                    /60f/S
31G.1NAL                  IN   THE
               COURT DF CRIMINAL APPEALS
                         OF TEXAS

                                                    A RECEIVED...
                     EDRICK DUNN,
                         PETITIONER
                                                    COURT OF CRIMINAL APPEALS
                                                         DEC 112015
                               v.




                   THE   STATE OF TEXAS
                                                     AbelAcosta, Clerk
                     ************




           Petition in Cause No. 2011-432,529, from the
             140th District Court of Lubbock County, Texas,
                    Hon.Jim Darnell presiding
           and Cause No. 07-13-0037B-CR in the Court of Appeals
              for the Seventh Supreme Judicial District of Texas

                     ************




           PETITION FOR DISCRETIONARY REVIEW
                                                       FILED IN
                         Edrick Dunn           COURT OF CRIMINAL APPEALS
                   TDCO #01896519
                     Eastham Unit                    DEC 112015
                   2665 Prison Road #1
                   Lovelady, TX 75851
                                                   Abel Acosta, Cierk
                         EDRICK DUNN,
                 Pro se as     Petitioner
                      IDENTITY OF JUDGE, PARTIES, AND COUNSEL
                         (RULE 68.4(a), TEX.R.APP.PROC.)

A complete list of all parties to the trial court's judgment or order appealed
from, and the names and addresses of all trial and appellate counsel includes:

                               Edrick Dunn, pro se
                               TDCJ #01896519
                                Eastham Unit
                              2665 Prison Road #1
                               Lovelady, TX 75B51



                          THE STATE OF TEXAS,^Respondent

FOR THE PETITIONER:                             FOR THE STATE OF TEXAS:



Edrick Dunn, pro se                             MR.JEFF    FORD
TDCJ #01896519                                  ATTORNEY    FOR THE
Eastham Unit                                    STATE    OF TEXAS
2665 Prison Road #1                             Office of the District Attorney
Lovelady, TX 75851                              Lubbock County
                                                P0 Box 10536
                                                Lubbock, TX 79408-3536
                                                (806) 775-1100
TRIAL COURT JUDGE:                              (806)775-1154 (fax)


Hon.   Jim Darnell                              Hon.    LISA McMINN
Lubbock County Courthouse                       State Prosecuting Attorney
904 Broadway                                    P0 Box 12405
140th District Court, Lubbock County            Austin, TX 78711
P0 Box 10536                                    (512)463-1660
Lubbock, TX 7940B-3536                          (512)463-5724 (fax)
(806) 775-1128
                             TABLE OF CONTENTS
                         (RULE 68.4(a), TEX.R.APP.PROC.)

                                                                    PAGE


PARTIES                                                                2


TABLE OF CONTENTS                                                      3


INDEX OF AUTHORITIES                                                   4


STATEMENT REGARDING ORAL ARGUMENT                                      6

STATEMENT OF THE CASE                                                  6


STATEMENT OF PROCEDURAL HISTORY                                        6

PETITIONER'S GROUNDS FOR REVIEW                                        7


NUMBER ONE: THE COURT OF APPEALS ERRED IN;IHOQDINGTTHATTTHETTRIAL
COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO INCLUDE AN
APPLICATION PARAGRAPH FOR THE LESSER-INCLUDED OFFENSE OF THEFT
FROM AN ELDERLY INDIVIDUAL IN THE JURY CHARGE ON GUILT-
INNOCENCE, AS THE SAME UAS THE LAU) OF THE CASE FROM THE RECORD
AT TRIAL


REASONS FOR REVIEW                                                     7

AS TO GROUNDS NUMBER ONE:   THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL   APPEALS.


ARGUMENT                                                               8

CONCLUSION AND PRAYER                                                 14

CERTIFICATE OF COMPLIANCE                                             14

CERTIFICATE OF SERVICE                                                15

APPENDIX                                                              15
                                      INDEX OF AUTHORITIES
                               (RULE 68.4(b), TEX.R.APP.PROC.)

                                                                       PAGE


STATE STATUTES


TEX. CODE. CRIM.PROC.   Art. 36.1 4                                     10


TEX.PEN.CODE § 29.03                                                      6

PEN.CODE § 31 .03(f)(3)(A)                                                8

STATE CASES

Bell v. State, 693 S.W. 2d 434,442 (Tex.Crim.App. 1985)                 11

Cavazos v. State, 382 S.W. 3d 377 (Tex.Crim.App. 2012)                  11

Hall v. State, 225 S.W. 3d 524,534-535 (Tex.Crim.App. 2007)             11

Hall v. State, 283 S.W. 3d 137 (Tex. App .-Austin 2009 ,pet .ref' d)    11

Lugo v. State, 667 S.W. 2d 144 (Tex.Crim.App. 1984)                     12

Ramos v. State, 865 S.W. 2d 463,465 (Tex.Crim.App. 1993)                11

Saunders v. State, 840 S.W. 2d 390 (Tex.Crim.App. 1992)                 12

Sueed v. State, 351 S.W. 3d 63,67 (Tex.Crim.App. 2011)                  11
                                        PD-0495-15


                                          IN   THE
                              COURT OF CRIMINAL APPEALS
                                         OF TEXAS



                                  • EDRICK DUNN,
                                        PETITIONER




                                  THE    STATE OF TEXAS

                                    ************




                        Petition in Cause No. 2011-432,529, from the
                          140th District Court of Lubbock County, Texas,
                                 Hon.Jim Darnell presiding
                        and Cause No. D7-13-0037B-CR in the Court of Appeals
                           for the Seventh Supreme Judicial District of Texas

                                    ************




                        PETITION FOR DISCRETIONARY REVIEW


                                     EdrickrDunn
                                  TDCJ #01896519
                                    Eastham Unit
                                  2665 Prison Road #1
                                  Lovelady, TX 75851


                                        EDRICK DUNN,
                                Prorse as      Petitioner



TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW EDRICK DUNN,   Petitioner, appearing pro se, and petitions the Court

of Criminal Appeals of Texas to exercise its discretionary jurisdiction to review

the judgement of the Court of Appeals for the Seventh District of Texas, Amarillo,

Texas. In support of this Petition, he would show this Honorable Court as Follows.
                        5TATEMENT REGARDING ORAL ARGUMENT


     Petitioner waives oral argument.

                                 STATEMENT OF THE CASE


     On October 11, 2011, Petitioner was charged in a single-count indictment

in Cause No. 2011-432,529, in the 140th District Court of Lubbock County.

He was charged under Penal Code § 29.03 with Aggravated Robbery. The alleged

victim was Norma Chance, and the offense date given was September 7, 2011

(Clerk's Record [MCR"]p.7).

     A non-evidentiary pretrial hearing was held in the case on January 10,

2013 (Reporter's Record ["RR"]v.2). Petitioner's jury trial on guilt-innocence

commenced on October 22, 2013 in the 140th District Court, Hon.Jim Darnell

presiding. Petitioner was convicted on October 23, 2013 (RR v.5,p.24).

     Sentencing proceedings commenced before the jury on October 23, 2013.

On October 24, 2013, the jury sentenced Petitioner to fifty (50) years imprisonment

in the Texas Department of Criminal Justice, Institutional Division (RR v.7,p.24).

Petitioner perfected appeal on November 7, 2013 (CR p.133).

                          STATEMENT OF PROCEDURAL HISTORY
                          (RUEE'-68fG(eh',TEX:R.RPP£-PRGC:>

     Then attorney David Crook submitted a brief to the Seventh Court of Appeals

on May 19, 2014. The Seventh Court of Appeals rendered its decision affirming

Petitioner's conviction on August 11, 2014. Then counsel mailed the appellant

a copy of the brief submitted on his behalf on the same date. No motion for

rehearing was filed by Petitioner's then counsel, David Crook, of Crook &

Jordan in Lubbock.

     Petitioner's counsel at the time, David Crook, failed to file a Petition

for Discretionary Review on Petitioner's behalf. Petitioner then filed, pro se,

a post-conviction writ of habeas corpus pursuant to Code of Criminal Procedure

11.07, et. seq. Relief was granted as to the writ on V^OslewW.^T^pc?^ and
Petitioner was permitted to file an out-of-time Petition for Discretionary
Review no later than OecewV^ev'-W-V olo\!o This petition was then timely filed.
GROUNDS FOR REVIEU


NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO INCLUDE AN
APPLICATION PARAGRAPH FOR THE LESSER-INCLUDED OFFENSE OF THEFT
FROM AN ELDERLY INDIVIDUAL IN THE 3URY CHARGE ON GUILT-
INNOCENCE, AS THE SAME UAS THE LAU OF THE CASE FROM THE RECORD
AT TRIAL.

REASON FOR REVIEU


AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS UITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.
                                 ARGUMENT


NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO INCLUDE AN
APPLICATION PARAGRAPH FOR THE LESSER-INCLUDED OFFENSE OF THEFT
FROM AN ELDERLY INDIVIDUAL IN THE JURY CHARGE ON GUILT-INNOCENCE, AS
THE SAME UAS THE LAU OF THE CASE FROM THE RECORD AT TRIAL.


                           Applicable Portions of the Record

     Petitioner was indicted for Aggravated Robbery, the aggravating element

being not the alleged use of a deadly weapon, or the infliction of seriously bodily

injury, but rather the age of the victim. The indictment charged Petioner with

"intentionally, knowingly, or recklessly" causing bodily injury to Ms.Norma

Chance, the alleged victim (CR p.7). Petitioner avers that the jury charge should

have contained an alternate application paragraph so that the jury could have

convicted on the lesser-included offense of Theft from an Elderly Person,

PEN. CODE §31.03(f)(3)(A). This is because not only was the evidentiary record

at trial equivocal and ambiguous on whether the alleged victim was injured, but

also because the evidence showed the event at issue to be purse-snatching, and

when a person commits a purse-snatching by grabbing a purse from another individual

without more, a threshold question is presented as to whether there was any

intent to injure, even if in the event the alleged victim falls, for example, or

sustains incidental injuries. Such a factual scenario virtually in every instance

would present a fact issue for a jury or the trier of fact. Therefore, the jury

should have been permitted to make the determination.

     Ms.Norma Chance was the alleged victim in the case.   At trial the State fed

Ms.Chance a leading question about Petitioner knocking her down. Ms.Chance

demurred and said that he didn't knock her down,   but rather grabbed her purse,    and

when he "pulled up," it made her "go up." She was "hanging on to" her purse, or

trying to (RR v.4,p.41). She fell down (RR v.4,p.42). Therefore, the record is

devoid of any evidence that Petitioner struck Chance or otherwise directly

assaulted her. The case was a purse snatching, and Ms.Chance happened to fall
                                                                                    8
as a   result.


       At trial Ms.Chance at first said that she had no visible injuries on her

person. Later she said that her hands and fingers were bruised. The police

then took pictures and asked if she wanted to go to the hospital. She said no

(RR v.4,p.49). Also, Chance, despite her advanced years, chased Appellant.

According to her, she was "running after him" (RR v.4,p.43). This was after

being robbed and supposedly injured. She certainly demonstrated admirable

activity for a woman of her age. (RR v .4,pp.41-44) . The State never introduced

any; medical' records^'at"ttiial, ^although'-Chance :testified"- that-she'':weht ;:to?a: doctor

(RR v.4,pp.55-56). Latonya ["Tonya"] Long, the store employee, testified that she

could not remember if Chance had any injuries (RR v.6,p.87). She did not recall

what the police took pictures of when they photographed Chance. On cross,

Tonya said that Chance had a limp when coming back up to her after the robbery,

but admitted that she could not recall seeing Chance limp in the store video

(RR v.4,p.109). When counsel reminded Tonya that chance walked home, Tonya

first denied recalling, and then allowed that Chance might have "left walking"

(RR v.4,pp.109-110). Officer Jeremy Jones stated that Chance was offered medical

attention but turned it down (RR v.4,p.140). Jones saw Chance walking about

and could not see any impairment, other than Chance being elderly (RR v.4,p.142).

Corporal Jay White, the CSO on the instant case (RR v.4,p.149), photographed

Chance and did testify that he saw injuries on Chance's right forearm, hand,

and finger (RR v.4,p.151). White testified that Chance had difficulty walking

when he saw her, but also testified that he did not offer her medical care

or a ride home (RR v.4,pp.1 58-159).

                             Opinion of the Court of Appeals

       In his Brief to the Court of Appeals, Petitioner advanced the argument restated

here that the Trial Court abused its discretion by overruling his objection to the

omission of an application paragraph permitting the trier of fact to convict only
                                                                                             9
for the lesser-included offense of theft from an Elderly Person, rather than only

Aggravated Robbery. The case was aggravated due to the age of the victim, not due to

the display of a deadly weapon or the infliction of serious bodily injury.

(See brief of Appellant,pp.31-42).

     At trial, Petitioner preserved error by (inter alia) objecting, pursuant to

Article 36.14 of the Code of Criminal Procedure, to the omission of the option'of

convicting for "theft from an elderly person" from the charge (RR v.4,p.161). The

Court of Appeals did not base its holding on any assertion that error as to the

charge was not preserved. Since Petitioner was complaining of the undue omission of a

lesser-included offense from the charge, the Court of Appeals referred to the "two-

step analysis" used for review of charge this issue, that of Hall v. State, 225 S.W.

3d 524,535-536(Tex.Crim.App.2007)[Opinion of the Court of Appeals,p.2]. The Hall opinion

said that the reviewing court must determine if the proof necessary to establish the

charged offense also included the lesser offense[citing Cavazo v. State, 3B2 S.W. 3d

377,383(Tex.Crim.App.2012)]. In its opinion on the instant case, the Court of Appeals

further noted that pursuant to the holdings cited, supra, if an appellant meets the

requirements of the first step, the reviewing court must then:considernwhether "the

evidence shows that if Appellant is guilty, he is guilty only of the lesser offense"

[Opinion of the Court of Appeals,p.2.] Petitioner had noted the same test and cited the

same two cases in his brief [Brief of Appellant,p.35]. In affirming the case, the ?,;.

Court of Appeals tacitly agreed with Petitioner that in view of the indictmentrand

evidence in this Cause, theft from an Elderly Person was in fact a lesser-included

offense of Aggravated Robbery [from the age of the victim as aggravating element].

The opinion of the Court of Appeals stated that, "What Appellant is missing is evidence

tending to show that if he is guilty of any offense, he is only guilty of theft".

[Opinion of the Court of Appeals,p.2]. It also stated that, "Simply put, Appellant failed

tfliestablish'.'the second prong:.offour two-step •analysis" [0pinibri7af-the Court of Appeals,


                                                                                     10
p.3]. Thus, the argument here concerns whether the evidence at Petitioner's

trial presented any issue as to the lesser offense, thereby necessitating

its inclusion in the charge.

Requirement of the Inclusion of a Lesser-Included Offense Where the Evidence

                               Raises   the   Issue


     A trial court should instruct the jury on a lesser-included offense if

(1) the offense in question is a lesser-included offense, and (2) the record

contains some evidence that would permit a rational jury to find the defendant

guilty only of the lesser-included offense. Hall[Court of Criminal Appeals]

supra, at 473, Hall[Austin], supra, at 157, Sweed v. State, 351 S.W. 3d 63,

67 (Tex.Crim.App.2011). That is a defendant [given the application of the

first prong, supra] qualifies for a lesser-included offense instruction if

the record contains evidence that, if believed by the jury, negates or refutes

an element of the greater offense while providing a rational alternative finding

on any associated element of the lesser offense, or is subject to different

interpretations by the jury. Cavazos v. State, 382 S.W. 3d 377 (Tex.Crim.App.

2012). Put another way, a defendant is entitled to an instruction on a lesser-

included offense if some evidence from any source raised a fact issue on whether

he is guilty of only the lesser offense, regardless of whether the evidence

is weak, impeached, or contradicted. Bell v. State, 693 S.W. 2d 434, 442 (Tex.Crim.App.

19B5). In applying the second prong, the reviewing court must "examine the

entire record instead of plucking evidence from the record and examining it

ina vacuum." Ramos v. State, 865 S.W. 2d 463, 465 (Tex.Crim.App. 1993). Anything

more than a scintilla of evidence is sufficient to entitle a defendant to


a lesser charge. Id. at 489.

                         Argument for Inclusion of the Instruction

     There is more than a scintilla of evidence, under the prevailing standard

for the inclusion of a lesser-included offense, that Ms.Chance did not suffer

                                                                                 11
bodily injury on the occasion at issue. She testified that despite being over

70 years of age, after being robbed, she ran after Appellant.   She was not

offered a ride home, and wound up walking home. She turned down medical care.

She did not seek out a doctor that day, but saw one the following day by previous

appointment. She stated before the jury that she did not have any visible

injuries, before hastily amending her answer (RR v.4,p.46). The store clerk,

who was certainly sympathetic to her, admitted she could not see Ms.Chance

limping on the video introduced into evidence. She also stated that she could

not remember if Ms.Chance had any injuries (RR v.4,p.87). Dne of the police

witnesses admitted he could see no impairment in her gait. The State never

introduced any of the medical records pertaining to the event, and Ms.Chance

never identified the physician who treated her. Certainly there was other

testimony tending to show injury, but there was more than a scintilla indicating

there were no injuries. The question was for the jury.

     There was also second basis for the inclusion of the lesser-included

offense instruction other than the uncertainty raised by the evidence about

whether Ms.Chance actually suffered bodily injury. That is the patent uncertainty,

from the evidence, as to whether Petitioner even recklessly inflicted bodily

injury upon her, in a case lacking any evidence that he struck her. There

is no evidence that he intentionally or knowingly inflicted injury on her.

More generally, Petitioner avers that a case like the one at bar where the

evidence as a threshold matter presents an issue as to whether he even inflicted

bodily injury is, ipso facto, going to require the inclusion of a lesser-included

offense instruction, where applicable. Ms.Chance testified that Appellant

did not knock her down or strike her; rather, he grabbed her purse and "pulled

up," making her "go up" [and fall] since Appellant was "taller than I was"

(RR v.4,p.41). That is, since the evidence showed basically that Appellant

grabbed a purse, but did not show that he struck or otherwise phyisically lashed

                                                                                12
out directly at the victim, the jury should on the face of things be given

the option of convicting for the appropriate grade of theft [of person] , rather

than necessarily having to include the assaultive component. Saunders v. State,

840 S.W. 2d 390 (Tex.Crim.App. 1992), presents some broad similar.itijBS ';to !;fehe

issue of the applicability of a lesser-included offense. In Saunders, the defendant

was convicted of murder,   and the trial court denied the inclusion of a lesser-

included offense of criminally negligent homicide inrtheccharge. In reversing

on this point, the Court of Criminal. Appeals held that a negligent homicide

instruction was required where the evidence showed that the defendant had

squeezed the back of an infant's head, causing death. The jury could conclude

from this that either the defendant knew that his action might cause death,

or he did not know. The Court noted that the evidence only circumstantially

showed the defendant's mental state. Id. at 392. The opinion in Saunders alluded

to another case, Lugo v. State, 667 S.W. 2d 144 (Tex.Crim.App. 1984), in which

the Court held that an involuntary manslaughter charge should have been included

in that murder case. The evidence in Lugo showed that the defendant pointed

a loaded rifle at his wife, to persuade her to relinquish some car keys. The

Court noted that this evidence could have been interpreted to show that the

defendant intentionally pointed the rifle at his wife knowing it was loaded

and then intentionally shot her, or it could have been interpreted to show

that the defendant consciously disregarded a substantial risk.

                           The Court of Appeals Ignored Binding Precedent

     Given the evidentiary posture of the case, it is Petitioner's position

that the evidence raised more than a scintilla of an issue as to whether he


was guilty only of the lesser offense of Theft from an Elderly Person, and

the jury should have been given the option of convicting only for this lesser
offense. That required by the holdings of the Court of Criminal Appeals in

such cases as Hall, Sweed, and Bell, supra. The Court of Appeals therefore


                                                                                       13
misinterpreted or misapplied binding precedent in affirming Petitioner's conviction.

                          CONCLUSION AND PRAYER FOR RELIEF


     WHEREFORE, PREMISES CONSIDERED, Petitioner EDRICK DUNN,      prays that the

Court of Criminal Appeals grant his Petition for Discretionary Review, and

that after submission, this Court reverse the decision of the Court of Appeals

and remand the Cause.

                                                   Respectfully submitted,

                                                   Edrick Dunn, pro se
                                                   TDCJ #01896519
                                                   Eastham Unit
                                                   2665 Prison Road #1
                                                   Lovelady, TX 75851



              CERTIFICATE OF COMPLIANCE UITH T.R.A.P. 9.4(i)(2)(D)

     This is to certify that the length of the foregoing Petition for Discretionary

Review conforms with the Texas Rule of Appellant Procedure 9.4, in that the

brief, computer-generated, is 2,091 words, which is no longer than 4,500 words,

exclusive of the pages containing the identity of parties and counsel,       any

statement regarding oral argument, the table of contents, the index of authorities,

the statement of the case, the issue presented, the signature, and the proof

of service.
                                                       ^xeciXlKj^xy^
                                                 /s/   Edrick Dunn
                                                 EDRICK DUNN




                                                                                   14
                                    CERTIFICATE OF SERVICE


     This is to certify that a true and accurate copy of the above and forgoing
PETITION FOR DISCRETIONARY REVIEW was mailed to the Hon.Jeff Ford, attorney
for the State of Texas, at his office address of Office of the District
Attornet, PO Box 10536, Lubbock, TX 7940B-3536. It was also mailed to Hon.Lisa
McMinn, State Prosecuting Attorney, PO Box 12405, Austin, TX, 78711, both
being mailed on \s\o\Jemto''. 3 "TtV\   i201 5.


                                                                9djw^xJMMsyu
                                                             /s/ Edrick Dunn
                                                              EDRICK DUNN




                                                                                  15
APPENDIX




           16
                                    Court of gppeal*
                          »euent& JBtetrtct of {Kexa* at Amarillo

                                       No. 07-13-00378-CR



                                 EDRICK DUNN, APPELLANT

                                                 V.


                             THE STATE OF TEXAS, APPELLEE



                           On Appeal from the 140th District Court
                                    Lubbock County, Texas
              Trial Court No. 2011-432,529, Honorable Jim Bob Darnell, Presiding



                                          August 11, 2014

                               MEMORANDUM OPINION

                     Before QUINN, CJ., and HANCOCK and PIRTLE, JJ.


       Edrick Dunn appeals his conviction for the offense of aggravated robbery and

resulting sentence of fifty years confinement.1 By a single issue, he maintains the trial
court abused its discretion by rejecting his request for a lesser-included offense

instruction. We affirm.



        1 Tex. Penal Code Ann. § 29.03(a)(3)(A) (West 2011). An offense under this section is a felony
of the first degree. In addition to the primary offense, the jury also found the allegations of an
enhancement paragraph to be true.
      Background



      Appellant does not challenge the sufficiency of the evidence supporting his

conviction; therefore, we will recite only so much of the evidence as is necessary to an

understanding of the issue presented.      The criminal charges in question arose from

Appellant jerking a purse from the hands of a seventy year old woman as she walked to

a convenience store, thereby causing her to fall and sustain minor injuries. Testimony

and photographs admitted showed the victim sustained minor injuries, including small

abrasions to her right forearm, hand and finger. The victim also complained of injury to

her knees and feet. Immediately following the incident, the victim was offered medical

attention, but she turned it down. The next day she went to a doctor, who removed

three moles from her neck that had been scraped when the purse was pulled away.


      At the conclusion of the guilt-innocence phase of trial, Appellant requested the

inclusion of an instruction on the lesser-included offense of theft of an elderly person.

The trial court denied the request, and that denial forms the basis of this appeal.


       Lesser-Included Offense



       In determining whether a trial court erred in denying a request for a lesser-

included offense instruction we apply a two-step analysis. Hall v. State, 225 S.W.3d

524, 535-36 (Tex. Crim. App. 2007). First, we must determine if the proof necessary to

establish the charged offense also includes the lesser offense. Cavazos v. State, 382

S.W.3d 377, 383 (Tex. Crim. App. 2012). Ifthis threshold is met, we must then consider

whether the evidence shows that if Appellant is guilty, he is guilty only of the lesser

offense. Id.
       Here, the indictment upon which Appellant was tried averred that he:

       on or about the 7th day of September, A.D. 2011, did then and there,
       while in the course of committing theft of property and with intent to obtain
       or maintain control of said property, intentionally, knowingly, or recklessly
       cause bodily injury to [victim], a person 65 years of age or older, by
       causing the said [victim] to fall and strike the ground ....


       This language generally tracks the offense of aggravated robbery found under

section 29.03(a)(3)(A) of the Texas Penal Code.                   See Tex. Penal Code Ann.

§ 29.03(a)(3)(A) (West 2011) (stating that a person commits the offense of aggravated

robbery if, while in the course of committing theft, he intentionally, knowingly, or

recklessly causes bodily injury to a person who is sixty-five years of age or older).


       Appellant believes he was entitled to a lesser-included offense instruction

because testimony supplied by the victim "raised the question of whether the victim

suffered bodily injury or not."2 In other words, because some evidence indicated the
victim's injuries were minor, he contends there is evidence showing he is guilty of the

offense of theft of person, thereby warranting an instruction on that lesser-included

offense. See id. at § 31.03 (stating that a person commits the offense of theft if he

unlawfully appropriates property with intent to deprive the owner of that property).


       What Appellant is missing is evidence tending to show that if he is guilty of any

offense, he is only guilty of theft. He cites us to no evidence, and we have found none,

suggesting the victim suffered no bodily injury as a result of the offense or that Appellant

did not intend to cause bodily injury when he snatched her purse from her as she

walked down the street. And, given that there was no "evidence in the record that

       2"Bodily injury" means physical pain, illness, or any impairment of physical condition. See Tex.
Penal Code Ann. § 1.07(a)(8) (West Supp. 2014).
would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the

lesser-included offense," the trial court did not err in denying Appellant's requested

lesser-included offense instruction. Hall, 225 S.W.3d at 536 (quoting Bignall v. State,

887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). Simply put, Appellant failed to establish the

second prong of our two-step analysis. Accordingly, we overrule Appellant's issue.


       Conclusion



       The judgment of the trial court is affirmed.




                                                           Patrick A. Pirtle
                                                                Justice


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