                            COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                   NO. 2-06-454-CR


ERIC EMIL WILLIAMS                                                    APPELLANT

                                            V.

THE STATE OF TEXAS                                                         STATE

                                        ------------

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                           MEMORANDUM OPINION 1

                                        ------------

      A jury convicted Appellant Eric Emil Williams of attempted sexual assault,

found the habitual offender allegations true, and assessed his punishment at

fifty-seven years’ confinement. The trial court sentenced him accordingly. In

two points, Appellant contends that he was denied effective assistance of

counsel at trial and that the trial court erred by denying his request for a lesser



      1
          See T EX. R. A PP. P. 47.4.
included offense instruction. Because we hold that Appellant has not met his

burden of proving ineffective assistance and that the trial court did not err by

refusing to give a lesser included offense instruction on assault bodily injury, we

affirm the trial court’s judgment.

      In his first point, Appellant contends that he received ineffective

assistance at trial because at the guilt phase, his trial counsel referred to

Appellant’s criminal record, elicited testimony about it, and opened the door and

failed to object to the prosecutor’s questioning witnesses about it. This issue

was not presented in a motion for new trial. Accordingly, Appellant’s trial

counsel’s strategy, if any, for allowing that information before the jury cannot

be determined. Based on the applicable standard of review, 2 we hold that

Appellant has not met his burden of proving ineffective assistance of counsel.

We overrule his first point.

      In his second point, Appellant contends that the trial court erred by

denying his requested lesser included offense instruction on assault bodily

injury.   We use a two-step analysis to determine whether an appellant was




      2
       See Strickland v. Washington, 466 U.S. 668, 687-90, 694, 104 S. Ct.
2052, 2064-66, 2068 (1984); Thompson v. State, 9 S.W.3d 808, 812-14
(Tex. Crim. App. 1999).

                                        2
entitled to a lesser included offense instruction. 3 First, the lesser offense must

come within article 37.09 of the code of criminal procedure.4 “An offense is

a lesser included offense if . . . it is established by proof of the same or less

than all the facts required to establish the commission of the offense charged.” 5

This inquiry is a question of law.6 It does not depend on the evidence to be

produced at the trial but is performed by comparing the elements of the offense

as they are alleged in the indictment or information with the elements of the

potential lesser included offense. 7

       The indictment provides that Appellant

       did THEN AND THERE INTENTIONALLY, WITH THE SPECIFIC
       INTENT TO COMMIT THE OFFENSE OF SEXUAL ASSAULT OF [the
       complainant], DO AN ACT, TO-WIT: PINNED [the complainant]
       AGAINST THE WALL WITH HIS ARM, OR PULLED DOWN HIS
       PANTS EXPOSING ANY PART OF HIS GENITALS TO [the
       complainant]; OR ATTEMPTED TO SPREAD THE LEGS OF [the
       complainant], WHICH AMOUNTED TO MORE THAN M ERE


       3
       Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau
v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, 510 U.S.
919 (1993).
     4
     T EX. C ODE C RIM . P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State,
969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
       5
       T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also Hall, 225 S.W.3d at
536.
       6
           Hall, 225 S.W.3d at 535.
       7
           Id. at 525, 535-36.

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      PREPARATION THAT TENDED BUT FAILED TO EFFECT THE
      COMMISSION OF THE OFFENSE INTENDED.

Assault bodily injury requires bodily injury; 8 attempted sexual assault as alleged

in the indictment does not.9 The evidence in the record that Appellant inflicted

bodily injury on the complainant is immaterial to our determination. 1 0

Accordingly, we hold that assault bodily injury is not a lesser included offense

of attempted sexual assault, and the trial court did not err by refusing to give

the requested instruction. We overrule Appellant’s second point.

      Having overruled both of Appellant’s points, we affirm the trial court’s

judgment.




                                            PER CURIAM

PANEL F:       DAUPHINOT, J.; CAYCE, C.J.; and MCCOY, J.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: March 6, 2008




      8
      T EX. P ENAL C ODE A NN. § 22.01(a)(1) (Vernon Supp. 2007).

      9
          See id. § 15.01(a) (Vernon 2003), § 22.011(a)(1), (b) (Vernon Supp.
2007).
      10
           See Hall, 225 S.W.3d at 525, 535-36.

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