Opinion issued June 10, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00361-CR
                          ———————————
                JOSHUA EDWARD WILLIAMS, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 262nd District Court
                          Harris County, Texas
                      Trial Court Case No. 1358724


                        MEMORANDUM OPINION

     Joshua Edward Williams was convicted by a jury of aggravated assault of a

public servant with a deadly weapon.1 The trial court sentenced Williams to 68


1
     TEX. PENAL CODE ANN. §§ 22.02(a)(2), (b)(2)(A) (West 2011) (criminalizing
     using or exhibiting deadly weapon during commission of assault against person
     known to be public servant lawfully discharging an official duty).
years’ confinement. In two issues, Williams contends that the trial court erred by

(1) refusing to submit a lesser-included offense instruction to the jury and (2)

admitting evidence of a prior conviction. We affirm.

                                  Background

      Late one evening, police received an emergency phone call reporting that

three men wearing hooded sweatshirts were attempting to burglarize a home in

north Houston. According to the emergency phone call, one man wore a mask and

another carried a gun. Houston Police Officers M. Enriquez and A. Newman

responded to the call, arriving at the scene in a marked patrol car. Enriquez and

Newman testified that as they neared the house, they saw a black BMW drive away

from the house “at a high rate of speed.” Enriquez and Newman chased the BMW.

The BMW driver eventually turned off the car’s lights and slowed to a stop. Two

men jumped out of the driver’s side of the car, and Williams jumped out of the

passenger side of the car. Enriquez ran after the men who escaped from the driver’s

side while Newman chased Williams. The driver of the BMW, who had remained

in the car, drove directly at Newman and hit him before Newman could catch up

with Williams. Enriquez testified that when he heard the collision he returned to

check on Newman. After confirming that Newman did not have any major injuries,

Enriquez ran after Williams. During the chase, Williams turned and began to shoot

at Enriquez. Enriquez returned fire, and one of his shots hit Williams in the leg.



                                        2
Enriquez “saw a gun fly away” from Williams’s body. In total, Williams fired nine

shots and Enriquez fired five shots. Enriquez testified that he feared for his life.

      Once Williams was caught, the police searched him and found a black ski

mask in his pocket. He also had a gunshot wound in his leg. Williams was charged

with aggravated assault of a public servant with a deadly weapon.

      The trial court presented the parties with a draft jury charge during

presentation of the evidence in the guilt phase of trial. When the trial court asked

whether he had any objections, Williams requested that the trial court instruct the

jury on the “lesser included [offense] of deadly conduct relying upon the Isaac

case and the Ford case, both out of the 14th Court of Appeals.” See Isaac v. State,

167 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Ford v. State,

38 S.W.3d 836, 842–45 & n.7 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).

But the trial court did not rule on Williams’s request. At the formal charge

conference, the trial court asked whether either party objected to the proposed jury

charge, which did not include an instruction on a lesser-included offense. In

response, the following exchange occurred between the trial court and Williams’s

attorney.

      Defense Counsel:           We would at this time request the lesser-
                                 included offense of deadly conduct
                                 misdemeanor a third-degree felony level.

      Trial court:               And just so that we’re clear, we did have a
                                 conversation off the record just informally


                                           3
                   discussing whether or not, first, the felony
                   offense of deadly conduct is, in fact, a
                   lesser-included offense of the charged
                   offense of aggravated assault of a public
                   servant. And for, I guess, purposes of the
                   record, I have had an opportunity to review
                   several cases that were submitted by both
                   sides. I believe the Defense submitted two
                   cases earlier Isaac v. State, which is cited at
                   167 S.W.3d 469 and also Ford v. State,
                   which is cited at 38 S.W.3d 836. Is there
                   anything that you want me to discuss on the
                   record, Mr. Bynum, regarding those two
                   cases?

Defense Counsel:   There’s not, Judge.

Trial Court:       Do you, based on your review of those
                   cases, could you, I guess, establish for the
                   Court why you believe felony deadly
                   conduct is a lesser, felony deadly conduct
                   under Section 22.05, I assume it would be
                   (b)(1) is a lesser-included offense of
                   aggravated assault of a public servant?

Defense Counsel:   Judge, our position is going to be pretty, you
                   know, threadbare in the sense that we just
                   believe that the elements line up that there
                   are additional elements and that the
                   differences are not enough to deny the
                   Defendant an opportunity to be assessed at
                   the lower punishment levels is all.

Trial Court:       And just looking at, actually looking at the
                   indictment, it appears that the Defendant has
                   been charged with using and exhibiting a
                   deadly weapon. So it alleges he unlawfully,
                   intentionally and knowingly threatened with
                   imminent bodily injury the complaining
                   witness, while the complaining witness was


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                                 lawfully discharging an official duty by
                                 using and exhibiting a deadly weapon,
                                 namely, a firearm, knowing the Complainant
                                 was a public servant. And what’s the State’s
                                 position?

      In response, the State relied on Schreyer v. State, No. 05–03–01127–CR,

2005 WL 1793193 (Tex. App.—Dallas 2005, pet. ref’d) to support its contention

that the third-degree felony offense of deadly conduct was not a lesser-included

offense of aggravated assault of a public servant as charged. Compare TEX. PENAL

CODE ANN. § 22.05(b)(1), (e) (West 2011) (defining third-degree offense of deadly

conduct), with TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011) (defining

aggravated assault of public servant); see Schreyer, 2005 WL 1793193, at *7–8

(distinguishing aggravated assault from felony deadly conduct and concluding that

“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.”) (citations omitted).

      The trial court ruled that the third-degree felony offense of deadly conduct is

not a lesser-included offense of aggravated assault of a public servant. The trial

court did not, however, rule on whether the misdemeanor offense of deadly

conduct was a lesser-included offense. Neither offense was included in the jury

charge. The jury found Williams guilty of aggravated assault of public servant.




                                          5
      Before any evidence was offered in the punishment phase, Williams

objected to the admissibility of a prior aggravated robbery conviction. But the trial

court did not rule on his objection and instead instructed Williams to object at “an

appropriate time.” Williams agreed to wait to object until the State offered the

objectionable evidence. But when the State offered witness testimony regarding

that offense, Williams did not object. The jury assessed punishment at 68 years’

confinement.

      Williams timely appealed.

                                   Jury Instruction

      In his first issue, Williams contends that the trial court erred by not charging

the jury on the lesser-included misdemeanor offense of deadly conduct. The State

acknowledges that Williams orally requested an instruction regarding the possible

inclusion of the third-degree felony offense of deadly conduct but contends that

Williams did not make a “clear and specific” request for an instruction on

misdemeanor deadly conduct or “present [a] proposed instruction in writing, or

dictate it into the record.” Accordingly, the State contends that Williams waived

his right to raise the issue on appeal.

A.    Standard of review

      The Texas Code of Criminal Procedure states that “in a prosecution for an

offense with lesser included offenses, the jury may find the defendant not guilty of



                                          6
the greater offense, but guilty of any lesser included offense.” TEX. CODE CRIM.

PROC. ANN. art. 37.08 (West 2006). A lesser-included offense is one that

      (1) is established by proof of the same or less than all the facts
          required to establish the commission of the offense charged;

      (2) differs from the offense charged only in the respect that a less
          serious injury or risk of injury to the same person, property, or
          public interest suffices to establish its commission;

      (3) differs from the offense charged only in the respect that a less
          culpable mental state suffices to establish its commission; or

      (4) consists of an attempt to commit the offense charged or an
          otherwise included offense.

Id. art. 37.09 (West 2006).

      A trial court has a duty and responsibility to instruct the jury on “the law

applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)

Lesser-included offenses, however, are not considered law applicable to the case;

they are defensive issues, which “frequently depend upon trial strategy and

tactics.” Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010) (citing

Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007)). A trial court

has a duty to instruct the jury on lesser-included offenses only if a party has made

the proper request. See Tolbert, 306 S.W.3d at 779–80 (noting that trial courts are

“not statutorily required to sua sponte instruct” jury on lesser-included offenses);

cf. Ford, 38 S.W.3d at 840 (stating trial court may sua sponte instruct jury on

lesser-included offenses, but is not statutorily required to do so).

                                           7
      We review a trial court’s decision not to include a requested instruction on a

lesser-included offense for an abuse of discretion. Wesbrook v. State, 29 S.W.3d

103, 122 (Tex. Crim. App. 2000). We must uphold a trial court’s judgment unless

it lies outside of the zone of reasonable disagreement. Casey v. State, 215 S.W.3d

870, 879 (Tex. Crim. App. 2007).

B.    Waiver

      We first address the State’s contention that Williams waived his right to

complain on appeal that the jury was not instructed on the lesser-included offense

of misdemeanor deadly conduct.

      The Texas Code of Criminal Procedure states that defendants may preserve

jury charge error by either (1) objecting to an error in the jury charge and obtaining

a ruling on the objection or (2) requesting a special instruction in the charge either

in writing or on the record. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West

2007); Id. art. 36.15 (West 2006).

      A defendant preserves error under article 36.15 if he has requested special

instructions in the charge and the court denies incorporation of the requested

instruction or modifies the charge without responding to a pending request. See

Frank v. State, 688 S.W.2d 863 (Tex. Crim. App. 1985) (holding presentation of

special requested instruction and trial court’s subsequent denial of requested




                                          8
instruction were sufficient to preserve error under 36.15); Ford, 38 S.W.3d at 841

(same).

      To preserve error under section 36.15, the moving party must state the legal

basis for the objection or request with sufficient specificity to draw the court’s

attention to the complaint the defendant raises on appeal. See TEX. R. APP. P. 33.1

(stating that to preserve record party must show that “complaint was made by a

timely request, objection, or motion . . . with sufficient specificity to make the trial

court aware of the complaint”); TEX. CODE CRIM. PROC. ANN. art. 36.15; see Starks

v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)

(citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990), and Little v.

State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988)). An objection is sufficient if

the record indicates that the trial judge understood the matters about which

appellant complains on appeal. Chapman v. State, 921 S.W.2d 694, 695 (Tex.

Crim. App. 1996) (holding requested charge need not be “in perfect form”);

Carmen v. State, 276 S.W.3d 538, 541 (Tex. App.—Houston [1st Dist.] 2008, pet.

ref’d) (“‘Magic words’ are not required; a complaint will be preserved if the

substance of the complaint is conveyed to the trial judge.” (quoting Bennett v.

State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007))).

      When a statute states more than one way in which an offense may be

committed, “[a]n allegation that an offense has been committed in one way may



                                           9
include a lesser offense, while an allegation that an offense [has been] committed

in another way would not include the lesser offense.” Bell v. State, 693 S.W.2d

434, 436 & n.3 (Tex. Crim. App. 1985) (citing Martinez v. State, 599 S.W.2d 622

(Tex. Crim. App. 1980)); see also Ford, 38 S.W.3d at 845 & n.7 (distinguishing

cases holding that deadly conduct by threat is lesser-included offense of aggravated

assault and concluding that “the offense of deadly conduct could be established by

the same or less proof than that needed to establish aggravated assault by causing

bodily injury.”). Because a greater offense and a lesser offense may be committed

in more than one way, reviewing courts must analyze each case to determine

whether the lesser offense may be proved by the evidence. Bell, 693 S.W.2d at

436.

       Williams argues that he preserved error because he “specifically requested

instructions on the lesser-included charges of misdemeanor and felony” deadly

conduct. 2 Specifically, Williams argues that the trial court should have instructed

the jury on the lesser-included offense of misdemeanor deadly conduct. Williams

does not contend that he presented the trial court with a written proposed special

instruction, or that he dictated a proposed instruction into the record. Accordingly,




2
       Williams concedes that the trial court correctly determined that third-degree felony
       deadly conduct is not a lesser-included offense of aggravated assault of a public
       servant.

                                            10
we confine our analysis to whether Williams preserved error by objecting to the

proposed charge. See TEX. CODE CRIM. PROC. ANN. art. 36.15.

      In raising his objection to the proposed jury instruction, Williams did not

clearly request an instruction regarding the misdemeanor offense of deadly

conduct. The colloquy between the trial court and both parties indicates that the

trial court appeared to understand that Williams had requested only an instruction

on the lesser-included offense of third-degree felony deadly conduct. This is

evidenced by the trial court’s explicit reference to case law and the elements of that

offense. See TEX. PENAL CODE ANN. § 22.05(b)(1), (e) (defining third-degree

felony offense of deadly conduct). Williams did not inform the court that he was

referring to two separate lesser-included offenses—he used the word “offense” in

the singular. The trial court responded by referring three times to only felony

deadly conduct, without ever mentioning misdemeanor conduct or referring to

section 22.05(a). See TEX. PENAL CODE ANN. § 22.05(a) (defining misdemeanor

offense of deadly conduct). Save Williams’s one reference to the word

“misdemeanor,” when requesting an instruction on “deadly conduct misdemeanor

a third-degree felony level” the record does not show that Williams made any

attempt to specifically request an instruction on 22.05(a) misdemeanor deadly

conduct as a lesser-included offense. See TEX. PENAL CODE ANN. § 22.05(a).




                                         11
Lastly, when the trial court asked Williams whether there was “[a]nything further

on the requested instruction from the defense?” Williams twice responded “no.” 3

      We conclude that Williams failed to object to the absence of an instruction

on misdemeanor deadly conduct and, therefore, failed to preserve error on appeal.

See TEX. CODE CRIM. PROC. ANN. art. 36.15; see Vasquez v. State, 919 S.W.2d

433, 435 (Tex. Crim. App. 1996).

      Accordingly, we overrule Williams’s first issue.

                                 Extraneous Offense

      In his second issue, Williams contends that the trial court erred by admitting

evidence of a prior conviction for aggravated robbery “in the absence [of] any

proffer by the State or threshold inquiry by the trial court.” The State responds that

Williams failed to preserve error regarding the adequacy of the State’s proffer and

the trial court’s ruling that the evidence was admissible.




3
      Furthermore, even assuming the evidence would have supported an instruction on
      a lesser-included offense, the trial court did not have a sua sponte duty to instruct
      the jury on that offense if the defendant failed to request an instruction or
      objection to the omission of the instruction. See Delgado v. State, 235 S.W.3d 244,
      249–50 (Tex. Crim. App. 2007) (holding trial court does not have “sua sponte
      duty to instruct the jury on all potential defensive issues, lesser-included offenses,
      or evidentiary issues. These are issues that frequently depend upon trial strategy
      and tactics.”); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding
      that defensive issue is not law applicable to case for purposes of Texas Code of
      Criminal Procedure article 36.14) (citation omitted).

                                            12
A.    Standard of review

      We review a trial court’s evidentiary rulings for an abuse of discretion.

Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,

321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We will

uphold a trial court’s decision unless it falls outside of the “zone of reasonable

disagreement.” Oprean, 201 S.W.3d at 726; Walker, 321 S.W.3d at 22. And we

will uphold a trial court’s evidentiary ruling if it is correct on any theory of law

applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009).

B.    Waiver

      Article 37.07 of the Texas Code of Criminal Procedure establishes the

admissibility of evidence during the punishment phase of trial. See TEX. CODE

CRIM. PROC. ANN. art. 37.07 (West Supp. 2013); Henderson v. State, 29 S.W.3d

616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Subsection 3 of Article

37.07 provides that the State may offer “evidence of an extraneous crime or bad act

that is shown beyond a reasonable doubt by evidence to have been committed by

the defendant or for which he could be held criminally responsible, regardless of

whether he has previously been charged with or finally convicted of the crime or

act.” TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). This evidence is, however,

subject to exclusion under Texas Rule of Evidence 403. Lamb v. State, 186 S.W.3d



                                        13
136, 141–43 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing TEX. R. EVID.

403). Rule 403 states that relevant evidence may be excluded when the probative

value is “substantially outweighed by the danger of unfair prejudice, confusion of

the issues, or misleading the jury . . . .” TEX. R. EVID. 403.

      If a party objects to the admissibility of evidence under Rule 403, the trial

court must balance the probative value of the evidence against its possible

prejudicial effect before ruling on its admissibility. Montgomery v. State, 810

S.W.2d 372, 388–90 (Tex. Crim. App. 1990); Burke v. State, 371 S.W.3d 252,

257–58 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (weighing probative

value against potential prejudice of evidence and upholding admissibility of

extraneous act). To preserve error, the complaining party must state the legal basis

for the objection with sufficient specificity to draw the court’s attention to the

complaint the defendant raises on appeal. See TEX. R. APP. P. 33.1; Starks, 127

S.W.3d at 133 (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990),

and Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988)).

      We first address Williams’s complaint that trial court failed to conduct a

Rule 403 balancing analysis before admitting evidence of Williams’s prior

aggravated robbery conviction. At the beginning of the punishment hearing, before

any testimony was offered, Williams conceded that “the facts of the aggravated

robbery [conviction] were admissible.” But Williams made a motion in limine



                                           14
asking that the State not be permitted to offer any evidence that the complainant in

the aggravated robbery was employed as a police officer. See TEX. R. EVID. 403.

The trial court stated that it would permit the State to elicit testimony that the

complainant was an off-duty police officer at the time of the offense. Williams

responded, arguing that the probative value of the evidence was outweighed by its

potential prejudicial effect and requested that the trial court issue a limiting

instruction to the jury “anytime that it’s mentioned that [the complainant is] a

police officer” that “they may not consider the extraneous offense or bad act of

aggravated assault of a police officer.” The trial court requested that defense

counsel tender the proposed limiting instruction to the court and told Williams that

his objection and requested limiting instruction “require that you ask for it an

appropriate time.” The trial court did not rule on Williams’s Rule 403 objection,

nor did it grant his motion for a limiting instruction. Rather than pursuing a ruling,

Williams agreed that he could “wait until any offense conduct that could construe

that particular extraneous bad act” was offered into evidence.

      Throughout the punishment hearing, Williams did not object to any evidence

offered regarding the aggravated robbery conviction. By failing to object to any of

the evidence offered regarding the previous aggravated robbery conviction,

Williams waived his right to raise the issue on appeal. See TEX. R. APP. P. 33.1.




                                         15
      Williams also contends that the trial court failed to conduct a “threshold

analysis” of the admissibility of evidence of his prior aggravated robbery

conviction. Williams, however, did not object on such grounds during the

punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1)

(requiring State to prove “beyond a reasonable doubt” that defendant committed

offense or act sought to be admitted); see Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002) (“[T]he point of error on appeal must comport with the

objection made at trial.”); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex.

Crim. App. 1995) (“An objection stating one legal theory may not be used to

support a different legal theory on appeal.” (citing Johnson v. State, 803 S.W.2d

272, 292 (Tex. Crim. App. 1990))). Accordingly, Williams waived his right to

raise the issue on appeal.

      Because Williams waived his right to challenge the admissibility of his prior

aggravated robbery conviction, we conclude that the trial court did not abuse its

discretion in admitting that evidence.

      We overrule Williams’s second issue.

                                    Conclusion

      Having overruled both of Williams’s issues, we affirm.




                                         16
                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           17
