                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00035-CR

BRANDON CORNELIUS HARRIS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 08-03647-CRF-85


                         MEMORANDUM OPINION


      Appellant Brandon Harris was indicted for the murder of Obije Lewis at an

apartment complex in Bryan. Harris and a friend of Lewis’s father both lived at the

apartment complex. Harris and Lewis began having problems because Harris believed

that Lewis and his friends had stolen Harris’s car stereo. First, Harris saw Lewis at a

gas station and confronted him about the stereo. The confrontation led to a fistfight,

during which Lewis and his friends broke out two windows on Harris’s car and Harris

rammed Lewis’s car. Harris and his cousin said that Lewis pointed a handgun at Harris
at the apartment complex around a week later.

        About three weeks after the dispute began, Lewis, his father, and some friends

went swimming at the apartment complex. After swimming, Lewis and his cousin

were walking around the apartments and saw Harris on Harris’s apartment balcony.

They started running, with Harris giving chase, and Lewis made it to the door of his

father’s friend’s apartment but could not get in. He began running again but tripped

over a drain pipe and ran into an air conditioning unit. At that point, Harris caught up

with Lewis and stabbed him in the upper left side of his back with an eight-inch kitchen

knife. Lewis died shortly thereafter.

        The two-paragraph indictment alleged that Harris:           (1) intentionally or

knowingly caused Lewis’s death by stabbing him with a knife (TEX. PENAL CODE ANN. §

19.02(b)(1) (West 2011)); and (2) with intent to cause serious bodily injury to Lewis,

committed an act clearly dangerous to human life that caused the death of Lewis by

stabbing him with a knife (Id. § 19.02(b)(2)). The indictment also alleged that Harris

used the knife as deadly weapon. Before trial, the State waived the first paragraph and

went to trial on only the section 19.02(b)(2) murder charge. The State also waived the

deadly-weapon allegation.

        Harris testified that, on the night of the offense, when he first saw Lewis at the

apartment complex, he walked to a payphone to call the police to arrest Lewis for

taking his stereo (Harris had pressed charges against Lewis for burglary of his vehicle).

Harris could not get through to the assigned detective, so he then called 9-1-1 but was

told no one would be sent to arrest Lewis. He called the police department again and

Harris v. State                                                                     Page 2
was also told by them that no one would be sent. Harris then returned to his apartment

and got a knife to protect himself. He came out of his apartment with the knife and saw

Lewis and another man (Lewis’s cousin) standing at the bottom of the stairs.

        As Harris came down the stairs, Lewis and his cousin began to walk off and

Harris followed them. When Lewis and his cousin started running, he chased them and

caught up to Lewis after Lewis could not get in the apartment and had run into the air

conditioning unit. While Harris was still running, he stabbed Lewis one time. Harris

testified that he did not intend to kill Lewis or hurt him “real bad;” that he did not

intend to stab that deep; that he was trying to stab Lewis somewhere in the arm; and

that he intended “just to cut him a little bit” so that Lewis would leave him alone. The

next day, when Harris learned that Lewis had died, he turned himself in to authorities.

        The medical examiner testified that the stab wound was consistent with a

straightforward motion, rather than an over-the-head motion, and that the wound was

seven inches deep. The knife cut through the muscle of Lewis’s upper back, fractured

two ribs, passed through his left lung, and penetrated the left side of his heart. That

type of wound would have required a considerable amount of force, but the knife had

not been buried to the hilt. Even without penetrating the heart, the injury would have

been life-threatening but possibly survivable with medical attention.

        The trial court submitted a jury charge instructing that, if the jury believed

beyond a reasonable doubt that Harris, with intent to cause serious bodily injury to

Lewis, committed an act clearly dangerous to human life that caused the death of Lewis

by stabbing him with a knife, the jury should find Harris guilty of murder. The trial

Harris v. State                                                                   Page 3
court denied Harris’s request to submit two lesser-included offenses to the jury:

aggravated assault and manslaughter.

        The jury found Harris guilty of section 19.02(b)(2) murder and assessed a thirty-

year prison sentence.     On appeal, Harris claims in two issues that the trial court

committed reversible error when it failed to charge the jury on aggravated assault and

manslaughter as lesser-included offenses.

                               Lesser-Included Offenses

        The determination of whether a lesser-included-offense instruction requested by

a defendant must be given requires a two-step analysis. Rousseau v. State, 855 S.W.2d

666, 672-73 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim.

App. 1981) (plurality op. on reh’g).

        The first step asks whether the lesser-included offense is included within the

proof necessary to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587

(Tex. Crim. App. 2010). We must compare the statutory elements and any descriptive

averments in the indictment for the greater offense with the statutory elements of the

lesser offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Ex parte

Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535-36

(Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).

This step is a question of law. Hall, 225 S.W.3d at 535.

        The second step of the lesser-included-offense analysis is to determine if there is

some evidence from which a rational jury could acquit the defendant of the greater

offense while convicting him of the lesser-included offense. Guzman v. State, 188 S.W.3d

Harris v. State                                                                      Page 4
185, 188-89 (Tex. Crim. App. 2006). The evidence must establish the lesser-included

offense as “a valid rational alternative to the charged offense.” Segundo v. State, 270

S.W.3d 79, 90-91 (Tex. Crim. App. 2008). We review all of the evidence presented at

trial. Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005); Rousseau, 855

S.W.2d at 673.

                                     Manslaughter

        We begin with Harris’s second issue, which contends that the trial court erred by

refusing to submit manslaughter as a lesser-included offense.

        Manslaughter is recklessly causing the death of an individual, TEX. PENAL CODE

ANN. § 19.04(a) (West 2011), and a person acts recklessly if he is aware of but

consciously disregards a substantial and unjustifiable risk that the result will occur. Id.

§ 6.03(c). The indictment’s charge of section 19.02(b)(2) murder required proof that

Harris (1) intended to cause serious bodily injury and (2) committed an act clearly

dangerous to human life (3) by stabbing Lewis with a knife. See TEX. PENAL CODE ANN.

§ 19.02(b)(2).

        Harris argues that his testimony shows that he had no intent to kill or to cause

serious bodily injury, but that he was aware of the risk that a knife could be dangerous

and could cause serious bodily injury, and that he acted recklessly by wanting to stab

Lewis in the arm and cut him.

        The State notes, however, that manslaughter cannot be a lesser-included offense

of section 19.02(b)(2) murder under the first step because, while recklessly causing

death is encompassed by intending to cause serious bodily injury, manslaughter does

Harris v. State                                                                      Page 5
not require proof that Harris committed an act clearly dangerous to human life; that is,

manslaughter requires proof of an element not required to prove section 19.02(b)(2)

murder. The State adds that manslaughter requires a culpable mental state of recklessly

causing a death, while section 19.02(b)(2) murder requires only an intent to cause

serious bodily injury with no mental state associated with the death. Thus, the State

concludes, the facts required to prove the lesser offense of manslaughter requires an

element not required to prove section 19.02(b)(2) murder.

        We agree with the State. Under the first step of our analysis, manslaughter is not

a lesser-included offense of section 19.02(b)(2) murder.1 Cavazos v. State, 329 S.W.3d 838,

845-46 (Tex. App.—El Paso 2010, pet. granted) (citing Zavala v. State, No. 05-08-00621-

CR, 2009 WL 2343261, at *1 (Tex. App.—Dallas July 31, 2009, pet. ref’d) (mem. op., not

designated for publication)) (concluding that manslaughter is not a lesser-included

offense of felony murder because manslaughter requires a culpable mental state for

causing death and felony murder does not). We overrule issue two.

                                        Aggravated Assault

        In his first issue, Harris contends that the trial court erred by refusing to submit

aggravated assault as a lesser-included offense of section 19.02(b)(2) murder.

        As noted above, the indictment’s charge of section 19.02(b)(2) murder required



1 In holding that manslaughter and criminally negligent homicide were lesser-included offenses of
murder under the first step, our analysis in Pierce v. State, 234 S.W.3d 265, 269-70 (Tex. App.—Waco 2007,
pet. ref’d), did not distinguish intentional murder (section 19.02(b)(1)) from section 19.02(b)(2) murder,
and, unlike Harris, the defendant in Pierce was charged with and tried on both murder offenses. See id.
Nor did Pierce separately analyze manslaughter as a lesser-included offense of section 19.02(b)(2) murder.
See id. Pierce is thus not authority for the proposition that manslaughter is a lesser-included offense of
section 19.02(b)(2) murder under the first step.

Harris v. State                                                                                    Page 6
proof that Harris (1) intended to cause serious bodily injury and (2) committed an act

clearly dangerous to human life (3) by stabbing Lewis with a knife. Serious bodily

injury means “bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46) (West Supp. 2011).

An act clearly dangerous to human life is one that objectively creates a substantial risk

of death. Depauw v. State, 658 S.W.2d 628, 634 (Tex. App.—Amarillo 1983, pet. ref’d); see

also Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 1983).

        A person commits assault if he intentionally, knowingly, or recklessly causes

bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2011). A

person commits aggravated assault if he commits assault as defined in section 22.01 and

the person “causes serious bodily injury to another.” Id. § 22.02(a)(1); see Ferrell v. State,

55 S.W.3d 586, 598 (Tex. Crim. App. 2001). Aggravated assault—causing serious bodily

injury is a result-oriented offense. Landrian v. State, 268 S.W.3d 532, 533, 537 (Tex. Crim.

App. 2008); Johnson v. State, 271 S.W.3d 756, 761 (Tex. App.—Waco 2008, pet. ref’d).

        We agree with the State’s concession that aggravated assault can be a lesser-

included offense of section 19.02(b)(2) murder under the first step because intent to

cause serious bodily injury encompasses intent to cause bodily injury and causes

serious bodily injury. See Hayward, 158 S.W.3d at 479 (“It is possible, under the right set

of circumstances, for the statutory elements of assault to be included within a murder

because the two offenses could have the same culpable mental state and bodily injury

can be a subset of serious bodily injury.”); see also Dale v. State, 90 S.W.3d 826, 833 (Tex.

Harris v. State                                                                         Page 7
App.—San Antonio 2002, pet. ref’d) (“The State concedes, and we agree, that

aggravated assault is a lesser-included offense of murder.”) (citing Cardenas v. State, 30

S.W.3d 384, 392 (Tex. Crim. App. 2000)).       We thus proceed to the second step to

determine if there is some evidence from which a rational jury could acquit the

defendant of the greater offense while convicting him of the lesser-included offense.

Guzman, 188 S.W.3d at 188-89. That evidence must be evidence that would permit the

jury to rationally find that, if Harris is guilty, he is guilty only of the lesser-included

offense. Id.; see Hall, 225 S.W.3d at 536. The evidence must also establish the lesser-

included offense as a valid and rational alternative to the charged offense. Sweed v.

State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011).

        Harris’s position is that his own testimony supports the submission of

aggravated assault as a lesser-included offense. Harris testified that he did not intend

to kill Lewis; he did not intend to hurt him “real bad;” his intent was to just cut him a

little bit; he was trying to stab him somewhere in the arm; and he did not intend to stab

him as deeply as he did. He also points out that he stabbed him only one time and that

it was a jab, not an over-the-head stab. In sum, Harris argues that his testimony shows

that his intent was to only cause bodily injury and serious bodily injury resulted.

        The State points out other parts of Harris’s testimony to show that Harris’s

statements that he did not intend to kill Lewis or hurt him badly do not refute his

intention to cause serious bodily injury and his commission of an act clearly dangerous

to human life. Lewis admitted that he knew how dangerous a knife is, that a knife

could cause serious bodily injury, that he could be hurt badly if he were stabbed in the

Harris v. State                                                                       Page 8
back with an eight-inch knife, that he knew the knife could kill Lewis, and that he knew

that cutting someone with an eight-inch knife “would hurt somebody real bad.”

        We are persuaded by the State’s argument that Harris’s testimony failed to

establish that if Harris is guilty, he is guilty only of the lesser-included offense and that

the evidence does not establish aggravated assault as a valid, rational alternative to the

murder charge.     See Forest v. State, 989 S.W.2d 365, 367-68 (Tex. Crim. App. 1999)

(“Appellant admitted he meant to shoot the victim “in the butt” but claims that he did

not intend to kill him. By his own testimony, appellant intended to cause serious bodily

injury to the victim. It is not contested that appellant’s act caused the victim's death.

What’s more, firing a gun in the direction of an individual is an act clearly dangerous to

human life.”); Dale, 90 S.W.3d at 833 (“Defendant’s statement that he did not intend to

cause Johnson’s death or serious bodily injury is not evidence that he is guilty only of

aggravated assault in light of other evidence of his intent to cause serious bodily

injury.”); see also Harrell v. State, 659 S.W.2d 825, 827 (Tex. Crim. App. 1983) (“Appellant

admitted shooting the deceased, but testified that he intended to hit the deceased in the

arm when he fired the .22 rifle from 150 yards away. Under [former] § 19.02(a)(2),

appellant intended to cause serious bodily injury to the deceased and committed an act

clearly dangerous to human life that caused the death of the deceased. … Because

appellant’s testimony showed him guilty of murder under [former] § 19.02(a)(2), it did

not constitute evidence that if guilty he was guilty of aggravated assault. Since this

evidence did not raise the issue that he was guilty only of aggravated assault, it was not

error to refuse a charge on that offense.”). We overrule issue one.

Harris v. State                                                                        Page 9
        Having overruled both issues, we affirm the trial court’s judgment.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 27, 2012
Do not publish
[CRPM]




Harris v. State                                                               Page 10
