             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00438-CR
     ___________________________

  GERALD MONTGOMERY, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 297th District Court
         Tarrant County, Texas
       Trial Court No. 1492285D


Before Sudderth, C.J.; Bassel and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

                                  I. INTRODUCTION

      In three issues, appellant Gerald Montgomery challenges the sufficiency of the

evidence to support his conviction for the offense of sexual assault, the denial of his

motion to suppress evidence, and the inclusion of a charge instruction on the lesser

offense of sexual assault. We will affirm the trial court’s judgment.

                                   II. BACKGROUND

A.    Factual Background

      The complainant in this case, E.F., testified at trial. On March 16, 2017, E.F.

was living in a group home in Fort Worth and would walk twice daily for exercise.

During her morning walk on March 16, 2017, Montgomery, a person unknown to

E.F., called to her and said that he wanted to speak to her. E.F. and Montgomery

discussed drugs, and E.F. agreed to return later if possible.

      E.F. met with Montgomery that same morning, and they eventually smoked

methamphetamine. Montgomery expressed his interest in E.F., and she told him that

she did not want to have sex with him. Montgomery went in and out of the

bathroom several times, and when he last exited the bathroom, he placed E.F. in a

headlock, and put a chemical- or gasoline-laden rag in her mouth and over her face.

E.F. struggled and attempted to pull away while Montgomery said, “Breathe it in.”

E.F. was attempting to not breathe due to her concerns that “this was a do or die kind

of situation” and that Montgomery was wanting her to breathe in so that she would

                                            2
either die or pass out. E.F.’s body went numb. Montgomery laid E.F. down, put a

condom on his penis, pulled down E.F.’s pants, and placed his penis into E.F.’s

vagina. Before he “finished,” Montgomery commented, “This is not working for

me,” and he returned to the bathroom. During this interlude, E.F. began to regain

the feeling in her legs and realized that Montgomery was mixing chemicals again or

“doing something.” E.F. testified that she was worried and realized that he was

“going to come back and finish me off . . . . So either I was supposed to be passed

out and [let] him finish that way[,] or I was supposed to be dead and let him finish

that way.” While Montgomery was distracted in the bathroom, E.F. was able to get

up and escape.

       E.F. approached a neighbor at the corner, told her that she had been sexually

assaulted, and used her phone to call 911. After police arrived, E.F. rode in the police

car and directed police to the house where she had been sexually assaulted. Police

found Montgomery hiding in a bedroom closet inside the house. E.F. testified that

she did not consent to sex with Montgomery and identified Montgomery as the

person who sexually assaulted her.

       A penile swab obtained from Montgomery on March 16, 2017, was tested and

showed a mixture originating from and including the DNA profiles of E.F. and

Montgomery. Gasoline was identified on a blanket that had been submitted for

testing.



                                           3
B.    Procedural Background

      By indictment, the State charged Montgomery with committing the offense of

aggravated sexual assault against E.F. and alleged that during the commission of the

offense, he used or exhibited a deadly weapon, in this case a cloth containing gasoline

or fuel, that in the manner of its use or intended use was capable of causing death or

serious bodily injury. Tex. Penal Code. Ann. § 22.021. During the charge conference,

and over Montgomery’s objection, the trial court granted the State’s request to include

an instruction in its charge on the lesser offense of sexual assault.1 Id. § 22.011;

McGahey v. State, 744 S.W.2d 695, 696 (Tex. App.—Fort Worth 1988, pet. ref’d). The

jury found Montgomery guilty of sexual assault and assessed his punishment at forty

years’ confinement.

                                  III. DISCUSSION

A.    Motion to Suppress Evidence

      For ease of discussion, we first address Montgomery’s second issue in which he

complains that the trial court erred in denying his motion to suppress the penile swab

collected from him. Montgomery specifically contends that his rights under the U.S.

and Texas constitutions and article 18.01 of the Texas Code of Criminal Procedure


      1
        In support of its requested instruction on sexual assault, the State noted that
the testimony had raised a question regarding whether the inhalation of gasoline can
be a voluntary act and contended that an instruction on the lesser offense of sexual
assault, thereby omitting the deadly weapon component required for the offense of
aggravated sexual assault, was proper.


                                          4
were violated because the affidavit supporting the request for a search warrant did not

request authority to obtain a penile swab and only requested buccal swabs. See Tex.

Code Crim. Proc. Ann. art. 18.01 (search warrant). The search warrant directed that

buccal and penile swabs of Montgomery’s DNA be obtained and submitted for

scientific analysis.

       1.      Standard of Review

       The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24

(Tex. Crim. App. 2007).      A defendant seeking to suppress evidence on Fourth

Amendment grounds bears the initial burden to produce some evidence that the

government conducted a warrantless search or seizure that he has standing to contest.

State v. Martinez, 569 S.W.3d 621, 623 (Tex. Crim. App. 2019) (quoting Russell v. State,

717 S.W.2d 7, 9 (Tex. Crim. App. 1986), disavowed in part on other grounds by Handy v.

State, 189 S.W.3d 296, 299 n.2 (Tex. Crim. App. 2006)); Handy, 189 S.W.3d at 298–99;

see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104–05, 100 S. Ct. 2556, 2561 (1980). Once

the defendant does so, the burden shifts to the State to prove either that the search or

seizure was conducted pursuant to a warrant or, if warrantless, was otherwise

reasonable. Martinez, 569 S.W.3d at 623–24 (quoting Russell, 717 S.W.2d at 9); Amador

v. State, 221 S.W.3d 666, 672–73 (Tex. Crim. App. 2007). If the State produces

evidence of a warrant, the burden of proof shifts back to the defendant to show the

warrant’s invalidity. Martinez, 569 S.W.3d at 623 (quoting Russell, 717 S.W.2d at 9–10).

                                           5
       Whether a search is reasonable is a question of law that we review de novo,

measuring reasonableness by examining the totality of the circumstances. Kothe v.

State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004). In the process, we must balance

the public interest and the individual’s right to be free from arbitrary detentions and

intrusions. Id. at 63.

       When reviewing a magistrate’s determination of probable cause to issue a

search warrant under the Fourth Amendment or Texas Code of Criminal Procedure

article 18.01, we apply the deferential standard of review the United States Supreme

Court articulated in Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983);

Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Under that standard,

we uphold the probable-cause determination “so long as the magistrate had a

‘substantial basis for . . . conclud[ing]’ that a search would uncover evidence of

wrongdoing.” Gates, 462 U.S. at 236, 103 S. Ct. at 2331 (quoting Jones v. United States,

362 U.S. 257, 271, 80 S. Ct. 725, 736 (1960), overruled on other grounds by United States v.

Salvucci, 448 U.S. 83, 100 S. Ct. 2547 (1980)); see Swearingen, 143 S.W.3d at 811; see also

State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App. 2011); Flores v. State,

319 S.W.3d 697, 702 (Tex. Crim. App. 2010).

       In assessing the sufficiency of an affidavit for an arrest or a search warrant, the

reviewing court is limited to the affidavit’s four corners. Jones v. State, 833 S.W.2d 118,

123 (Tex. Crim. App. 1992). The reviewing court should interpret the affidavit in a

commonsense and realistic manner, recognizing that the magistrate could draw

                                             6
reasonable inferences. Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006); see

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Davis v. State, 202 S.W.3d

149, 155–58 (Tex. Crim. App. 2006) (discussing the extent to which inferences may be

reasonably inferred from an affidavit).

      A warrant must be sufficiently particular to satisfy the Fourth Amendment. See

Bonds v. State, 403 S.W.3d 867, 874–75 (Tex. Crim. App. 2013).              A warrant is

sufficiently particular if it enables the officer to locate the property and distinguish it

from other places in the community. Id. at 875. The particularity requirement is

related to the probable-cause requirement in that it enables the magistrate to

determine whether probable cause exists for the requested search. Id.

      When the State justifies a search or arrest on the basis of a warrant, it must

produce the warrant and supporting affidavit to the trial court if the defendant

challenges the search or arrest’s validity. Etheridge v. State, 903 S.W.2d 1, 19 (Tex.

Crim. App. 1994); Weems v. State, 167 S.W.3d 350, 356 (Tex. App.—Houston [14th

Dist.] 2005, pet. ref’d); see Handy, 189 S.W.3d at 298 (search warrant). This procedure

allows the trial court to review the documents and determine whether probable cause

exists and whether the accused’s rights have been protected. Etheridge, 903 S.W.2d at

19; Garrett v. State, 791 S.W.2d 137, 140 (Tex. Crim. App. 1990); Weems, 167 S.W.3d at

356; see Handy, 189 S.W.3d at 298–99.




                                            7
      2.     Analysis

      Montgomery contends “the penile swab evidence was illegally obtained”

because the supporting affidavit did not request a penile swab and consequently did

not establish “probable cause for the magistrate to authorize such a search” in

violation of his Fourth Amendment rights. He also asserts that the magistrate failed

“to specifically list items of property that are to be searched” in contravention of

article 18.01’s requirement.    See Tex. Code Crim. Proc. Ann. art. 18.01(d).      We

disagree with these contentions.

      Article 18.01(c) specifies,

      A search warrant may not be issued under Article 18.02(10) unless the
      sworn affidavit required by Subsection (b) sets forth sufficient facts to
      establish probable cause: (1) that a specific offense has been committed,
      (2) that the specifically described property or items that are to be
      searched for or seized constitute evidence of that offense or evidence
      that a particular person committed that offense, and (3) that the property
      or items constituting evidence to be searched for or seized are located at
      or on the particular person, place, or thing to be searched.

Tex. Crim. Proc. Code Ann. art. 18.01(c).

      Fort Worth Police Detective Emelia Howard prepared an affidavit in support

of the requested search warrant.      Howard’s affidavit specified that police had

responded to E.F.’s report that Montgomery, who E.F. had identified by name, had

sexually assaulted her—by force and without her consent—by penetrating her vagina

with his condom-covered penis prior to E.F.’s escape. E.F. and officers proceeded to

the Fort Worth residence that E.F. had identified as the location where the offense


                                            8
had occurred. When officers arrived at the residence, the person who answered the

door advised that “the girl” may not be clothed and stated that a girl had been present

earlier.   After being granted permission to enter the residence, officers found

Montgomery hiding in a bedroom closet. Based on these and other facts recited in

the affidavit, including those related to the force used during the commission of the

offense and the use of an alleged deadly weapon, Howard expressed her belief and

reason to believe “that probable cause exists for the BUCCAL DNA swab [sic] of

Gerald Montgomery for the offense of SEXUAL ASSAULT,” stated that she had

reason to believe and did believe that Montgomery had committed the offense of

sexual assault, and requested that the magistrate order that “Montgomery . . . submit

to the taking of his DNA via BUCCAL swabs” and be transported “to an appropriate

facility to obtain DNA via BUCCAL swabs.”

       Howard’s affidavit sets forth sufficient facts and circumstances to permit the

magistrate to determine the existence of probable cause to believe that the offense of

sexual assault had been committed, that Montgomery’s DNA constituted evidence

that he committed the sexual assault, and that the DNA was located on Montgomery,

the person to be searched. See id. art. 18.01(c). Examining the four corners of the

affidavit, interpreting the affidavit in a commonsense and realistic manner,

recognizing that the magistrate could draw reasonable inferences, and deferring to the

magistrate’s determination of probable cause, we conclude the affidavit satisfied the

requirements of article 18.01(c) and authorized the magistrate to issue the search

                                          9
warrant to permit collection of Montgomery’s DNA for scientific testing by means of

buccal swabs, penile swabs, or both. See Gates, 462 U.S. at 236, 103 S. Ct. at 2331;

Jones, 833 S.W.2d at 123; Davis, 202 S.W.3d at 154; Hedspeth v. State, 249 S.W.3d 732,

736–37 (Tex. App.—Austin 2008, pet. ref’d); see also Ontiveros v. State, 240 S.W.3d 369,

372 (Tex. App.—Austin 2007, pet. ref’d) (concluding that warrantless swabbing of

appellant’s penis to obtain DNA evidence that was at risk of destruction was, under

the circumstances, a reasonable search under the Fourth Amendment); Cantu v. State,

No. 05-07-01625-CR, 2009 WL 1479412, at *2 (Tex. App.—Dallas 2009, no pet.) (not

designated for publication) (concluding that affidavit requesting only collection of hair

samples authorized “magistrate’s issuance of search warrant for collection of buccal

swabs” and that trial court did not err in denying motion to suppress the buccal

swabs).

      Montgomery also claims that the trial court’s denial of his motion to suppress

the penile-swab evidence violated article 18.01’s mandate restricting the issuance of a

search warrant to items enumerated under that provision. See Tex. Code. Crim. Proc.

Ann. art. 18.01(d). Article 18.01(d) provides in part, “Only the specifically described

property or items set forth in a search warrant issued under Subdivision (10) of Article

18.02 of this code or property, items or contraband enumerated in Subdivisions (1)

through (9) or in Subdivision (12) of Article 18.02 of this code may be seized.” Tex.

Crim. Proc. Code Ann. art. 18.01(d). Article 18.02(a)(10), the only relevant subsection

for the purpose of considering Montgomery’s complaint, specifies in part that a

                                           10
search warrant may be issued to search for and seize property or items constituting

evidence of an offense or constituting evidence tending to show that a particular

person committed an offense.        Tex. Crim. Proc. Code Ann. art. 18.02(a)(10).

Montgomery asserts that under these provisions, the failure to specify penal swabs as

an item of property to be searched rendered them not subject to seizure. However,

the item of evidence to be seized was Montgomery’s DNA, and that evidence was

specified in conformity with Articles 18.01(d) and 18.02(a)(10). We conclude that the

search warrant was sufficiently particular to satisfy the Fourth Amendment and

Articles 18.01 and 18.02. See Tex. Code Crim. Proc. Ann. art. 18.01–02; see Bonds,

403 S.W.3d at 874–75. Because the trial court did not err in denying Montgomery’s

motion to suppress the penile swab containing DNA evidence, we overrule his

second issue.

B.    Sufficiency of the Evidence

      We next address Montgomery’s first issue in which he asserts that the evidence

is insufficient to support his conviction for sexual assault because E.F. was intoxicated

and suffered from mental and physical disorders affecting her memory and

perception, thereby rendering her testimony “completely incredible and objectively

unreliable,” and because there was no physical evidence demonstrating that “[E.F.’s]

sexual organ was penetrated without her consent.”




                                           11
      1.     Standard of Review

      Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.

      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

                                            12
any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

       To determine whether the State has met its Jackson burden to prove a

defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as

defined by the hypothetically correct jury charge to the evidence adduced at trial. See

Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Crabtree v. State, 389

S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of the crime are

determined by state law.”). Such a charge is one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

proof or restrict the State’s theories of liability, and adequately describes the particular

offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as

authorized by the indictment” means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging instrument.

See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the

State pleads a specific element of a penal offense that has statutory alternatives for

that element, the sufficiency of the evidence will be measured by the element that was

actually pleaded, and not any alternative statutory elements.”).

       The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins,

493 S.W.3d at 599. We must scrutinize circumstantial evidence of intent as we do

other elements of an offense. Laster v. State, 275 S.W.3d 512, 519–20 (Tex. Crim.

                                            13
App. 2009). But when a record supports conflicting inferences, we “must presume—

even if it does not affirmatively appear in the record—that the trier of fact resolved

any such conflict in favor of the prosecution, and must defer to that resolution.”

Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

       2.     Applicable Law and Analysis

       A person commits the offense of sexual assault if he intentionally or knowingly

causes the penetration of the anus or sexual organ of another person by any means,

without that person’s consent.2 Tex. Penal Code Ann. § 22.011(a)(1)(A). A sexual

assault is without consent if the actor compels the other person to submit or

participate by the use of physical force, violence or coercion. Tex. Penal Code Ann.

§ 22.011(b)(1).

       A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result. Id. § 6.03(a). A person acts knowingly, or

with knowledge, with respect to the nature of his conduct or to circumstances

surrounding his conduct when he is aware of the nature of his conduct or that the

circumstances exist. Id. § 6.03(b). A person acts knowingly, or with knowledge, with

respect to a result of his conduct when he is aware that his conduct is reasonably

certain to cause the result. Id.

       Because they are not relevant to our analysis in this case, we have omitted the
       2

other means by which the offense of sexual assault may be committed.


                                          14
             a.     Witness Credibility

      Montgomery contends at length that the evidence is legally insufficient to

support his conviction because E.F.’s “testimony was completely incredible and

objectively unreliable.”3   Montgomery provides no authority in support of this

contention. Instead, he recites at length the many reasons why E.F.’s testimony

should not be believed and points to evidence regarding drug use, injury, and medical

and mental health conditions.

      As we have noted, the weighing of evidence and the evaluation of witness

credibility is the function of the factfinder. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.

Crim. App. 2014). As factfinder, the jury is entitled to judge the credibility of

witnesses, and can choose to believe all, some, or none of the testimony presented by

the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see Martines

v. State, 371 S.W.3d 232, 242 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(recognizing that factfinder is permitted to disbelieve a witness’s recantation and

believe her original statement). In convicting Montgomery, the jury determined E.F.

to be a credible witness and believed her testimony or resolved any conflicts in the

testimony.   When viewed in the light most favorable to the verdict, the jury’s




      3
       The trial court held a competency hearing, found E.F. competent to testify
and, having determined that no evidence of insanity had been presented, denied
Montgomery’s suggestion that E.F. had been insane at the time of the alleged event.


                                          15
necessary inferences are reasonable based on the evidence’s cumulative force. Murray,

457 S.W.3d at 448.

              b.     Physical Evidence

       Montgomery also asserts that there was no credible physical evidence that he

sexually assaulted E.F. to support the jury’s guilty verdict.        In support of this

assertion, Montgomery directs us to the testimony of Melissa Cahill, the sexual assault

nurse examiner who examined E.F., and her statement that she did not note any

trauma regarding E.F.’s genitals.        However, Cahill also testified that the societal

concept that injury associated with sexual assault will be found is not entirely true nor

is it the rule, and she explained that it is not uncommon to find no vaginal injury for a

patient who presents as a sexual assault complainant.

       Montgomery asserts that there was no credible evidence that he sexually

assaulted E.F. nor any evidence from which the jury could reasonably infer that he

sexually assaulted E.F. A sexual assault complainant’s uncorroborated testimony is

sufficient to support a conviction for sexual assault if the complainant informed any

person, other than the defendant, within one year after the date on which the offense

is alleged to have occurred. Tex. Code Crim. Proc. Ann. art. 38.07(a). A sexual

assault complainant’s testimony that she did not consent to engaging in sexual

intercourse with the defendant is also sufficient, by itself, to establish a lack of

consent. Wilson v. State, 473 S.W.3d 889, 899 (Tex. App.—Houston [1st Dist.] 2015,

pet. ref’d)

                                              16
       In this case, E.F. notified police that she had been sexually assaulted on the

same date on which the offense occurred. The jury heard E.F.’s testimony that

Montgomery had lured her into a bedroom, placed her in a headlock, held a gasoline-

laden rag over her face that incapacitated her, and forced his penis into E.F.’s vagina

without her consent. This testimony, without more, was sufficient to support the

jury’s finding that Montgomery sexually assaulted E.F.

       Having viewed all the evidence in the light most favorable to the verdict, a

rational factfinder could have found the essential elements of the offense of sexual

assault beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman, 520 S.W.3d at 622. We overrule Montgomery’s first issue.

C.     Lesser-Included Offense Instruction on Sexual Assault

       In his third issue, Montgomery complains that the trial court erred when it

instructed the jury on the lesser offense of sexual assault. In this case, although

Montgomery was charged by indictment for the offense of aggravated sexual assault,

the State—not Montgomery4—requested that the trial court instruct the jury on

sexual assault.


       4
        When a defendant requests that the trial court instruct the jury on a lesser-
included offense, we analyze two steps to determine whether he was entitled to the
instruction: (1) Are the elements of the lesser-included offense included within the
proof necessary to establish the charged offense’s elements? (2) Is there evidence in
the record from which a jury could find the defendant guilty of only the lesser-
included offense? State v. Meru, 414 S.W.3d 159, 161 (Tex. Crim. App. 2013); Hall v.
State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. App. 2007); Rousseau v. State,
855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993). When examining a defendant’s

                                          17
      The trial court is required to give the jury a written charge “setting forth the law

applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14. In Grey v. State, the

court of criminal appeals explained that “the State is entitled to pursue the charged

offense and, therefore, is entitled to receive a response from the jury on whether the

defendant is guilty of the charged offense.” 298 S.W.3d 644, 649–50 (Tex. Crim.

App. 2009). “It is the State . . . that chooses what offense is to be charged.” Id. at

650. The State’s charging choices, then, become part of the law applicable to the case.

In re State ex rel. Weeks, 391 S.W.3d 117, 123 (Tex. Crim. App. 2013).

      With regard to offenses other than the charged offenses, courts have held that

the State’s power to choose what offense to pursue means that the State need not

prove that the defendant was guilty only of a lesser-included offense in order to

obtain submission of the instructions of the lesser-included offense.           See Grey,

298 S.W.3d at 650 (holding that the State is not bound by the second prong of the

Royster-Rousseau test). The State could pursue the charged offense alone, or the State

could also obtain instructions on a lesser-included offense, or the State could abandon

the charged offense altogether in favor of prosecuting the lesser-included offense. Id.

      Because sexual assault is a lesser-included offense of aggravated sexual assault,

the trial court did not err when it granted the State’s request and instructed the jury on

the offense of sexual assault. See McGahey, 744 S.W.2d at 696 (“[S]exual assault is a

entitlement to the lesser-included instruction, the second step is conditional: we reach
it only if the requested lesser offense qualifies as a lesser-included offense. Meru,
414 S.W.3d at 164.

                                           18
lesser included offense of aggravated sexual assault.”). We overrule Montgomery’s

third issue.

                               IV. CONCLUSION

       Having overruled Montgomery’s three issues, we affirm the judgment of the

trial court.

                                                 /s/ Dana Womack

                                                 Dana Womack
                                                 Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 29, 2019




                                       19
