                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                  §
 OSCAR QUINTANILLA,                                               No. 08-07-00220-CR
                                                  §
                   Appellant,                                       Appeal from the
                                                  §
 V.                                                           409th Judicial District Court
                                                  §
 THE STATE OF TEXAS,                                           of El Paso County, Texas
                                                  §
                   Appellee.                                      (TC# 20030D04179)
                                                  §

                                                  §


                                           OPINION

       This case is before the Court on remand, so that we may reconsider our prior opinion in

light of the Texas Court of Criminal Appeals’ decision in Grey v. State, 298 S.W.3d 644

(Tex.Crim.App. 2009).1 Oscar Quintanilla was indicted and tried for the offense of sexual

assault of a child. Following presentation of the evidence, the State requested that the trial court

include an instruction for the lesser-included offense of attempted sexual assault of a child in its

instructions to the jury. Defense counsel’s objection to the lesser-included instruction was

overruled. The jury convicted Appellant of the lesser-included offense. Appellant raised a single

issue on appeal challenging the trial court’s decision to instruct the jury on the lesser-included

offense of attempted sexual assault of a child.



       1
         A full recitation of the facts and evidence presented in the case appears at, Quintanilla v.
State, No. 08-07-00220-CR, 2009 WL 475790, at *1 (Tex.App.--El Paso Feb. 26, 2009, pet.
granted)(not designated for publication).
       In our original opinion, this Court reversed and remanded the case for new trial, holding

that the State was not entitled to the submission of a lesser-included offense because there was no

evidence that Appellant was guilty only of the attempted offense. See Quintanilla v. State, No.

08-07-00220-CR, 2009 WL 475790, at *4 (Tex.App.--El Paso Feb. 26, 2009, pet. granted)(not

designated for publication). The Court of Criminal Appeals granted the State’s petition for

discretionary review, and in a per curiam opinion, vacated this Court’s judgment and remanded

the case so that we could reconsider the issue in light of its opinion in Grey v. State. See

Quintanilla v. State, No. PD-0840-09, 2010 WL 456873, at *1 (Tex.Crim.App. Feb. 10, 2010)

(per curiam)(not designated for publication). In light of the Court’s opinion in Grey, we MUST

affirm the trial court’s judgment of conviction for attempted sexual assault.

       Prior to Grey, in a case such as this one, a trial court’s decision to included a lesser-

included offense instruction in the jury charge at the State’s request, was subject to a two part

inquiry: (1) is the lesser-included offense included within the proof necessary to establish the

offense charged; and (2) is there some evidence in the record that would permit a jury to

rationally determine that if the defendant is guilty, he is guilty only of the lesser offense. Avila v.

State, 954 S.W.2d 830, 842 (Tex.App.--El Paso 1997, pet. ref’d); see also Arevalo v. State, 943

S.W.2d 887, 889-90 (Tex.Crim.App. 1997)(applying the second prong of the Roussea-Aguilar-

Royster test to State’s request for a lesser-included offense instruction), overruled by Grey, 298

S.W.3d at 651.

       Appellant’s argument, both in his original brief to this Court, and in supplemental

briefing on remand, focuses exclusively on the second prong of the pre-Grey analysis. He

contends that there was no evidence upon which the jury could have found him guilty only of the


                                                  -2-
lesser offense. The Court of Criminal Appeals’ decision in Grey abrogated the common law rule

requiring the State to meet the second prong of the Rousseau test. Grey, 298 S.W.3d at 651.

Therefore, under Grey, the State is entitled to have a lesser-included offense instruction included

in the jury charge solely on the basis that proof of the lesser offense is included within the proof

necessary to establish the offense charged. See Grey, 298 S.W.3d at 645. As there is no dispute

between the parties that attempted sexual assault of a child is a lesser-included offense of sexual

assault of a child, the trial court did not err by granting the State’s request to included the lesser-

included offense instruction in the jury charge. Appellant’s sole issue is overruled.

        We affirm the trial court’s judgment.



March 9, 2011
                                                DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




                                                  -3-
