
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-07-00739-CR


Calvin Hights, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT

NO. 2007-244, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N

A jury found appellant Calvin Hights guilty of two counts of aggravated assault with
a deadly weapon and assessed punishment for each count at seventeen years' imprisonment.  In a
single ground of review, appellant contends that the trial court erred by refusing to instruct the
jury on simple assault as a lesser included offense.  We will overrule this contention and affirm
the judgments.
The first complainant, Selena Hendricks, testified that she went to appellant's
residence, where she had been living, to retrieve her belongings.  Before she could leave, appellant
seized her outside the house, and they began to struggle.  Hendricks testified that during this
altercation, appellant grabbed her from behind and produced a knife.  She testified that appellant held
the knife in front of her, with the blade pointed at her as if he were going to stab her.  Hendricks
testified that she "felt like I was about to die or get stabbed, at least.  I was scared for my life."
The second complainant, Israel Zapien, testified that he happened upon the scene and
saw appellant "try[ing] to kill" Hendricks with the knife.  Zapien struck appellant's face with his fist,
which caused appellant to release Hendricks.  Zapien testified that appellant then swung at him with
the knife, and he had to jump away to avoid being cut.
The State's other witnesses were police officers involved in the investigation of this
incident.  There were no defense witnesses.
The two counts of the indictment alleged that appellant threatened Hendricks and
Zapien with imminent bodily injury, and that he used a deadly weapon, the knife, while doing so.
See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (West Supp. 2008).  The court's charge
authorized appellant's conviction for aggravated assault in language tracking the indictment.  The
court denied appellant's request for an instruction authorizing his conviction for simple assault
by threat.
An instruction on a lesser included offense is required only if:  (1) the lesser offense
is included within the proof necessary to establish the greater offense for which he is on trial, and
(2) there is evidence that would permit the jury to rationally find that the defendant is guilty of the
lesser offense but not the greater offense.  Hampton v. State, 165 S.W.3d 691, 693-94 (Tex. Crim.
App. 2005); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).  There is no question
that the first requirement was satisfied in this case.  The question is whether the second requirement
was satisfied.
A defendant is not entitled to a lesser included offense instruction simply because
the jury might disbelieve crucial evidence pertaining to the greater offense.  Hampton v. State,
109 S.W.3d 437, 440 (Tex. Crim. App. 2003).  Instead, there must be some evidence directly
germane to the lesser included offense before an instruction on that offense is warranted.  Id.  This
means that appellant was entitled to the lesser included offense instruction only if there was some
evidence that he threatened Hendricks and Zapien with imminent bodily injury, but that he did not
use the knife as a deadly weapon while doing so.  Appellant concedes that there was not.
Appellant argues that the rule requiring some affirmative evidence that the defendant
is guilty only of the lesser included offense violates due process and the right to trial by jury.
Appellant draws our attention to defense counsel's jury argument, in which he challenged the
complainants' credibility and vigorously urged that there was no objective evidence that appellant
used a knife during the assault.  Appellant argues that the jury, as trier of fact, should have been
allowed to return a verdict reflecting a finding that he assaulted the complainants but did not use a
deadly weapon.
The court of criminal appeals has explained that the second prong of the predicate for
a lesser included offense instruction--which applies whether the instruction is requested by the
defendant or by the State--preserves the integrity of the jury as finder of fact by ensuring that the
jury is authorized to convict for a lesser included offense only when that offense is a valid, rational
alternative to the charged offense.  Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997). 
If the jury were instructed on a lesser included offense when the evidence did not raise it, the
instruction would invite the jury to return a compromise or otherwise unwarranted verdict.  Id. 
Given the evidence in this case, the only rational alternatives for the jury were to find that appellant
threatened the complainants with the knife or that appellant did not threaten them at all.
Appellant's argument is not really with the trial court, but with the court of criminal
appeals's precedent followed by the trial court.  As an intermediate appellate court, we are no more
permitted to disregard the controlling precedent of this State's highest criminal court than was the
trial court.  See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.--Austin 2006), aff'd, Colyandro
v. State, 233 S.W.3d 870, 885 (Tex. Crim. App. 2007).  If the rule governing a party's entitlement
to a lesser included offense instruction is to be changed, that decision must be made by the court of
criminal appeals.
Appellant's ground of review is overruled, and the judgments of conviction
are affirmed.


				__________________________________________
				W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Affirmed
Filed:   December 30, 2008
Do Not Publish
