










In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-00-01222-CR
____________

CHIANTI MARCELLA JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 837,864



DISSENTING OPINION
	I dissent.
	Following is the rule regarding entitlement to "lesser-included offense"
language in the jury charge:
If a defendant either presents evidence that he committed no
offense or presents no evidence, and there is no evidence
otherwise showing he is guilty only of a lesser included offense,
then a charge on a lesser included offense is not required.
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994); Caicedo v. State, 981
S.W.2d 817, 819 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd) (emphasis in
originals). 
	In the present case, I agree with the majority that "unauthorized use of a motor
vehicle may be a lesser-included offense of aggravated robbery."  Where we diverge
is with regard to the second prong of the controlling test: whether some evidence
exists in the record that would permit a rational jury to find that if guilty, the
defendant is guilty of only the lesser offense.  See Schweinle v. State, 915 S.W.2d 17,
18 (Tex. Crim. App. 1996).  
	A jury, as the sole trier of fact, is entitled to selectively believe all or part of the
conflicting testimony introduced by either side at trial.  See Bignall, 887 S.W.2d at
24.  Anything more than a scintilla of evidence from any source is sufficient to entitle
a defendant to submission of the issue.  See Schweinle, 915 S.W.2d at 18.
	In the present case, there was evidence that, two days after complainant's car
was stolen, appellant was found driving the complainant's car.  There was evidence
that appellant had nothing to do with the robbery; rather, according to appellant, he
had purchased the car for $500.00 a few days before he was stopped by police.  On
cross-examination of the complainant, appellant's counsel vigorously attacked the
complainant's identification of appellant as the carjacker.
	The issue presented, therefore, is whether the record would permit a rational
jury to find that, if guilty of anything, appellant was guilty only of "unauthorized use
of a motor vehicle."
	The complainant testified that she had not given appellant consent to operate
her car.  Such evidence, by itself, is sufficient to support a finding that appellant knew
he did not have the complainant's effective consent to operate the car.  See McQueen
v. State, 781 S.W.2d 600, 604-05 (Tex. Crim. App. 1989); White v. State, 844 S.W.2d
929, 931-32 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd.).  Further, the jury
could have disbelieved appellant's statement that he purchased the vehicle,
concluding instead that appellant was aware he was driving a stolen vehicle.
	The key to the appropriate analysis is that the jury, as the sole trier of fact, was
entitled to selectively believe all or part of the evidence introduced by either side.  See
Bignall, 887 S.W.2d at 24.  The jury could have reasonably concluded that the
complainant was mistaken in her identification of appellant as the carjacker, and it
could also have reasonably concluded that appellant, even though he did not steal the
car, was aware he was driving a stolen car.  Thus, the evidence was sufficient to
entitle appellant to inclusion in the jury charge of the language covering the lesser-included offense of unauthorized use of a motor vehicle.
	Accordingly, the trial court erred when it overruled appellant's request that the
jury charge include the lesser-included-offense language.  Under the well established
standard set out in Almanza and Arline, such error mandates reversal of the
conviction.  Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). 
	We should reverse and remand the case to the trial court. (1)


							Margaret Garner Mirabal
							Justice


Panel consists of Justices Mirabal, Hedges, and Jennings.
Justice Mirabal dissenting.
Publish.  Tex. R. App. P. 47.
1. Because I would sustain appellant's second point of error, I would not reach
the merits of appellant's first point of error.  My silence as to the majority's
disposition of the first point of error does not indicate my agreement with the
analysis or the result.
