                                  NO. 12-18-00023-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 DEWEY DEWAYNE BARRETT,                           §       APPEAL FROM THE 7TH
 APPELLANT

 V.                                               §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §       SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Dewey Dewayne Barrett appeals his conviction for assault-family violence by impeding
breath or circulation. In a single issue, Appellant argues the trial court erred by not including a
lesser included offense instruction in the jury charge. We affirm.


                                          BACKGROUND
       On April 8, 2017, a Tyler police officer was flagged down and alerted to an ongoing assault.
Appellant and his wife, Glenda Mackey, had been arguing about whether Appellant was too
intoxicated to drive home. Rodrick Bright, Mackey’s cousin, witnessed Appellant choke Mackey
twice while she wheezed and gasped for breath. Mackey later told law enforcement that Appellant
choked her to the point that she had difficulty breathing. She also told the paramedics that she had
been choked.
       Appellant was subsequently arrested and charged by indictment with assault by impeding
breath or circulation. The punishment range was enhanced to habitual offender status by the
inclusion of two sequential felony convictions. Appellant pleaded “not guilty” and the case
proceeded to a jury trial. At trial, Mackey denied that Appellant choked her. She testified that
Appellant punched her in the face several times and that she accused Appellant of choking her
because she was angry. At the charge conference, Appellant requested the trial court include a
jury instruction for the offense of Class A misdemeanor assault. He argued that misdemeanor
assault is a lesser included offense of assault by impeding breath or circulation. The trial court
denied the instruction.      The jury found Appellant “guilty” and assessed punishment at
imprisonment for sixty years. This appeal followed.


                                           CHARGE ERROR
        In his sole issue, Appellant contends that the trial court erred by not instructing the jury on
a lesser included offense, misdemeanor assault, in the jury charge.
Applicable Law
        A two-step process is used to determine whether an appellant was entitled to an instruction
on a lesser included offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012).
First, we determine whether the offense qualifies as a “lesser included offense” under Article 37.09
of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006);
Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). This is a question of law and does not
depend on the evidence raised at trial. Cavazos, 382 S.W.3d at 382; Hall v. State, 225 S.W.3d
524, 535 (Tex. Crim. App. 2007). Under Texas Code of Criminal Procedure Article 37.09, an
offense is a lesser included offense if (1) it is established by proof of the same or less than all of
the facts required to establish the commission of the offense charged; (2) it 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) it differs from the offense charged only
in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists
of an attempt to commit the offense charged or an otherwise included offense. See TEX. CODE
CRIM. PROC. ANN. art. 37.09.
        If the offense is a lesser included offense under Article 37.09, we move to the second step
and consider whether the evidence shows that if the appellant is guilty, he is guilty only of the
lesser offense. Cavazos, 382 S.W.3d at 383. This second step is a question of fact and is based
on all of the evidence presented at trial, regardless of whether it is weak, impeached, or
contradicted. Id.
        Although the threshold showing for an instruction on a lesser included offense is low—
more than a scintilla of evidence—the evidence must establish that the lesser included offense is a
valid and rational alternative to the charged offense. See Hall, 225 S.W.3d at 536. “[I]t is not



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enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must
be some evidence directly germane to a lesser included offense for the fact finder to consider
before an instruction on a lesser included offense is warranted.” Bignall v. State, 887 S.W.2d 21,
24 (Tex. Crim. App. 1994). Meeting this threshold requires more than mere speculation; it requires
affirmative evidence that both raises the lesser-included offense and rebuts or negates an element
of the greater offense. Cavazos, 382 S.W.3d at 385.
         A person commits the offense of assault-family violence by impeding breath or circulation
if (1) he intentionally, knowingly, or recklessly causes bodily injury to another; (2) the victim was
a member of the defendant’s family; and (3) the offense was committed by intentionally,
knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person
by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. See
Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015); TEX. PENAL CODE ANN. §
22.01(a)(1), (b)(2)(A)-(B) (West Supp. 2017); TEX. FAM. CODE ANN. §§ 7l.003, 71.005 (West
2014). “Family” is defined as individuals related by affinity, i.e., two individuals who are married
to each other. See TEX. FAM. CODE ANN. § 7l.003; TEX. GOV'T CODE ANN. § 573.024(a)(1) (West
2012).
Analysis
         At trial, Appellant’s counsel requested that a lesser included offense instruction for a Class
A misdemeanor assault be included in the jury charge. A person commits misdemeanor assault if
he intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s
spouse. See TEX. PENAL CODE ANN. § 22.01(a)(1).
         In his brief, Appellant argues that he was entitled to a lesser included offense instruction
because his wife’s injuries could have been caused in ways other than by impeding her breath or
circulation. More particularly, he contends that the jury could have believed that Appellant hit his
wife in the face, but did not choke her. Appellant contends that hitting Mackey in the face is a
lesser included offense. However, assault by striking Mackey in the face is not established by
proof of the same or less than all of the facts required to establish assault by “impeding the normal
breathing or circulation of the blood of the person by applying pressure to the person’s throat or
neck or by blocking the person’s nose or mouth.” See TEX. CODE CRIM. PROC. ANN. art. 37.09;
Price, 457 S.W.3d at 442; Perkins v. State, 12-15-00001-CR, 2016 WL 5800262, at *4 (Tex.
App.—Tyler Oct. 5, 2016, pet. ref’d) (mem. op., not designated for publication) (Class A



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misdemeanor assault not a lesser included offense of assault-family violence by impeding breath
or circulation because appellant’s hitting wife with his fist was not established by proof of the
same or less than all of the facts required to establish assault by “impeding the normal breathing
or circulation of the blood of the person by applying pressure to the person’s throat or neck or by
blocking the person’s nose or mouth”). A trial court is not required to instruct a jury on a lesser
included offense where the conduct establishing the lesser offense is not “included” within the
conduct charged. Irving v. State, 176 S.W.3d 842, 846 (Tex. Crim. App. 2005) (holding simple
assault by grabbing victim and falling on top of her not a lesser included offense of aggravated
assault by striking victim with bat as charged in indictment). Thus, a Class A misdemeanor assault
does not qualify as a lesser included offense of assault-family violence by impeding breath or
circulation. See TEX. CODE CRIM. PROC. ANN. art. 37.09; Sweed, 351 S.W.3d at 68; Perkins, 2016
WL 5800262, at *4.
         Consequently, we need not move to the second step of the analysis. The trial court did not
err when it denied Appellant’s request that a lesser included offense instruction for Class A
misdemeanor assault be included in the jury charge. See Perkins, 2016 WL 5800262, at *4. We
overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s single issue, we affirm the trial court’s judgment.

                                                                 GREG NEELEY
                                                                    Justice


Opinion delivered October 10, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 10, 2018


                                         NO. 12-18-00023-CR


                                 DEWEY DEWAYNE BARRETT,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1252-17)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
