Opinion issued June 28, 2012




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                         ————————————
                           NO. 01-11-00376-CR
                         ———————————
                   GILBERTO CARDENAS, Appellant
                                   V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 338th District Court
                         Harris County, Texas
                     Trial Court Case No. 1277185



                     MEMORANDUM OPINION

     Gilberto Cardenas was charged with aggravated assault, a second degree
felony.1 Because there was conflicting evidence as to whether he had a gun,

Cardenas asked the trial court to instruct the jury on the alleged lesser-included

offense of assault committed by bodily injury, a Class A misdemeanor.2

      The trial court denied the request because the elements of an assault

committed by bodily injury are not contained within the elements of the offense of

aggravated assault committed by threat of imminent bodily injury and use or

exhibition of a deadly weapon.          The trial court suggested that a proper

lesser-included offense would be assault, committed by threatening the victim with

imminent bodily injury, a Class C misdemeanor.3         Cardenas, however, never

requested that the jury be instructed on the lesser-included offence of assault

committed by threat of bodily injury.

      Notwithstanding the fact that Cardenas neither describes in his appellate

brief the specific means of commission of assault he requested be submitted at trial

(assault committed by bodily injury), nor mentions that the trial court suggested—

and he declined to request—the lesser-included offense of assault committed by


1
      See TEX. PENAL CODE ANN. §§ 22.01(a)(2), .02(a)(2), (b) (West 2011)
      (committed by intentionally and knowingly threatening the victim with
      imminent bodily injury and by using or exhibiting a deadly weapon).
2
      See TEX. PENAL CODE ANN. § 22.01(a)(1), (b) (West 2011) (assault
      committed by intentionally, knowingly, or recklessly causing victim bodily
      injury).
3
      See TEX. PENAL CODE ANN. § 22.01(a)(2), (c) (West 2011).
threat of imminent bodily injury, Cardenas argues that the trial court erred in

refusing to instruct the jury on the lesser-included offense of assault.4 We affirm.

      Cardenas obliquely suggests in his appellate brief that the trial court had the

affirmative duty to sua sponte submit an assault charge, citing Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1984 & 1985). This use of Almanza was

explicitly rejected by the Court of Criminal Appeals in Tolbert v. State, 306

S.W.3d 776, 781 (Tex. Crim. App. 2010) (trial court had no duty to sua sponte

instruct jury on lesser-included offense).

      We therefore review the lesser offense that Cardenas did preserve at trial—

assault by bodily injury. We begin with the statutory definition:

      An offense is a lesser included offense if:
             (1) it is established by proof of the same or less than all 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.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). Under the first subpart,

which applies to this appeal, the Court of Criminal Appeals has established a

two-step analysis: (1) whether an offense is a lesser-included offense of the alleged

4
      The trial court’s judgment contains a clerical error in the case number, which
      is designated in the judgment as “127718501010.” The correct case number
      is “1277185.”
offense and (2) whether there is some evidence adduced at trial to support an

instruction on the lesser-included offense. Hall v. State, 225 S.W.3d 524, 535

(Tex. Crim. App. 2007).

      As a matter of law, wholly independent of the evidence introduced at trial,

we conduct the first step by comparing the elements of the offense as alleged in the

indictment with the elements of the potential lesser-included offense. Id. at 535–

36. Cardenas’s indictment alleged aggravated assault, committed by intentionally

and knowingly threatening the victim with imminent bodily injury and by using or

exhibiting a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), .02(a)(2),

(b) (West 2011). Cardenas requested inclusion in the charge for submission to the

jury of an alleged lesser-included offense of assault committed by intentionally,

knowingly, or recklessly causing the victim bodily injury. See TEX. PENAL CODE

ANN. § 22.01(a)(1), (b) (West 2011). Here, among the facts required to prove the

lesser offense include is one that is not the same, or less than, that required to

establish the offense charged: causing bodily injury. Cardenas’s requested offense

of assault committed by bodily injury is therefore not a lesser-included offense of

aggravated assault as alleged in the indictment, and we do not reach the second

step of analyzing the evidence adduced at trial.
      We overrule Cardenas’s sole issue. Because there is clerical error in the trial

court’s judgment, we modify the case number from “127718501010” to

“1277185.” As so modified, we affirm the trial court’s judgment. See TEX. R.

APP. P. 43.2(b).




                                             Jim Sharp
                                             Justice

Panel consists of Justices Higley, Sharp, and Huddle.

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