 136, 139 (Tex.App.-Texarkana 2003, no pet.).

C. Application of the Law to the Facts

Appellant was indicted for the aggravated assault of a public servant, namely Detective Bailey.⁵ A person commits assault if he intentionally or knowingly threatens another with imminent bodily injury. See Tex. Penal Code Ann. § 22.01(a)(2) (Vernon Supp. 2004-05).⁶ An assault is aggravated when the accused uses or exhibits a deadly weapon. See Tex. Penal Code § 22.02(a)(2) (Vernon Supp. 2004-05). An aggravated assault is elevated from a second-degree felony to a first-degree felony if it is committed against a public servant lawfully discharging an official duty. See Tex. Penal Code Ann. § 22.02(b)(2). Appellant requested that the trial court include the lesser included offenses of deadly conduct, resisting arrest, and misdemeanor assault in the jury charge. The trial court denied appellant's request, but the jury charge did contain the lesser included offense of aggravated assault.

1. Deadly Conduct as a Lesser Included Offense

A person commits the offense of deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. See Tex. Penal Code § 22.05(a) (Vernon 2003 Supp. 2004-05). A comparison of the statutes indicates that the proof required for deadly conduct is not the same or less than the proof required to establish aggravated assault of a public servant. Compare Tex. Pen. Code Ann. § 22.01(a)(2), (b)(1) and Tex. Penal Code § 22.02(a)(2) with Tex. Pen. Code Ann. § 22.05(a); see Miller v. State, 86 S.W.3d 663, 665-66 (Tex.App.-Amarillo 2002, pet. ref'd). Aggravated assault requires proof of a threat of imminent bodily injury while using or exhibiting a deadly weapon, but deadly conduct requires proof of a danger of serious bodily injury. "The danger of serious bodily injury is established when a deadly weapon is used in the commission of the offense." Bell v. State, 693 S.W.2d 434, 438-39 (Tex.Crim.App. 1985) [emphasis in orig.]; see also Miller, 86 S.W.3d at 666. However, proving aggravated assault as alleged in the indictment does not require proof that appellant used a deadly weapon, rather proof that appellant exhibited a deadly weapon is sufficient. See Miller, 86 S.W.3d at 666-67. Further, unlike deadly conduct, aggravated assault does not require proof of the danger of serious bodily injury, ( i.e., a substantial risk of death, death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ), it requires proof only of the threat of bodily injury, ( i.e., physical pain, illness, or any impairment of physical condition). Compare Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon Supp. 2004-05) with Tex. Pen. Code Ann. § 1.07(a)(46). We conclude the first part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is not satisfied because, under the circumstances of this case, the statutory elements of deadly conduct would not necessarily be established by proof of the same or less than all the facts required to establish the commission of aggravated assault of a public servant as charged. See Irving, 161 S.W.3d at 505; Rousseau, 855 S.W.2d at 672; Miller, 86 S.W.3d at 667 (deadly conduct is not lesser included offense of aggravated assault where indictment alleged defendant committed offense by using or exhibiting a deadly weapon); cf. Bell v. State, 693 S.W.2d 434 (deadly conduct is lesser included offense of aggravated assault where indictment only alleged defendant used a deadly weapon). We decide appellant's second issue on appeal against him.

2. Resisting Arrest as a Lesser Included Offense

A person commits the offense of resisting arrest if he intentionally prevents or obstructs a person he knows is a peace officer from arresting him by using force against the peace officer or another. See Tex. Penal Code § 38.03(a) (Vernon 2003 Supp. 2004-05). The offense of resisting arrest is elevated to a felony if the defendant uses a deadly weapon to resist arrest. Tex. Penal Code 38.03(d). A comparison of the aggravated assault of a public servant and resisting arrest statutes indicates that the required mental state and force used by the defendant and the purpose of the public servant's actions are incongruent. Compare Tex. Pen. Code Ann. § 22.01(a)(2), (b)(1) and Tex. Penal Code § 22.02(a)(2) with Tex. Pen. Code Ann. § 38.03(a), (d). Proving the offense alleged in the indictment does not require proof of facts that are the same or less than those required for proving the offense of resisting arrest. Aggravated assault includes a knowing mental state, while resisting arrest proscribes only intentional conduct. See Gilmore v. State, 44 S.W.3d 92, 96 (Tex.App.-Beaumont 2001, pet. ref'd). Also, aggravated assault requires proof that a public servant was only threatened with imminent bodily injury; resisting arrest requires proof that a defendant used force against a peace officer ( i.e., prevented or obstructed his arrest). Campbell v. State, 128 S.W.3d 662, 673 (Tex.App.-Waco 2003, no pet.) (Gray, J., dissenting). Further, assault requires proof that the public servant was lawfully discharging an official duty, which may or may not involve an arrest; resisting arrest requires proof that the peace officer was in the process of affecting an arrest. See Gilmore, 44 S.W.3d at 96. We conclude the first part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is not satisfied because, under the circumstances of this case, the statutory elements of resisting arrest would not necessarily be established by proof of the same or less than all the facts required to establish the commission of aggravated assault of a public servant as charged. See Irving, 161 S.W.3d at 505; Rousseau, 855 S.W.2d at 672; Gilmore, 44 S.W.3d at 96; Campbell, 128 S.W.3d at 673 (Gray, J., dissenting); see also Hoitt v. State, 28 S.W.3d 162, 166 (Tex.App.-Texarkana 2000), pet. dism'd, 65 S.W.3d 59 (Tex.Crim.App. 2001) (per curiam) (for assault of public servant, it is not necessary that officer was conducting lawful arrest when defendant assaulted him to determine that officer was lawfully discharging official duty). But see Campbell, 128 S.W.3d at 670-71 (resisting arrest is lesser included offense of aggravated assault because evidence adduced by State to prove charged offense also proved resisting arrest). We decide appellant's third issue on appeal against him.

3. Class C Misdemeanor Assault as a Lesser Included Offense

Assault is a class C misdemeanor when a person intentionally or knowingly threatens another with imminent bodily injury. See Tex. Pen. Code Ann. § 22.01(a)(2), (c). A comparison of the class C misdemeanor assault and the second-degree felony aggravated assault statutes indicates that assault is elevated to aggravated assault when the offender uses or exhibits a deadly weapon. Compare Tex. Pen. Code Ann. 22.01(a)(2) with Tex. Pen. Code Ann. § 22.02(a)(2). The first part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is satisfied. See Irving, 161 S.W.3d at 505; Rousseau, 855 S.W.2d at 672; Walker v. State, 761 S.W.2d 572, 575 (Tex.App.-San Antonio 1988), pet. dism'd, 811 S.W.2d 131 (Tex.Crim.App. 1991) (per curiam). Because class C misdemeanor assault is included within the proof necessary to establish aggravated assault, if any evidence exists in the record that would permit a rational jury to find appellant did not use or exhibit a deadly weapon, then appellant was entitled to an instruction on class C misdemeanor assault. See Bignall, 887 S.W.2d at 23. It is undisputed that appellant displayed a firearm ( i.e., derringer) during his struggle with Detective Bailey. Further, the only evidence appellant presented at trial was the testimony of Professor of Criminal Justice Edward Hueske that the derringer involved will not fire unless the hammer is cocked back, and it does not have a hair trigger. There was also some evidence that appellant was attempting to put the gun into his own mouth. However, this evidence does not refute or negate the evidence of aggravated assault and establish that assault is a valid rational alternative. If the jury believed appellant used or exhibited the deadly weapon for the purpose of suicide, the evidence would support neither aggravated assault nor a lesser included offense of assault. Further, the evidence presented is not subject to different interpretations. Accordingly, there is no evidence in the record that would permit a rational jury to find that appellant did not use or exhibit a deadly weapon during his assault on Detective Bailey. See Saunders, 840 S.W.2d at 391-92. The second part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is not satisfied. See Rousseau, 855 S.W.2d at 672. We decide appellant's fourth issue on appeal against him.

IV. LIMITING DEFINITIONS IN JURY CHARGE

In his fifth issue on appeal, appellant argues the trial court erred when it did not limit the definitions of knowingly and intentionally in the jury charge. The State responds that the trial court did not err. In the alternative, the State responds, if it was error, appellant's complaint is barred by the principle of estoppel because he invited the error. We agree with the State. The record shows appellant requested the trial court to include the entire definitions of knowingly and intentionally in the jury charge and the trial court granted his request. Further, the trial court noted there was no objection to the inclusion of the entire definitions of knowingly and intentionally in the jury charge. We conclude appellant is estopped from complaining about the inclusion of the entire definitions of knowingly and intentionally in the jury charge under the invited error doctrine. See Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999). Because the invited error doctrine applies, we will not consider the merits of appellant's fifth issue on appeal. We decide appellant's fifth issue on appeal against him.

V. MOTION TO SUPPRESS

In his sixth and seventh issues on appeal, appellant argues the trial court erred when it denied his motion to suppress. He argues his rights under the Fifth and Sixth Amendments⁷ to the United States Constitution and article 1, §§ 10, 13, and 19 of the Texas Constitution⁸ were violated. Specifically, he argues that, after he requested an attorney, the police continued to question him to learn his name, which led them to an outstanding federal warrant and his prior conviction. The State responds that appellant's statement was not admitted into evidence at trial, the fruits of his statement were admissible, he was not subjected to an interrogation, and he initiated further contact with the authorities. Once again, we agree with the State's position.

A. Standard of Review

A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). If a trial court's decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 855-56.

B. Applicable Law 1. Privilege Against Self Incrimination

The Self-Incrimination Clause of the Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself."⁹ U.S. Const. amend. V; see also Pennsylvania v. Muniz, 496 U.S. 582, 588-89 (1990). The privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom, but also from informal compulsion exerted by law enforcement officers during in-custody questioning. Muniz, 496 U.S. at 589; Miranda v. Arizona, 384 U.S. 436, 461 (1966). "At its core, the privilege reflects our fierce `unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury, or contempt.'" Muniz, 496 U.S. at 596 (quoting Doe v. United States, 487 U.S. 201, 212 (1988)). To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. Hiibel v. State, 542 U.S. 177, 124 S.Ct. 2451, 2460 (2004). To be testimonial, an accused's communication must, explicitly or implicitly, relate to a factual assertion or disclose information. Id. at 2460; see also Muniz, 496 U.S. at 589; Doe, 487 U.S. at 210. To be incriminating under the Fifth Amendment privilege, the disclosure must be one the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. See Hiibel, 124 S.Ct. at 2460 (citing Kastigar v. United States, 406 U.S. 441, 445 (1932)). The Fifth Amendment is not violated by an accused furnishing his name absent a reasonable belief that the disclosure would tend to incriminate him. Id. at 2461. However, the United States Supreme Court left open the issue of whether the Fifth Amendment is violated when an accused's furnishing of his name is incriminating, stating:

Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow.

Id. In every criminal case, it is known and must be known who has been arrested and who is being tried. Id. Stating one's name may qualify as an assertion of fact relating to identity. Id. One's identity is, by definition, unique. Id. Yet it is, in another sense, a universal characteristic. Id. A name identifies, but does not by itself implicate anyone in criminal conduct. See California v. Byers, 402 U.S. 424, 434 (1971). Although identity, when made known, may lead to an inquiry that in turn leads to an arrest and charge, those developments depend on different factors and independent evidence. Id. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. Hiibel, 124 S.Ct. at 2461. Even witnesses who plan to invoke the Fifth Amendment privilege answer their names when they are called to the stand. Id.

2. Right to Counsel

The United States Supreme Court has held that under the Fifth Amendment privilege against self-incrimination, "a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and the police must explain this right to him before questioning begins." Davis, 512 U.S. at 457 (citing Miranda, 384 U.S. at 469-73); see McNeill v. Wisconsin, 501 U.S. 171, 176 (1991). The purpose of this guarantee is to protect the suspect's desire to deal with the police only through counsel. See McNeill, 501 U.S. at 178. Once a suspect requests counsel, the police must cease their interrogation until an attorney has been provided or the suspect himself reinitiates conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see also Davis, 512 U.S. at 458. Statements obtained in violation of Miranda's requirements may not be used as evidence in the prosecution's case-in-chief. Miranda, 384 U.S. 436. A defendant's identity is never itself suppressible. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). An enhancement allegation in an indictment is not, in itself, suppressible evidence. See United States v. Ross, 58 F.3d 154, 160 n. 10 (5^th Cir. 1995). Further, questions falling under the "routine booking questions" exemption are admissible and fall outside the protections of Miranda because they are to secure biographical data necessary to complete booking or pretrial services. Muniz, 496 U.S. at 601. Questions falling within the "routine booking questions" exemption are as follows: name, address, height, weight, eye color, date of birth, and current age. Id.

C. Application of the Law to the Facts

The trial court held a pretrial hearing on the issue of whether appellant's federal and state constitutional rights were violated when he was asked his name.¹⁰ At the hearing, Curtis testified appellant's fingerprints were not readable and the arresting officers believed appellant was lying about his name. She determined that she would not be able to obtain a readable set of fingerprints and appellant could not give her the name of someone who could verify his identity. Also, she stated appellant asked for an attorney, and she told him it was his right to speak to an attorney, but she needed to know appellant's true name so she could complete the book-in process, and appellant could not use the telephone because he could not be booked-in. After the pretrial hearing, the trial court denied appellant's motion to suppress and made the following findings of fact:

(1) [Appellant] was arrested by the Irving Police Department for the offense of Aggravated Assault on a Public Servant;

(2) [I]mmediately upon his arrest, [appellant] was advised of his rights and given certain warnings that comported in all respects with the Constitution and law of the United States of America and of the State of Texas;

(3) [A]fter being so duly warned, [appellant] made an oral statement identifying himself as Ulrich Edward Schreyer;

(4) [Appellant], at the time of the making thereof, understood the rights of which he had been advised, and further that [appellant] invoked his right to terminate interrogation; and

(5) [Appellant] initiated further conversation with Stacy Curtis, an employee of the Irving City Jail and voluntarily communicated to her his correct name of Ulrich Edward Schreyer.

The trial court concluded that appellant's oral statement was admissible and denied his motion to suppress.

The United States Supreme Court's decision in Hiibel left open the question of whether the Fifth Amendment is violated when an accused's furnishing of his name is incriminating. We have found one case since Hiibel considering that issue. See Ohio v. Brown, 2004-Ohio-4058U, 2004 WL 1730132 (Ohio Ct.App. July 30, 2004)¹¹ (the suspect gave the police a false name, a law enforcement officer continued to question the suspect to determine his true identity to book him in, and the suspect's true identity led the police to learn of an outstanding warrant for the suspect). In Brown, a sheriff's deputy stopped a vehicle because one of the headlights was not working. Brown was seated in the front passenger seat of the car. Brown, 2004-Ohio-4058U, at ¶ 2, 2004 WL 1730132, at *1. The deputy asked each of the occupants for their identification and observed an open beer can in the back seat of the car. Id. The identification provided by Brown came back on the deputy's computer as "nothing in file" or it was for a different individual. Id. The passengers in the vehicle were separated and while in the deputy's vehicle, Brown again provided identifying information. Id. 2004-Ohio-4058U, at ¶ 3, 2004 WL 1730132, at *1. This time the information revealed there was a juvenile warrant for Brown. Id. On appeal, Brown argued that his statements relating to his identity should have been suppressed because he had not been given his Miranda warnings and the deputy's questions about his identity were for the sole purpose of incriminating him by obtaining information about the outstanding juvenile warrant. Id. 2004-Ohio-4058U, at ¶ 5-7, 2004 WL 1730132, at * 1-2. The Ohio Court of Appeals held that Brown's provision of his identifying information did not incriminate him and the fact that his identifying information led the deputy to learn of the warrant did not render the disclosure incriminating. See id. 2004-Ohio-4058U, at ¶ 27, 2004 WL 1730132, at *7. We are persuaded by the Ohio Court of Appeals' reasoning in Brown. We conclude the trial court did not err when it denied appellant's motion to suppress. The circumstances before us do not present a case where appellant's provision of identifying information incriminated him or furnished a link in the chain of evidence needed to prosecute him. See id. Neither appellant's identity nor the enhancement allegation against him in the indictment is suppressible evidence. See Lopez-Mendoz, 468 U.S. at 1039; Ross, 58 F.3d at 160 n. 10. The furnishing of appellant's name merely made the police aware that he had prior convictions and a federal warrant for his arrest. See Brown, 2004-Ohio-4058U, at ¶ 27, 2004 WL 1730132, at *7. We do not see how the police's knowledge of appellant's name would provide any evidence against him for the underlying offense or for any other crime. See id. Because the identifying information provided by appellant appeared to be false, the police were entitled to try to determine his true identity to book him in. See id. 2004-Ohio-4058U, at ¶ 20, 2004 WL 1730132, at *5. Curtis's continued questioning of appellant after he requested an attorney falls within the "routine booking questions" exception and falls outside of Miranda's protections. See Muniz, 496 U.S. at 601. Appellant's sixth and seventh issues are decided against him.

VI. CONCLUSION

We conclude appellant has not shown that the trial court erred when it denied his motion for mistrial. Also, we conclude appellant has not shown the trial court erred when it failed to charge the jury on the lesser included offenses of deadly conduct, resisting arrest, or misdemeanor assault. Further, appellant is estopped from complaining that the trial court erred when it included the entire definitions of knowingly and intentionally in the jury charge under the doctrine of invited error. Finally, appellant has not shown that the trial court erred when it denied his motion to suppress. We decide appellant's issues against him. The trial court's judgment is affirmed. See Tex.R.App.P. 43.2(a).

DISSENTING OPINION

Dissenting Opinion By Justice BRIDGES.

I respectfully dissent. Because I conclude the jury received other evidence detrimental to appellant after retiring to deliberate, entitling appellant to a new trial under rule of appellate procedure 21.3(f), I would reverse the trial court's judgment and remand for a new trial. Texas Rule of Appellate Procedure 21.3(f) requires that a defendant in a criminal action must be granted a new trial "when, after retiring to deliberate, the jury has received other evidence." Tex.R.App.P. 21.3(f); see Bustamante v. State, 106 S.W.3d 738, 743 (Tex.Crim.App. 2003). The majority concludes the jury did not "receive" other evidence, a narrative report indicating appellant (1) faced attempted capital murder charges, (2) used the alias "Ernie Elfa Weidenfeller," (3) had a United States Marshall's warrant out for his arrest, (4) had stolen a vehicle and taken it across state lines, and (5) had soaked his hands in "some type of solution" that "caused his fingerprints to be bad." In addition, the majority concludes the error in the admission of the evidence, if any, was cured by the trial court's instruction to disregard the evidence. I disagree. The record shows that, after deliberating for about an hour, the jury sent a note to the trial judge. The trial judge called the presiding juror into the courtroom. The presiding juror had sent the narrative report and a note asking if the jury was supposed to have the report. The trial judge stated the jury was not supposed to have the report. In response to the judge's questions, the presiding juror stated he thought the entire jury had read the report, and they were "knowledgeable of it." The jurors had said they did not hear about the matters in the report during trial and wondered whether they were supposed to have the report. The trial judge stated his intention to call the jurors in and instruct them to disregard the report. Appellant's counsel moved for a mistrial, and the assistant district attorney asked the trial judge to grant appellant's motion for mistrial. The trial judge denied appellant's motion and announced the jurors would be individually instructed not to consider the report for any purpose. Appellant's counsel again moved for a mistrial on the grounds that the infringement on the presumption of appellant's innocence caused by the report could not be cured by any instruction. Appellant's counsel stated that appellant had decided not to testify, in part, because his criminal record would therefore become relevant, and the report brought before the jury his criminal record and his aliases. The trial judge again denied appellant's motion for mistrial and called the entire jury back into the courtroom. The trial judge reiterated that the report was given to the jury by mistake and instructed the jury to disregard the report and not to consider it for any purpose. In response to individual questioning, each juror stated that he or she could and would follow the instruction to disregard. The jury acquitted appellant of aggravated assault of a public servant but found him guilty of aggravated assault of Bailey. Following the verdict, the trial judge separately called each juror into the courtroom and inquired whether each juror had been able to follow the instruction to disregard the report. Each juror stated he or she had been able to follow the instruction to disregard, and the contents of the report played no part in appellant's conviction. The majority relies on Bustamante to support the conclusion that the exhibit at issue was not "received" by the jury, and any error associated with the exhibit was cured by the trial court's instruction to disregard. I do not disagree with the majority that our case is similar to Bustamante. I respectfully disagree that the inadmissible statement received in Bustamante is more egregious. In his capital murder case, Bustamante gave two confessions in which he related the events of the crime. A written statement from appellant's brother was mistakenly included with the exhibits in the jury room. Id. at 741. Five jurors said they learned nothing new from the statement; three said they learned appellant had previously "gone shopping" (a term which, according to appellant, meant finding a "wetback" after the bars closed, offering him a ride, taking him to a deserted location, beating him, and stealing his money and jewelry); and four said they learned about an incident at a truck stop, after the charged murder, in which appellant apparently started to break into another vehicle occupied by a sleeping person. Id. at 742. After questioning all the jurors, the trial court brought them into the courtroom as a group and issued an instruction to disregard the statement. Id. The court in Bustamante concluded the statement was not "received" by the jury, and any error associated with the statement was cured by the trial court's instruction to disregard. Id. at 744. In contrast, the record here indicates the jury had the report before them for an hour. The presiding juror thought the entire jury read the report, and they were "knowledgeable of it." Unlike the document in Bustamante, which contained information pertaining to the charged offense and its aftermath, the report mistakenly submitted to the jury in this aggravated assault case referred to extraneous charges, appellant's use of the alias "Ernie Elfa Weidenfeller," a United States Marshall's warrant for his arrest, appellant's theft of a vehicle and taking it across state lines, appellant's use of "some type of solution" to remove his fingerprints, and attempted capital murder. I respectfully dissent because the report placed before the jury a set of extremely prejudicial facts and circumstances and then told the jury not to think about them. The police report at issue was prepared by the State and marked for identification for use before trial. It is clear the jury was aware of the contents of the report when the presiding juror sent a note inquiring whether they were supposed to have the report. When questioned, the presiding juror stated the jury sent the note because, after a discussion, they determined they had not heard anything about the report at trial. When the mistaken inclusion of the report was discovered, the State and the trial court faced the age-old dilemma of how to get the skunk out of the jury box, and the State joined the defense in asking that the court grant a mistrial. See In re S.G., Jr., 935 S.W.2d 919, 925 (Tex.App.-San Antonio 1996, writ dism'd w.o.j.). Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. Bruton v. United States, 391 U.S. 123, 135 (1965). "A defendant is entitled to a fair trial, but not a perfect one." Id. (quoting Lutwak v. United States, 344 U.S. 604, 619 (1953)). However, "[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction." Bruton, 391 U.S. at 129 (citing Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring)). Under these circumstances, I do not agree the report in this case was not "received" by the jury or that the trial judge's instruction to disregard the report cured any error. Based on the record in this case and the nature of the information contained in the report, I would conclude the report's prejudicial effect could not be cured by the trial judge's instruction to disregard. Garza v. State, 630 S.W.2d 272, 275-76 (Tex.Crim.App. 1982) (op. on reh'g); In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); Carroll v. State, 990 S.W.2d 761, 762-63 (Tex.App.-Austin 1999, no pet.); Woodall v. State, 77 S.W.3d 388, 403 (Tex.App.-Fort Worth 2002, pet. ref'd) (Walker, J., dissenting). Further, I would conclude the other evidence received by the jury was detrimental to appellant. See Garza, 630 S.W.2d at 276; Woodall, 77 S.W.3d at 404-05. Under these facts, I would resolve appellant's first issue in his favor. Accordingly, I would reverse the trial court's judgment and remand for a new trial.