      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00739-CR



                                      Calvin Hights, Appellant

                                                   v.

                                    The State of Texas, Appellee



   FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
        NO. 2007-244, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 A jury found appellant Calvin Hights guilty of two counts of aggravated assault with

a deadly weapon and assessed punishment for each count at seventeen years’ imprisonment. In a

single ground of review, appellant contends that the trial court erred by refusing to instruct the

jury on simple assault as a lesser included offense. We will overrule this contention and affirm

the judgments.

                 The first complainant, Selena Hendricks, testified that she went to appellant’s

residence, where she had been living, to retrieve her belongings. Before she could leave, appellant

seized her outside the house, and they began to struggle. Hendricks testified that during this

altercation, appellant grabbed her from behind and produced a knife. She testified that appellant held

the knife in front of her, with the blade pointed at her as if he were going to stab her. Hendricks

testified that she “felt like I was about to die or get stabbed, at least. I was scared for my life.”
                 The second complainant, Israel Zapien, testified that he happened upon the scene and

saw appellant “try[ing] to kill” Hendricks with the knife. Zapien struck appellant’s face with his fist,

which caused appellant to release Hendricks. Zapien testified that appellant then swung at him with

the knife, and he had to jump away to avoid being cut.

                 The State’s other witnesses were police officers involved in the investigation of this

incident. There were no defense witnesses.

                 The two counts of the indictment alleged that appellant threatened Hendricks and

Zapien with imminent bodily injury, and that he used a deadly weapon, the knife, while doing so.

See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (West Supp. 2008). The court’s charge

authorized appellant’s conviction for aggravated assault in language tracking the indictment. The

court denied appellant’s request for an instruction authorizing his conviction for simple assault

by threat.

                 An instruction on a lesser included offense is required only if: (1) the lesser offense

is included within the proof necessary to establish the greater offense for which he is on trial, and

(2) there is evidence that would permit the jury to rationally find that the defendant is guilty of the

lesser offense but not the greater offense. Hampton v. State, 165 S.W.3d 691, 693-94 (Tex. Crim.

App. 2005); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). There is no question

that the first requirement was satisfied in this case. The question is whether the second requirement

was satisfied.

                 A defendant is not entitled to a lesser included offense instruction simply because

the jury might disbelieve crucial evidence pertaining to the greater offense. Hampton v. State,



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109 S.W.3d 437, 440 (Tex. Crim. App. 2003). Instead, there must be some evidence directly

germane to the lesser included offense before an instruction on that offense is warranted. Id. This

means that appellant was entitled to the lesser included offense instruction only if there was some

evidence that he threatened Hendricks and Zapien with imminent bodily injury, but that he did not

use the knife as a deadly weapon while doing so. Appellant concedes that there was not.

               Appellant argues that the rule requiring some affirmative evidence that the defendant

is guilty only of the lesser included offense violates due process and the right to trial by jury.

Appellant draws our attention to defense counsel’s jury argument, in which he challenged the

complainants’ credibility and vigorously urged that there was no objective evidence that appellant

used a knife during the assault. Appellant argues that the jury, as trier of fact, should have been

allowed to return a verdict reflecting a finding that he assaulted the complainants but did not use a

deadly weapon.

               The court of criminal appeals has explained that the second prong of the predicate for

a lesser included offense instruction—which applies whether the instruction is requested by the

defendant or by the State—preserves the integrity of the jury as finder of fact by ensuring that the

jury is authorized to convict for a lesser included offense only when that offense is a valid, rational

alternative to the charged offense. Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997).

If the jury were instructed on a lesser included offense when the evidence did not raise it, the

instruction would invite the jury to return a compromise or otherwise unwarranted verdict. Id.

Given the evidence in this case, the only rational alternatives for the jury were to find that appellant

threatened the complainants with the knife or that appellant did not threaten them at all.



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                Appellant’s argument is not really with the trial court, but with the court of criminal

appeals’s precedent followed by the trial court. As an intermediate appellate court, we are no more

permitted to disregard the controlling precedent of this State’s highest criminal court than was the

trial court. See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff’d, Colyandro

v. State, 233 S.W.3d 870, 885 (Tex. Crim. App. 2007). If the rule governing a party’s entitlement

to a lesser included offense instruction is to be changed, that decision must be made by the court of

criminal appeals.

                Appellant’s ground of review is overruled, and the judgments of conviction

are affirmed.




                                               __________________________________________

                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Puryear and Pemberton

Affirmed

Filed: December 30, 2008

Do Not Publish




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