Opinion
No. 05-03-00631-CR.
Opinion Filed February 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 049314. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
A jury convicted Clyde Joe Parker Jr. of aggravated assault on a public servant, and the trial court sentenced him to eighteen years in prison. In one point of error, appellant complains the trial court erred in failing to instruct the jury on the lesser-included offense of assault. We affirm. Appellant broke a police officer's hand while the officer was trying to arrest him for outstanding warrants. Appellant was convicted of aggravated assault on the officer with the aggravating factor being "serious bodily injury." On appeal, appellant argues that because the evidence regarding the seriousness of the officer's injury is "subject to different interpretations," he was entitled to an instruction on the lesser offense of assault. If evidence from any source raises the issue of a lesser-included offense, an instruction on that offense must be included in the court's charge. Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). If a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise 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, 24 (Tex.Crim.App. 1994). Evidence may indicate a defendant is guilty of only the lesser offense if: (1) there is evidence which refutes or negates evidence establishing the greater offense or (2) the evidence presented is subject to different interpretations and one of those interpretations must negate or rebut an element of the greater offense. See Saunders, 840 S.W.2d at 391-92. Appellant relies on the second way of raising a lesser offense. The evidence showed that Denison police officer Kevin McGee answered a call for assistance from two officers who were having difficulty subduing appellant. When McGee arrived, appellant was lying on the ground, swinging and kicking at the officers. Appellant then put his arms underneath him, making it difficult for officers to handcuff him. McGee tried to grab appellant's arms, but appellant grabbed McGee's right hand and squeezed it with such force McGee could not break free. McGee said it was "very painful" and demanded more than three times that appellant release him, but appellant refused. McGee used pepper spray on appellant, but appellant squeezed his hand with even more force. Finally, one of the other officers hit appellant with his baton, and appellant let go of McGee's hand McGee said he could not feel his hand at first and said it was completely swollen from mid-knuckles to wrist. At the hospital, McGee learned his hand was broken. Two days later, McGee underwent surgery where a doctor placed titanium screws in the metacarpal to hold it together. McGee missed two months of work, and when he returned, was on light duty for another month. At the time of trial, he was still having problems with his hand and still seeing doctors. His hand is permanently scarred and has a "lump" on the top. This is the only evidence in the record regarding the extent of McGee's injury. Appellant does not set out this evidence or any evidence regarding the seriousness of the injury; he simply makes the bare assertion that "the evidence produced at trial is subject to different interpretations." He does not attempt to offer a different interpretation. We have reviewed this evidence and see no room for interpretation: the only evidence was that McGee's hand was broken, he missed two months of work because of the injury, and he continues to have problems with his hand Additionally, his hand is permanently scarred and disfigured by a "lump." See Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2004) ("`Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."). The trial court did not err in refusing to submit a charge on the lesser-included offense of assault. We overrule the sole point of error. We affirm the trial court's judgment.