Opinion filed August 16, 2018




                                      In The

        Eleventh Court of Appeals
                                   __________

                                No. 11-16-00244-CR
                                    __________

             DWAYNE UTERRAL HARDEMAN, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 35th District Court
                             Brown County, Texas
                        Trial Court Cause No. CR23428

                                   OPINION
      The jury convicted Dwayne Uterral Hardeman of assault family violence by
occlusion. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B) (West Supp. 2017).
After finding two prior felony allegations to be “true” for enhancement purposes,
the jury assessed his punishment at confinement for life in the Institutional Division
of the Texas Department of Criminal Justice. Appellant presents fifteen points of
error in this appeal. We conclude that Appellant was entitled to a charge on a lesser
included offense. Accordingly, we reverse and remand.
                                     Background Facts
      The victim in this case is Appellant’s stepdaughter, L.A., who was seventeen
years old at the time of the incident and nineteen years old at the time of trial. The
indictment charged Appellant with intentionally, knowingly, or recklessly causing
bodily injury to L.A., a member of Appellant’s family or household, by applying
pressure to her throat or neck such that it impeded her normal breathing or circulation
of the blood.
      Prior to trial, L.A. recanted and signed an affidavit of non-prosecution. L.A.
told prosecutors that she did not remember what happened as evidenced by the
prosecutor’s Brady1 letter to defense counsel. All of the eyewitnesses to the incident,
who were members of Appellant’s family, also denied prior to trial that Appellant
assaulted L.A. L.A.’s mother, M.H., told prosecutors that Appellant did not assault
L.A. L.A.’s two sisters, D.S. and J.H., told prosecutors that L.A. said that Appellant
did not assault her. D.S. also told prosecutors that L.A. said she lied to police about
the assault.
      The State relied heavily at trial on L.A.’s initial allegations to police officers.
On the day of the assault, L.A. told officers that she was arguing with Appellant
when he grabbed her, placed both of his hands around her neck, and choked her after
she told Appellant that she wanted to leave. The next day, L.A.’s grandmother
brought her to the police station to talk with Detective Robert Lee of the Brownwood
Police Department. L.A. told Detective Lee that Appellant told her to get in the
house and that, when L.A. refused, Appellant grabbed her by the back of the neck
and started choking her.
      At trial, L.A. testified that Appellant is her stepfather, who has raised her since
she was three. In September 2014, L.A. traveled to Stephenville with her mother,


      1
       Brady v. Maryland, 373 U.S. 83 (1963).
                                                2
her mother’s friend, and her sisters to go to a park. While there, L.A. took several
prescription pills “to get high.” Upon returning home, L.A. and Appellant argued
over her drug use. L.A. testified that, in her drug-induced state, she was trying to
run toward the road occupied by moving vehicles and that Appellant tried to stop
her from running into the road by grabbing the collar of her shirt. L.A. testified that
Appellant did not choke her and did not put his hand on her chest or neck. 2 L.A.
remembered her mother yelling, “Stop, let her go.” L.A. averted Appellant’s hold
and took off running down the street.
        Jeff Davis, a volunteer firefighter, testified that he drove past a house where
he saw a male and female arguing outside. Davis and his fiancée, Morgan Wright,
saw L.A. “sprinting down the sidewalk” and “looking fearful.” After Davis pulled
over, L.A. ran up to his vehicle frantically crying and out of breath. Davis and
Wright transported L.A. to the Law Enforcement Center. Davis testified that he saw
a silver vehicle pull out of the driveway and follow him. Appellant, who was driving
the silver vehicle, followed closely behind them as they traveled to the Law
Enforcement Center.
        After L.A. composed herself, she told Davis that Appellant choked her.
Wright testified that L.A. kept touching her neck almost “like something had been
holding it.” Wright also testified that L.A. kept coughing and saying, “He has
choked me, and they are going to send me back.” Both Davis and Wright testified
that L.A. did not appear to be under the influence of drugs.
        M.H. (L.A.’s mother and Appellant’s longtime partner) subsequently testified
that, upon their return from Stephenville, L.A. was acting “vicious” and crazy
because of the prescription pills. According to M.H., Appellant grabbed L.A.’s shirt
because L.A. was acting crazy and trying to run out onto the freeway. However,

        2
         L.A. also testified that she was “angry at [her] dad so [she] made some stuff up,” and after getting
over being upset, she asked the detective not to prosecute Appellant.
                                                     3
M.H. testified that Appellant did not touch L.A.’s neck and that she had no idea why
L.A. would have been coughing or grabbing at her neck. M.H. did not remember
saying, “Don’t touch my daughter that way.”
      Sergeant Troy Carroll with the Brownwood Police Department testified that
he was dispatched to the Law Enforcement Center in response to Davis’s domestic
violence call. Upon arrival at the center, Sergeant Carroll separated the drivers and
spoke with Appellant and M.H. Sergeant Carroll testified that Appellant told him,
“I didn’t choke her,” and that Appellant admitted to grabbing L.A. by the back of
the neck and then the shirt. Sergeant Carroll also testified that L.A. did not appear
to be acting out of control from being high. Based on the information gathered at
the time, Sergeant Carroll determined that the situation represented a possible
discipline problem and not a domestic violence problem.
      Sergeant Stephanie Morgan with the Brownwood Police Department assisted
Sergeant Carroll in responding to the domestic violence call. Sergeant Morgan
testified that she spoke with L.A. and that L.A. appeared to be upset, frustrated, and
scared, but did not appear to be intoxicated. Sergeant Morgan testified that she did
not observe any markings or bruising on L.A.’s neck; however, she had previously
dealt with strangulations where the victim did not present with any physical marks
or bruising. L.A. told Sergeant Morgan that she said something to Appellant that
caused him to put both of his hands around her neck and choke her. Appellant was
not arrested as a result of these initial interviews.
      D.S. (Appellant’s other stepdaughter and L.A.’s younger sister) also testified
at trial. D.S. corroborated L.A.’s testimony that L.A. took pills. D.S. testified that,
when they arrived back at the house from the park, there was an argument about L.A.
running out to the road. D.S. testified that she did not see Appellant touch L.A.
because she was bending down to pick up something. D.S. testified that, later, L.A.
told her that Appellant had choked her. However, a couple of days after that, L.A.
                                            4
told her that nothing had happened. D.S. testified that she told officers that L.A.
could not breathe based on what L.A. had told her. D.S. did not think that L.A. had
gasped for air, and D.S. said that L.A. never appeared to be incapable of breathing.
      Detective Doug Hurt with the Brownwood Police Department testified about
an interview he conducted with D.S. on September 10, 2014. During the interview,
D.S. told Detective Hurt that Appellant put L.A. in a choke hold, which prompted
M.H. to respond, “You’re not going to grab my daughter like that.” D.S. stated that
L.A. told her she could not breathe, but D.S. did not know for sure. D.S. told
Detective Hurt that L.A. later told D.S. that Appellant did not choke her, but D.S.
said that she and her mother saw Appellant choke L.A.
      During the defense’s case-in-chief, L.A. was recalled to the stand. L.A.
testified that her breathing was not cut off as a result of anything Appellant did and
that Appellant did not choke her. L.A. again testified that she was lying when she
first made the initial allegations and that Appellant did not “deserve this right now.”
      Prior to closing arguments, defense counsel requested that the jury be charged
on the lesser included offense of assault family violence and offensive contact
assault. See PENAL § 22.01 (a)(1), (a)(3). On appeal, Appellant only complains of
the omission of the charge on assault family violence. Accordingly, we restrict our
discussion to the lesser included offense of assault family violence. Defense counsel
asserted that there was evidence that Appellant “grabbed ahold of [L.A.] by the back
of the neck, which would not cause occlusion.” The State responded that, under
Appellant’s claim that he was acting as a parent trying to prevent L.A. from running
out into a roadway, his conduct could not have constituted a gross deviation from
the standard of care of an ordinary person under the standard of recklessness. See
id. § 6.03(c) (West 2011). The State additionally asserted that the instruction on
accident or mistake was sufficient to address Appellant’s contention because of the
defense presented at trial, mainly that Appellant was acting as a parent to prevent
                                          5
L.A. from running out into the roadway.3 The trial court overruled Appellant’s
request for a charge on the lesser included offense of simple assault.
                                                Analysis
        In his fifteenth4 issue, Appellant challenges the trial court’s denial of his
request for an instruction on simple assault. See id. § 22.01(a)(1). We employ a
two-step test to determine whether the trial court was required to give a requested
charge on a lesser included offense. Bullock v. State, 509 S.W.3d 921, 924 (Tex.
Crim. App. 2016); see Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App.
2007). The first step is to determine whether the requested instruction pertains to an
offense that is a lesser included offense of the charged offense, which is a matter of
law. Bullock, 509 S.W.3d at 924 (citing Hall, 225 S.W.3d at 535–36). Under this
first step of the test, an offense is a lesser included offense if it is within the proof
necessary to establish the offense charged. Id. (citing Sweed v. State, 351 S.W.3d
63, 68 (Tex. Crim. App. 2011)).
        The State does not contest that the first prong of the test was satisfied in this
case. An offense is a lesser included offense of another offense if the indictment for
the greater offense either (1) alleges all of the elements of the lesser included offense
or (2) alleges elements plus facts from which all of the elements of the lesser
included offense may be deduced. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim.


        3
         The application portion of the charge contained a paragraph that provided as follows:
        If you find from the evidence that on the occasion in question [Appellant], while attempting
        to prevent [L.A.] from running away and possibly getting hit by a car, grabbed her shirt or
        neck with his hand and accidently or by mistake caused bodily injury to [L.A.] or if you
        have a reasonable doubt thereof, you will acquit the defendant of the offense of Assault
        Family Violence – Occlusion, and say by your verdict “not guilty[.]”
See PENAL § 8.02.
        4
        In his first issue, Appellant contends that the trial court erred in denying a motion for mistrial
concerning a statement of racial bias made by a potential juror during voir dire. Appellant complains about
the admission of various evidence in his second through fourteenth issues. We do not reach these issues
because our disposition of the fifteenth issue is dispositive of this appeal.
                                                     6
App. 2013). Section 22.01 of the Texas Penal Code describes assault family
violence by occlusion as assault with two additional requirements—that it be
committed against a family member and be committed by occlusion. Assault family
violence by occlusion is a third-degree felony.                  See PENAL § 22.01(b)(2)(B).
Accordingly, simple assault is a lesser included offense because it is included within
the proof necessary to establish assault family violence by strangulation. See
Marshall v. State, 479 S.W.3d 840, 844 (Tex. Crim. App. 2016) (recognizing that
simple assault may be enhanced to a third-degree felony committed against a family
member by occlusion); Harrison v. State, No. 06-11-00196-CR, 2012 WL 1813519,
at *5 (Tex. App.—Texarkana May 18, 2012, pet. ref’d) (mem. op., not designated
for publication) (“[A]ssault is established by proof of the same or less than all the
facts required to establish the commission of assault (family violence) by
occlusion.”).5
       The second step in the analysis asks whether there is evidence in the record
that supports giving the instruction to the jury. Bullock, 509 S.W.3d at 924–25
(citing Sweed, 351 S.W.3d at 68). “The second step is a question of fact and is based
on the evidence presented at trial.” Cavazos v. State, 382 S.W.3d 377, 383 (Tex.
Crim. App. 2012). Under the second step, a defendant is entitled to an instruction
on a lesser included offense when there is some evidence in the record that would
permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the
lesser included offense. Bullock, 509 S.W.3d at 925 (citing Rice v. State, 333 S.W.3d
140, 145 (Tex. Crim. App. 2011)). “The evidence must establish that the lesser




       5
         See also Guzman v. State, No. 14-17-00498-CR, 2018 WL 3118593, at *9 (Tex. App.—Houston
[14th Dist.] June 26, 2018, no pet. h.); Webb v. State, No. 10-16-00212-CR, 2017 WL 4543660, at *3 (Tex.
App.—Waco Oct. 11, 2017, pet. ref’d) (mem. op., not designated for publication); Amaro v. State, No. 08-
14-00052-CR, 2016 WL 3344568, at *8–9 (Tex. App.—El Paso June 14, 2016, no pet.) (not designated for
publication).
                                                   7
included offense is a valid, rational alternative to the charged offense.” Id. As stated
by the court in Bullock:
              More particularly, the second step requires examining all the
       evidence admitted at trial, not just the evidence presented by the
       defendant. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App.
       2011). The entire record is considered; a statement made by the
       defendant cannot be plucked out of the record and examined in a
       vacuum. Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App.
       2000). Anything more than a scintilla of evidence is adequate to entitle
       a defendant to a lesser charge. Sweed, 351 S.W.3d at 68. Although this
       threshold showing is low, it is not enough that the jury may disbelieve
       crucial evidence pertaining to the greater offense, but rather there must
       be some evidence directly germane to the lesser-included offense for
       the finder of fact to consider before an instruction on a lesser-included
       offense is warranted. Id. “However, we may not consider the
       credibility of the evidence and whether it conflicts with other evidence
       or is controverted.” Goad, 354 S.W.3d at 446–47. “Accordingly, we
       have stated that the standard may be satisfied if some evidence refutes
       or negates other evidence establishing the greater offense or if the
       evidence presented is subject to different interpretations.” Sweed, 351
       S.W.3d at 68.
509 S.W.3d at 925.
       In considering whether a lesser offense is a valid, rational alternative to the
charged offense, we must compare the statutory requirements between the greater
offense and the lesser offense to determine whether evidence exists to support a
conviction for assault but not assault family violence by occlusion. See id. In this
case, there is no contention that L.A. was not a family member. 6 Accordingly, we
focus our attention on the occlusion element. Affirmative evidence that is directly
germane to the existence of the lesser included offense is required. See Hampton v.
State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). “Meeting this threshold


       6
         The Austin Court of Appeals addressed the family member element in Leach v. State, No. 03-13-
00784-CR, 2015 WL 8607060, at *5–7 (Tex. App.—Austin Dec. 9, 2015, no pet.) (mem. op., not designated
for publication).
                                                  8
requires more than mere speculation—it requires affirmative evidence that both
raises the lesser-included offense and rebuts or negates an element of the greater
offense.” Cavazos, 382 S.W.3d at 385.
       In Harrison, an appeal arising from a conviction for assault family violence
by occlusion, the Texarkana Court of Appeals determined that the defendant was not
entitled to a charge on the lesser included offense of assault because there was no
affirmative evidence that the defendant did not choke the victim. 2012 WL 1813519,
at *6–7. The Fort Worth Court of Appeals employed the same analysis and reached
the same conclusion in Pratt v. State, No. 02-13-00039-CR, 2013 WL 5675118, at
*3–4 (Tex. App.—Fort Worth Oct. 17, 2013, no pet.) (mem. op., not designated for
publication). The Waco Court of Appeals also employed the same analysis and
reached the same conclusion in Webb. 2017 WL 4543660, at *4 (“[B]ecause there
is no affirmative evidence that [the victim] was not choked, the second step of the
. . . test has not been met.”).
       Appellant asserts that he was entitled to an instruction on the lesser included
offense of simple assault because, among other things, there was testimony that
Appellant’s actions did not impede L.A.’s breath or circulation. L.A. testified that
Appellant did not choke her. L.A. also testified that her breathing was not cut off or
impeded in any manner. M.H. also testified that Appellant did not choke L.A.
Officer Morgan testified that there were no marks or bruises on L.A.’s neck. Based
upon this evidence, Appellant contends that a rational jury could have found him
guilty only of simple assault. We agree. Under the analysis employed by our sister
courts in Harrison, Pratt, and Webb, the evidence cited by Appellant constitutes
affirmative evidence that Appellant did not choke or occlude L.A.’s breathing or
blood flow.
       The State responds that there must also be “a scintilla of evidence that
Appellant grossly deviated from the standard of care that an ordinary person in his
                                          9
position would have exercised under all the circumstances in causing that bodily
injury” as it relates to Appellant’s defensive theory. In this regard, the State contends
that Appellant’s defensive theory that he grabbed L.A. to prevent her from running
into the road negates the availability of a lesser-included-offense instruction. The
State has not cited any authority, and we have found none, mandating that the
defendant is restricted to his defensive theory in order to obtain a charge on a lesser
included offense. To the contrary, the Court of Criminal Appeals noted in Goad that
the second step requires examining all the evidence admitted at trial, not just the
evidence presented by the defendant. 354 S.W.3d at 446 (citing Rousseau v. State,
855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). Accordingly, affirmative evidence
from any source can fulfill the second step of the analysis.
      Moreover, there is evidence that Appellant grabbed L.A. in some manner
during the argument. L.A. testified that Appellant grabbed her by the bottom of her
shirt and then by the collar of her shirt. M.H. testified that Appellant grabbed L.A.
“[f]rom her shirt.” Sergeant Carroll testified that Appellant admitted to grabbing
L.A. by the back of the neck. Additionally, Sergeant Carroll testified that M.H.
admitted to him that Appellant grabbed L.A. by the back of the neck.
       We conclude that the jury could have rationally believed that Appellant
caused L.A. bodily injury in the manner that he grabbed her but that he did not
impede her breath or blood by applying pressure to her throat or neck. Therefore,
there was more than a scintilla of evidence that Appellant may have intentionally,
knowingly, or recklessly caused L.A. bodily injury by grabbing her, but did not
intentionally, knowingly, or recklessly impede her breathing or blood circulation.
Thus, the trial court erred in denying the request for a charge on the lesser included
offense of simple assault.
      Having found error in the trial court’s denial of the requested instruction on
the lesser included offense of simple assault, we must determine whether that error
                                           10
requires reversal. The erroneous refusal to give a requested instruction on a lesser
included offense is charge error subject to an Almanza7 harm analysis. Saunders v.
State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992); Nangurai v. State, 507 S.W.3d
229, 234 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). Under Almanza, when
jury-charge error has been preserved, as it was in this case, we will reverse if the
error in the court’s charge resulted in some harm to the accused. Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005); see Almanza, 686 S.W.2d at 171. “[T]he
harm from denying a lesser offense instruction stems from the potential to place the
jury in the dilemma of convicting for a greater offense in which the jury has
reasonable doubt or releasing entirely from criminal liability a person the jury is
convinced is a wrongdoer.” Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim.
App. 2005). Ordinarily, if the absence of a charge on the lesser included offense left
the jury with the sole option either to convict the defendant of the charged offense
or to acquit him, some harm exists. Saunders v. State, 913 S.W.2d 564, 571 (Tex.
Crim. App. 1995).
      The State asserts that, because of the inclusion of the defensive instruction on
accident or mistake, Appellant did not suffer harm. The State contends that this
instruction “adequately provided the jury with a way to assess [the evidence] in a
manner that protected Appellant.” We disagree. Without a charge on the lesser
included offense of simple assault, the jury only had the option to either convict
Appellant of the charged felony offense or acquit him. In this situation, some harm
exists, particularly when one considers that the maximum punishment for simple
assault is one year in jail, whereas Appellant received a life sentence arising from
his felony conviction for assault family violence by occlusion that was enhanced by
his prior felony convictions. See PENAL §§ 12.21, 12.43 (confinement as punishment


      7
       Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
                                               11
for class A misdemeanor may not exceed one year in jail); Bignall v. State, 899
S.W.2d 282, 284 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (holding that the
imposition of a penalty that is more severe than the potential maximum penalty for
the requested lesser included offense is evidence of some harm). Accordingly, we
conclude that Appellant suffered some harm. We sustain Appellant’s fifteenth issue
on appeal. We do not reach Appellant’s other issues because of our disposition of
his fifteenth issue. See TEX. R. APP. P. 47.1.
                                         This Court’s Ruling
         We reverse the judgment of the trial court, and we remand the cause for a new
trial.




                                                           JOHN M. BAILEY
                                                           JUSTICE


August 16, 2018
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J., Bailey, J.,
and Wright, S.C.J.8

Willson, J., not participating.




         8
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                     12
