                                   NO. 07-06-0357-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                  NOVEMBER 6, 2007

                          ______________________________


         SECUNDINO ESTRADA A/K/A PINO DINO ESTRADA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                NO. 17,958-A; HONORABLE DAVID GLEASON, JUDGE

                         _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Secundino Estrada a/k/a Pino Dino Estrada

was convicted by a jury of aggravated assault in retaliation with an affirmative finding on

use of a deadly weapon and sentenced to nine years confinement and a $2,500 fine. In

challenging his conviction, Appellant presents two points of error by which he maintains the
trial court abused its discretion (1) by failing to give an instruction to the jury on assault, a

lesser included offense, and (2) by denying the defense a mistrial after the State’s

prosecuting attorney gave improper final closing argument to the jury during the

punishment phase. He maintains the trial court’s action denied him due process and equal

protection of the law. We reverse and remand.


       Upon arriving home from work one afternoon, David Hughes heard a neighbor who

lived a few houses away hollering about a fire. Hughes went to the burning house to assist

and heard his neighbor, Erica Vasquez, accusing Appellant of setting the fire. Erica is

Appellant’s stepsister and mother of his two young children. Based on Erica’s accusations,

Hughes asked Appellant to “hang around a minute” and wait for law enforcement.

According to Hughes, Appellant had a knife and threatened to cut him before fleeing.


       Appellant was indicted for aggravated assault for intentionally and knowingly

threatening Hughes with imminent bodily injury with a knife in retaliation against service by

Hughes as a prospective witness. During the charge conference, defense counsel

objected to the charge and requested an instruction on the lesser included offense of

assault. The objection was overruled, and the request for an instruction was denied.


       By its brief, the State acknowledges that the record contains some evidence raising

the issue of the lesser-included offense of assault and that the requested instruction should

have been submitted to the jury.         See Rousseau v. State, 855 S.W.2d 666, 673

(Tex.Crim.App. 1993). See also Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).

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With commendable candor, the State concedes error in the trial court’s refusal to include

such an instruction and prays that Appellant’s conviction be reversed and the cause

remanded to the trial court for a new trial. Thus, we sustain Appellant’s first point of error.


       Finally, we pretermit consideration of Appellant’s second point of error pertaining to

improper jury argument.1 While we are mindful of this contention, our disposition of

Appellant’s first point of error eliminates the necessity that we consider the second point.2


       Accordingly, the trial court’s judgment in trial court cause number 17,958-A is

reversed and the cause is remanded for a new trial.



                                                   Patrick A. Pirtle
                                                       Justice


Do not publish.




       1
        Appellant’s second point of error was addressed by this Court in Appellant’s appeal
of his arson conviction in a companion case bearing cause number 07-06-0358-CR.
       2
           Tex. R. App. P. 47.1.

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