Opinion filed August 21, 2015




                                        In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00229-CR
                                     __________

               TRENTON MCVEL WILLIAMS, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR41145


                      MEMORANDUM OPINION
      Trenton McVel Williams appeals his jury conviction for aggravated assault
with a deadly weapon.           The trial court assessed Appellant’s punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of fifteen years. In two issues on appeal, Appellant argues that the
trial court erred when it (1) denied his request for the jury to be charged on the lesser
included offense of simple assault causing bodily injury and (2) admitted an altered
surveillance video into evidence. We reverse and remand.
                                 Background Facts
      The indictment charged Appellant with intentionally, knowingly, and
recklessly causing bodily injury to Ethan Zeese by cutting and stabbing Zeese. The
indictment further alleged that Appellant used and exhibited a deadly weapon in the
form of a knife during the commission of the assault.
      In November 2012, Zeese and Justin Derese were in Midland for work. They
shared a room at the West Texas Motor Inn. Sometime during the night, they stepped
outside their room to smoke. They encountered Appellant in the motel parking lot.
He was sitting in the driver’s seat of a red Dodge Avenger. A verbal disagreement
ensued between Appellant, Zeese, and Derese. Testimony differed as to the cause
of the dispute.
      Derese approached Appellant’s car to talk to him. The two had a conversation
that ended when Appellant’s door bumped Derese and Derese turned to walk away
with Zeese. Appellant claimed that Derese spit on him while he sat in the car and
that Derese threatened him, called him a name, and threw a beer on him. Derese
denied that he ever threatened Appellant, but he admitted that he threw liquid onto
Appellant’s car, though he claimed it was water not beer.
      Appellant testified that he could have driven away from the motel at that point,
but he instead got out of the car and “went after” Derese. Appellant attacked Derese,
and the two started to fight. Shortly thereafter, Zeese intervened on behalf of Derese,
and the fight continued. The State introduced a surveillance video recording of the
fight. The video showed Appellant go after Derese as he walked away from the car.
The video further depicted the three men in a fight that eventually ended, after which
Appellant briefly went after Derese again. The encounter concluded with Appellant
gathering some belongings and leaving the scene in his vehicle.
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       Zeese suffered an injury to his head sometime during the physical altercation.
Appellant testified that he was attempting to fight only Derese and that he never
“went after” Zeese, that he never touched Zeese, and that he never “assaulted” Zeese.
But later in Appellant’s testimony, the prosecutor asked him, while watching the
video of the fight, if Appellant “attacked Mr. Zeese.” Appellant answered
affirmatively. Appellant further claimed that he never possessed a knife at any time
during the altercation. Officer Michael Nickell and Lieutenant Jerad Fain of the
Midland Police Department arrived at the scene after the fight. They testified that
the wound on Zeese’s head appeared to be from a knife. Zeese testified that he did
not see Appellant with a knife “at the beginning” of the fight but that he saw
Appellant with a knife later in the fight. Zeese further testified that he initially
thought Appellant struck him with a fist, but he later concluded that it was
Appellant’s knife that caused his wound. Derese testified that he saw a knife in
Appellant’s hand during the fight, a claim that Appellant disputed.
                                              Analysis
       In his first issue, Appellant challenges the trial court’s denial of his request
for an instruction on the lesser included offense of simple assault. We apply the
Aguilar/Rousseau1 test to determine whether an instruction on a lesser included
offense should be given to the jury. Cavazos v. State, 382 S.W.3d 377, 382 (Tex.
Crim. App. 2012). This is a two-prong test. The first prong is to determine “if the
proof necessary to establish [the elements of] the charged offense also includes the
lesser offense.” Id. If this threshold is met, the second prong has us decide whether
there is some evidence “in the record that would permit a jury rationally to find that
if the defendant is guilty, he is guilty only of the lesser offense.” Rousseau, 855
S.W.2d at 673. The purpose of the lesser included instruction is to avoid leaving

       1
        See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State, 682 S.W.2d
556, 558 (Tex. Crim. App. 1985).

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jurors with two “equally distasteful” options: (1) acquit the defendant even though
the jury believes he is guilty of the lesser included offense or (2) convict the
defendant even though the jury does not believe he committed the charged offense.
Eldred v. State, 578 S.W.2d 721, 723 (Tex. Crim. App. [Panel Op.] 1979). To avoid
such a situation, lesser included instructions are liberally permitted. Bignall v. State,
887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
         The first step asks whether the lesser included offense is included within the
proof necessary to establish the offense charged. McKithan v. State, 324 S.W.3d
582, 587 (Tex. Crim. App. 2010). We compare the statutory elements and any
descriptive averments in the indictment for the greater offense with the statutory
elements of the lesser included offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5
(Tex. Crim. App. 2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App.
2009); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007); see also TEX.
CODE CRIM. PROC. ANN. art. 37.09 (West 2006). This step is a question of law. Hall,
225 S.W.3d at 535. The State does not contest that the first prong of the test was
satisfied in this case. Bodily injury assault in the manner alleged, but without the
deadly weapon, is a lesser included offense of the alleged aggravated bodily injury
assault. See Jones v. State, 241 S.W.3d 666, 671 (Tex. App.—Texarkana 2007, no
pet.).
         The second step is to determine if there is some evidence from which a rational
jury could acquit the defendant of the greater offense, while convicting him of only
the lesser included offense. Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim.
App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The
evidence must establish the lesser included offense as “a valid rational alternative to
the charged offense.” Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008);
see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011). We review all
of the evidence presented at trial. Hayward v. State, 158 S.W.3d 476, 478–79 (Tex.
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Crim. App. 2005); Rousseau, 855 S.W.2d at 673. Anything more than a scintilla of
evidence is sufficient to entitle a defendant to a lesser charge. Goad v. State, 354
S.W.3d 443, 446 (Tex. Crim. App. 2011). In determining whether the evidence
raises the requested lesser included offense, we do not consider the credibility of the
evidence or whether it conflicts with other evidence. Saunders v. State, 840 S.W.2d
390, 391 (Tex. Crim. App. 1992).
      Appellant argues that he was entitled to an instruction on the lesser included
offense of simple assault because, among other things, he testified that he did not
possess a knife and the video recording of the fight does not depict a knife in his
possession. Based upon this evidence, Appellant contends that a rational jury could
have found him guilty only of simple assault, not aggravated assault with a deadly
weapon. The State argues that Appellant did not just deny that he possessed a knife
but, rather, denied that he ever touched the victim (Zeese) at all. The State contends
that such a denial equates to a complete denial of guilt as to either aggravated assault
or simple assault.    The State cites Lofton v. State for the proposition that a
defendant’s testimony that he committed no offense at all is not adequate to raise the
issue of a lesser included offense. 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
      In Lofton, two police officers decided to arrest the defendant after they
responded to a domestic disturbance call involving the defendant. Id. at 650. The
defendant realized he was going to be arrested and attempted to leave the scene. Id.
When one of the officers attempted to restrain the defendant, he struck the officer
twice in the face. The second blow knocked the officer’s glasses across the room.
Id. The two officers and the defendant engaged in a struggle, and the defendant was
eventually restrained, arrested, and convicted of assault on a public servant. Id. at
649–51. At trial, the trial court denied the defendant’s request for an instruction on
the lesser included offense of resisting arrest. Id. at 650.


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        The Court of Criminal Appeals affirmed the trial court’s denial of the
requested instruction. Id. The court observed that the defendant “flatly denied that
he struck [the officer]. He denied touching either officer at all.” Id. at 651. The
defendant further testified that he “didn’t feel I was resisting or nothing like that. I
didn’t want to because I know that would not be right. I was just merely stating that
I hadn’t done anything wrong.” Id. The court held that “if a defendant either
presents evidence that he committed no offense or presents no evidence, and there
is no evidence otherwise showing that he is guilty only of a lesser-included offense,
then a charge on a lesser-included offense is not required.” Id. at 652 (emphasis
added) (quoting Bignall, 887 S.W.2d at 23) (internal quotation marks omitted).
        Relying upon Lofton, the State contends that Appellant did not present any
evidence that he was guilty only of a simple assault committed on Zeese.
Specifically, the State asserts as follows:
              In sum, Appellant denies he committed any offense against
        Zeese. Appellant denied he struck Zeese or scratched Zeese. Appellant
        denied he ever touched Zeese. He does not even concede in his
        testimony that he might have hit Zeese while struggling with Derese.
        Appellant has not provided evidence to raise the issue of a lesser
        included offense.
(internal record citations omitted). Despite Appellant’s testimony that the State cites
above, there is one instance in the record where Appellant answered affirmatively to
the prosecutor’s question of whether he had “attacked Mr. Zeese.”2 Additionally,
we must consider all of the evidence admitted a trial, not just the evidence presented
by the defendant. Goad, 354 S.W.3d at 446. The surveillance video shows that
Zeese was actually involved in the physical altercation between Appellant and
Derese for a period of time. Zeese described his participation in the following

        2
        This reference to Zeese may have been a mistake on both the part of the prosecutor and Appellant
because each of them referenced Derese a few lines later in discussing the same activities portrayed on the
video. Nonetheless, it is some evidence of the lesser included offense.

                                                    6
manner: “I had stood there to see if the confrontation was going to stop, and then I
went to try to pull the Defendant off the -- off of Justin Derese.” The prosecutor
asked, “[H]ow did the Defendant respond to you trying to pull him off of your
friend?” Zeese responded as follows: “He had gotten out of my arms, and what I had
thought to be a punch to the side of the head turned out to be later a stab.” Thus,
there is evidence that Appellant was involved in a physical altercation with Zeese
and that Zeese suffered a bodily injury as a result of the altercation. Furthermore,
Appellant testified that he did not use or exhibit a knife at any time during the
episode. Accordingly, there is some evidence from which a rational jury could have
found Appellant guilty of only simple assault. “Anything more than a scintilla of
evidence is sufficient to entitle a defendant to a lesser charge.” Goad, 354 S.W.3d
at 446 (citing Bignall, 887 S.W.2d at 23). We conclude that the trial court erred in
denying the request for a charge on the lesser included offense of simple assault.
      We must next analyze whether Appellant has suffered reversible harm by the
failure to include a charge on the lesser included offense. The erroneous refusal to
give a requested instruction on a lesser included offense is charge error subject to an
Almanza harm analysis. Saunders, 840 S.W.2d at 392; see Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985). 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
                                           7
him, some harm exists. Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App.
1995). In this case, the jury was faced with that same predicament. Accordingly,
we conclude that Appellant suffered some harm, and we must reverse. We sustain
Appellant’s first issue on appeal. We need not address Appellant’s second issue
because of our disposition of the first 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 21, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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