                                   NO. 12-18-00030-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 JAMES KEMP,                                       §       APPEAL FROM THE 7TH
 APPELLANT

 V.                                                §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §       SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       James Kemp appeals his conviction for continuous violence against the family. In one
issue, Appellant contends that the trial court abused its discretion by not submitting to the jury the
lesser included offense of assault against the family. We affirm as modified.


                                           BACKGROUND
       Appellant was in a dating relationship with Sheydon Johnson. But as the relationship
continued over the next few months, Appellant believed that Johnson was being unfaithful to him.
Johnson denied Appellant’s allegations of unfaithfulness, but Appellant’s concerns remained.
       Appellant contacted Johnson’s workplace on several occasions to check on her. He next
contacted the Tyler Police Department and requested a welfare check of Johnson at her workplace.
An officer with the Tyler Police Department checked on Johnson, confirmed that she was well,
and relayed that information to Appellant. Yet, Appellant still was concerned that Johnson was
being unfaithful. So Appellant met Johnson at her workplace and transported her to a hospital.
Once there, Appellant requested that Johnson undergo a sexual assault examination. Johnson
refused.
       Thereafter, Appellant and Johnson drove to a convenience store to buy oil for Appellant’s
vehicle. As he exited the convenience store, Appellant saw Johnson using her phone and heard
her phone notification, indicating that she had received a text message. Appellant asked to see her
phone, but Johnson declined. Appellant called Johnson a “bitch” and punched her in her forehead.
Appellant later claimed that he slipped as he tried to grab Johnson’s phone, accidentally striking
Johnson’s forehead.
         Approximately one month later, while Appellant and Johnson still were in a dating
relationship, Appellant asked if he could bring food to Johnson’s apartment. Johnson accepted
Appellant’s offer. When he arrived at Johnson’s apartment, Appellant had no food and appeared
to Johnson to be drunk. The two argued, and Appellant wrestled with Johnson and grabbed her.
Johnson called the police, but Appellant grabbed the phone and threw it away from her, while the
two continued to struggle. Eventually, Johnson got away, left her apartment, and used a neighbor’s
phone to call the police. Appellant left the apartment before the police arrived.
         Appellant was arrested for continuous violence against the family.1 Appellant pleaded “not
guilty,” and the matter proceeded to a jury trial. The jury found Appellant “guilty” as charged,
and Appellant elected for the trial court to assess his punishment. At the punishment hearing,
Appellant pleaded “true” to an enhancement allegation that he previously had been convicted of a
felony.2 Ultimately, the trial court sentenced Appellant to imprisonment for twenty years, and this
appeal followed.


                                         LESSER INCLUDED OFFENSE
         In his sole issue, Appellant contends that the trial court erred by failing to include a lesser
included offense instruction on assault against the family. Specifically, Appellant asserts that he
was entitled to the instruction based on evidence that he accidentally punched Johnson’s forehead
because he slipped as he was trying to take her phone.3




         1
             See TEX. PENAL CODE ANN. § 25.11 (West 2011).
         2
             See TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2017) .
         3
           Section 25.11 sets forth that a person commits an offense if, during a period that is twelve months or less
in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1)
against another person or persons whose relationship to or association with the defendant is described by Sections
71.0021(b), 71.003, or 71.005 of the Texas Family Code. See TEX. PENAL CODE ANN. § 25.11(a). The essence of
Appellant’s argument is that the act of punching Johnson in the forehead did not qualify as an assault, thereby negating
the “two or more” element under Section 25.11. See id.


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Standard of Review and Applicable Law
       We review the trial court’s denial of a lesser included offense instruction for an abuse of
discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004). Upon the
defendant’s request, the trial court must include a lesser included offense instruction in the jury
charge when (1) the requested charge is for a lesser included offense of the charged offense and
(2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense.
Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). When determining whether the trial
court properly denied a request for a lesser included offense instruction, we review all of the
evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).
Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a jury
instruction on a lesser included offense. Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App.
2012). “Although this threshold showing is low, ‘it is not enough that the jury may disbelieve
crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly
germane to the lesser included offense for the finder of fact to consider before an instruction on a
lesser included offense is warranted.’” Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011)
(quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). “[T]he standard may
be satisfied if some evidence refutes or negates other evidence establishing the greater offense or
if the evidence presented is subject to different interpretations.” Sweed, 351 S.W.3d at 68. The
trial court shall give a lesser included offense instruction when the evidence establishes “the lesser
included offense as ‘a valid, rational alternative to the charged offense.’” Rice, 333 S.W.3d at 145
(quoting Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)).
The Evidence
       There was no dispute at trial that Appellant punched Johnson while trying to take away her
phone outside the convenience store. Johnson believed that Appellant intended to do so. Appellant
contended that his punching her was accidental. Following the State’s presentation of evidence,
Appellant testified on his own behalf as follows:


                And so she didn’t try to show me who was texting. So I walked up to the door, as soon as
       I was fixing to get in . . . .

                ....

       [I]n the car -- I was moving so fast, I had slipped. I had slipped. As soon as I slipped -- she was
       texting. And she had the phone like this to her head.



                                                       3
                I was fixing to grab the phone, and I slipped. And when I -- soon as I slipped, my fist hit
       her in the forehead. So as soon as my fist hit her in the forehead, I had put her phone back down
       there.

                   I said, “Baby, I’m sorry. You know I didn’t mean to hit you. You know I didn’t mean to
       hit you.”



       Appellant also testified at trial that he did not assault Johnson at her apartment. However,
Appellant did not seek a lesser included offense instruction on this basis. Instead, at the charge
conference, Appellant asserted that his testimony placed in question whether he assaulted Johnson
at the convenience store. Accordingly, he requested a jury instruction setting forth that, if the jury
believed that Appellant did not assault Johnson outside of the convenience store, but rather, only
assaulted Johnson at her apartment, it should find Appellant “not guilty” of continuous violence
against the family. The instruction further provided the jury with the option to find Appellant
“guilty” of assault against the family. The trial court denied Appellant’s requested instruction.
Analysis
       Here, Appellant was charged with continuous violence against the family. See TEX. PENAL
CODE ANN. § 25.11. The State does not dispute that assault against the family is a lesser included
offense of continuous violence against the family, and we agree that it is a lesser included offense.
Compare TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2017) with TEX. PENAL CODE ANN.
§ 25.11; see also Casanova v. State, Cause No. 13-14-00145-CR, 2016 WL 1072620, at *5 (Tex.
App.–Corpus Christi, Mar. 17, 2016, no pet. h.) (mem. op., not designated for publication). Thus,
Appellant satisfied the first requirement to receive a lesser included offense instruction. See Rice,
333 S.W.3d at 144.
       Accordingly, we next consider if there is any evidence in the record that if Appellant is
guilty, he is only guilty of assault against the family. Essentially, Appellant contends that he
presented evidence that one of the acts he allegedly committed against Johnson was accidental
and, thus, did not constitute assault because he lacked the requisite mental culpability. In
conducting our analysis, we are mindful that a person acts recklessly, or is reckless, with respect
to circumstances surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result




                                                         4
will occur. See TEX. PENAL CODE ANN. § 6.03(c) (West 2011).4 The risk must be of such a nature
and degree that disregarding it constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
Id.
         From our review of the entire record, we agree with the State that there is no evidence
therein indicating that if Appellant is guilty, he only is guilty of assault against the family. While
the threshold showing is low, there must be evidence directly germane to the lesser included
offense for the factfinder to consider before a lesser included offense instruction is warranted. See
Sweed, 351 S.W.3d at 68. Although Appellant testified that he accidentally punched Johnson, he
admitted that he was moving quickly toward her and attempting to grab her phone, which Johnson
was holding by her head. He further stated that he slipped and fell toward her, punching her
forehead with a closed fist. Johnson’s forehead swelled as a result of Appellant’s punch. We
conclude that the manner in which Appellant admitted trying to take Johnson’s phone from her
constitutes reckless conduct. See Guzman v. State, 188 S.W.3d 185, 193-94 (Tex. Crim. App.
2006) (defendant not entitled to lesser included instruction when his own testimony established
that he acted recklessly). Thus, even giving credence to Appellant’s testimony that he accidentally
punched Johnson, such an accidental punching still amounts to an assault against the family. See
TEX. PENAL CODE ANN. §§ 6.03 (c); 22.01(a)(1).
         We have reviewed the entire record and conclude that Appellant was not entitled to an
instruction on the lesser included offense of assault against the family. See Hall, 225 S.W.3d at
536. Thus, we hold that the trial court did not abuse its discretion in refusing Appellant’s request
for such a jury instruction. See Threadgill, 146 S.W.3d at 666; see also Casanova, 2016 WL
1072620 at *6. Appellant’s sole issue is overruled.


                             MODIFICATION OF TRIAL COURT’S JUDGMENT
         From our review of the record, we note that there is an error in the trial court’s judgment,
wherein the degree of offense is denoted as a second degree felony. However, Appellant was


         4
           The State can prove assault against the family by showing that Appellant acted intentionally, knowingly, or
recklessly. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2017). While Johnson contended that Appellant
intended to punch her, and while the record contains strong evidence that Appellant did so intend, for purposes of this
analysis, we take as true Appellant’s assertion that he punched Johnson accidentally. See Hall, 225 S.W.3d at 536.
Therefore, we focus on whether the evidence, as recounted by Appellant, constitutes reckless conduct.


                                                          5
indicted on a third degree felony, continuous violence against the family, the punishment for which
was enhanced to that of a second degree felony. See TEX. PENAL CODE ANN. §§ 12.42(a), 25.11(e).
         We have the authority to modify the judgment to make the record speak the truth when we
have the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Ingram v. State,
261 S.W.3d 749, 754 (Tex. App.–Tyler 2008, no pet.); Davis v. State, 323 S.W.3d 190, 198 (Tex.
App.–Dallas 2008, pet. ref’d). In this case, we have the necessary data and information to modify
the judgment to reflect that the degree of offense was a third degree felony.


                                                  CONCLUSION
         Because the degree of offense charged against Appellant was a third degree felony, we
modify the trial court’s judgment to delete the notation under the “Degree of Offense” heading of
“Second Degree Felony” and insert “Third Degree Felony” in its place. Having overruled
Appellant’s sole issue, we affirm the trial court’s judgment as modified.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered October 3, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          6
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         OCTOBER 3, 2018


                                        NO. 12-18-00030-CR


                                        JAMES KEMP,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 7th District Court
                        of Smith County, Texas (Tr.Ct.No. 007-1098-17)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, as modified, affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to delete the notation under the “Degree of Offense” heading of
“Second Degree Felony” and insert “Third Degree Felony” in its place; and as modified, the trial
court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
