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                                  MEMORANDUM OPINION

                                          No. 04-09-00225-CR

                                       Robert Vernon HUDLEY,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 81st Judicial District Court, Karnes County, Texas
                                 Trial Court No. 08-07-00082-CRK
                                Honorable Ron Carr, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 3, 2010

AFFIRMED

           A jury convicted appellant, Robert Vernon Hudley, of assault on a public servant. In a single

issue on appeal, Hudley contends there was evidence at trial that he was guilty only of the lesser-

included offense of assault, and therefore, the trial court erred by refusing to include his requested

instruction on the lesser-included offense in the jury charge. We affirm the judgment of the trial

court.
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                                           BACKGROUND

       Sergeant James Tanner, a correctional officer employed by the Texas Department of Criminal

Justice (TDCJ) at the Connally Unit, testified that on the morning of January 14, 2008, he was in

uniform and performing his duty of bringing Section 2 inmates off the recreation yard and back into

their cells. He noticed Hudley, a Section 3 inmate, attempt to enter with the Section 2 inmates.

Tanner testified that Hudley was “out of place,” and let Hudley know that he would either send

Hudley back to the recreation yard to wait with the other Section 3 inmates, or write Hudley a

disciplinary report for being out of place. Tanner then asked Hudley for his identification. Hudley

refused to present his identification, which Tanner saw was in his right hand. Tanner held out his

hand as if to say, “give it to me,” and Hudley pushed his hand away and struck Tanner on the right

side of the face. Tanner attempted to place Hudley against the wall. Hudley hit Tanner a few more

times and Tanner struck Hudley three times with a closed fist in an attempt to defend himself.

Correctional Officer Raul Guerra then sprayed both men with tear gas and broke up the fight. Guerra

testified that he witnessed Hudley slap Tanner’s arm away and then punch Tanner in the face. The

only thing Guerra heard was Tanner requesting Hudley’s identification. Further testimony evidenced

that all inmates have identification cards which they are required to carry with them whenever they

are outside their cells. TDCJ staff can demand an inmate’s identification at any time and inmates

can be disciplined for refusing to present their identification cards.

       Several inmates observed the altercation and testified on Hudley’s behalf. The first four

inmates could not hear the words, if any, exchanged between Tanner and Hudley because they were

in their cells at the time the fight occurred. Carry Tucker stated that he witnessed Tanner grab

Hudley and then swing at him as he attempted to pull away. Tucker was sure Tanner swung at


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Hudley first. Robert Jackson testified that he saw Tanner reach for Hudley in an aggressive manner

and swing at him. Hudley then swung back and the two men fought until sprayed by Guerra. Gary

King stated that he witnessed Tanner grab for Hudley; when Hudley pulled back, Tanner swung at

him. Hudley and Tanner fought until Guerra sprayed them. Raul Reyes testified in a manner similar

to the other inmates. Jimmy Green was the only inmate to hear what occurred during the altercation.

He was with Hudley when they attempted to enter with the Section 2 inmates. He stated that Tanner

demanded Hudley’s identification and Hudley refused. At that time, Tanner reached to grab Hudley

and hit Hudley in the face. Green admitted that he and Hudley were out of place.

       After both sides rested and closed, the trial court presented its proposed charge, which

included an instruction on self-defense. Hudley reiterated his objections to the court’s denial of his

request for an instruction on the lesser-included offense of assault and the definition of “lawfully

discharging an official duty.” The court overruled the objections. The jury convicted Hudley of

assault on a public servant. Hudley timely appealed.

                          STANDARD OF REVIEW AND APPLICABLE LAW

       We review the trial court’s decision regarding inclusion of a lesser-included offense in the

jury charge for abuse of discretion. Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d) (citing Jackson v. State, 160 S.W.3d 568, 572 (Tex. Crim. App. 2005). The

Court of Criminal Appeals has articulated the two-prong Aguilar/Rousseau test to determine whether

a defendant is entitled to a lesser-included offense instruction in the jury charge. R. Hall v. State,

158 S.W.3d 470, 473 (Tex. Crim. App. 2005) (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex.

Crim. App. 1985) and Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). This test

requires (1) that the lesser offense must actually be a lesser-included offense of the charged offense,


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as defined by article 37.09 of the Code of Criminal Procedure, and (2) that the record must contain

some evidence that permits a rational jury to find that the defendant is guilty only of the

lesser-included offense. Id.; A. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007).

       Applying the Aguilar/Rousseau test to the offenses of assault on a public servant and

misdemeanor assault, the test requires that “there must be some evidence from which a rational jury

could acquit the defendant of the greater offense while convicting him of the lesser-included

offense.” R. Hall, 158 S.W.3d at 473. The evidence must demonstrate that the lesser-included

offense is a “valid, rational alternative to the charged offense.” A. Hall, 225 S.W.3d at 536. In

determining whether the instruction on the lesser-included offense is appropriate, the reviewing court

“evaluates the evidence in the context of the entire record, but does not consider whether the

evidence is credible, controverted, or in conflict with other evidence.” R. Hall, 158 S.W.3d at 473.

“Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser

charge.” A. Hall, 225 S.W.3d at 536. When a trial court erroneously refuses a properly requested

instruction on a lesser-included offense, such that the jury’s only option is to convict or acquit on

the main charge, a finding of harm is automatic, Robalin v. State, 224 S.W.3d 470, 477 (Tex.

App.—Houston [1st Dist.] 2007, no pet.), because the jury was denied the opportunity to convict the

defendant of the lesser offense. Brock, 295 S.W.3d at 49; see Ray v. State, 106 S.W.3d 299, 303

(Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Saunders v. State, 913 S.W.2d 564, 571 (Tex.

Crim. App. 1995)).




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                                                     DISCUSSION

         The parties agree that assault is a lesser-included offense of assault on a public servant. See

TEX . PENAL CODE ANN . § 22.01(a)(1), (b)(1) (Vernon Supp. 2009).1 Thus, the first prong of the

Aguilar/Rousseau test is met as a matter of law. See R. Hall, 158 S.W.3d at 473. We next determine

whether there was some evidence presented at trial from which a rational jury could find that Hudley

was guilty only of assault, not assault on a public servant. To be entitled to a jury instruction on the

lesser-included offense of misdemeanor assault, the record must contain some “affirmative evidence

. . . that negates one of the four additional elements of assault on a public servant, yet admits the

underlying assault.” Id. at 474. We evaluate the entire record without considering whether “the

evidence is credible, controverted, or in conflict with other evidence.” Id. at 473; see A. Hall, 225

S.W.3d at 536 (stating that anything more than a scintilla may suffice to entitle a defendant to a

lesser charge); see also McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006) (“If . . .

facts are elicited during trial that raise an issue of the lesser-included offense, and the charge is

properly requested, then a charge must be given.”).

         Hudley claims that he presented evidence affirmatively negating the last element of assault

on a public servant—that Sergeant Tanner was “lawfully” discharging an official duty at the time

of the assault. See TEX . PENAL CODE ANN . § 22.01(b)(1). Specifically, Hudley asserts he offered

some evidence that Tanner acted unlawfully by striking Hudley first without provocation, and Tanner



         1
           … A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. T EX .
P EN AL C O D E A N N . § 22.01(a)(1) (Vernon Supp. 2009). Such an offense is a Class A misdemeanor. Id. at § 22.01(b)
(Vernon Supp. 2009). The offense becomes assault on a public servant and is a felony of the third degree if, in addition,
it is committed, as alleged in the indictment in this case, against a person the actor knows is a public servant while the
public servant is lawfully discharging an official duty. Id. at § 22.01(b)(1). The actor is presumed to have known the
person assaulted was a public servant if, as here, the person assaulted was wearing a distinctive uniform or badge
indicating employment as a public servant. Id. at § 22.01(d) (Vernon Supp. 2009).

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therefore acted outside the lawful performance of his official duties. To determine whether a

correctional officer was lawfully discharging his official duties, we look to section 9.53 of the Penal

Code, which provides that a correctional officer is justified in using reasonable force against an

inmate to maintain the officer’s own safety, the safety of others, or the security of the prison as a

whole. TEX . PENAL CODE ANN . § 9.53 (Vernon 2003).2 Accordingly, if a correctional officer’s use

of force falls within these parameters, he is lawfully discharging his official duties, and an inmate

who assaults the officer at this time is guilty of assault on a public servant rather than mere

misdemeanor assault. R. Hall, 158 S.W.3d at 474. To be entitled to a lesser-included instruction

on misdemeanor assault, there must be some evidence in the record, from any source, that would

show that the officer was criminally or tortiously abusing his status as a public servant by using

unjustified force or engaging in official oppression or civil rights violations at the time of the assault.

Id. at 474-75.

         Here, Hudley relies on the testimony of inmates Tucker, Jackson, King, Reyes, and Green,

who all stated that Tanner struck Hudley first without provocation. Only Green heard the words

exchanged between Hudley and Officer Tanner; Green stated that he and Hudley were “out of place,”

Tanner ordered Hudley to present his identification, and Hudley refused before Tanner struck

Hudley. Taking such testimony by the defense witnesses at face value, there is still no evidence that

a command was not given by Officer Tanner and refused by Hudley before Hudley was struck. As

noted, supra, there are instances where a correctional officer is justified in using reasonable force


         2
          … “An officer or employee of a correctional facility is justified in using force against a person in custody when
and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the
correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own
safety or security.” T EX . P EN AL C O D E A N N . § 9.53 (Vernon 2003). The trial court appropriately included a jury
instruction on section 9.53.

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to maintain security as part of the lawful discharge of his official duties. See TEX . PENAL CODE ANN .

§ 9.53; see also R. Hall, 158 S.W.3d at 475-76 (inmate’s refusal to obey legitimate order by officer

justified officer’s pushing of inmate to maintain his own and others’ safety, and therefore officer was

acting within scope of his lawful duties). Here, there is no dispute that the location of the assault was

a prison, and Officer Tanner was in uniform, on duty, and engaged in moving inmates inside from

the recreation yard. Moreover, there is evidence that Hudley was “out of place” and Tanner gave

Hudley a command to present his identification, which Hudley refused to obey, before any physical

contact occurred. On this record, there is no evidence that Sergeant Tanner criminally or tortiously

abused his status as a public servant by using unjustified force at the time of the physical altercation,

and therefore he was lawfully discharging his official duties. Accordingly, there is no evidence that

Hudley was only guilty of the lesser-included offense of assault. Therefore, the second prong of the

Aguilar/Rousseau test was not satisfied, and Hudley was not entitled to a lesser-included offense

instruction. A. Hall, 225 S.W.3d at 535. The judgment of the trial court is affirmed.

                                                         Phylis J. Speedlin, Justice



DO NOT PUBLISH




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