Opinion issued December 11, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-18-00318-CR
                            ———————————
                 MATTHEW LYNN HAIRGROVE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 248th District Court
                            Harris County, Texas
                        Trial Court Case No. 1556769

                        MEMORANDUM OPINION

      Appellant, Matthew Lynn Hairgrove, was indicted for the felony offense of

aggravated robbery. The jury found appellant guilty of the lesser-included offense

of aggravated assault and, after finding the enhancement allegation true, assessed his

punishment at fifteen years’ confinement. In two points of error, appellant contends
that the trial court erred in denying his request to submit instructions to the jury on

the lesser-included offenses of robbery and misdemeanor assault. We affirm.

                                    Background

      On June 17, 2017, Christian Bankhead, his girlfriend, Keeley Price, Keeley’s

mother, Melissa Price, and appellant, Melissa’s boyfriend, traveled to Marshall,

Texas, to visit Melissa’s mother, who had been ill. Melissa drove, appellant sat in

the passenger seat, Christian sat in the rear driver’s seat behind Melissa, and Keeley

sat in the rear middle seat next to Christian. During the trip, Christian noticed that

appellant had a baseball bat on his lap, and that he was carving it with a knife.

      The next day, on their way back to Houston, they stopped at appellant’s

father’s house in Henderson, Texas. While appellant and Melissa visited with

appellant’s father, Christian and Keeley remained in the car. When appellant and

Melissa returned to the car, Christian noticed that appellant was carrying a long gun

bag containing what was later identified as a shotgun. Appellant got into the car and

placed the gun bag next to him. When Christian asked appellant why he had a

shotgun, appellant “said something about dove hunting or bird hunting[.]”

      Back in Houston, appellant and Melissa dropped Keeley off at her father’s

house before taking Christian home. Christian thought it was “weird” because his

home was closer than Keeley’s father’s house, but he “just brushed it off.” Christian

testified that, after they left Keeley, Melissa continued driving and talked with

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appellant when they suddenly said, “right now,” and Melissa slammed on the brakes.

Appellant, who was sitting in the passenger seat, turned around and started

“throwing punches” at Christian. Appellant punched Christian from his waistline to

the top of his head, with the punches landing mainly on his arms and his head.

Christian testified that when appellant punched him, it felt like a “metal bar” or a

“metal pole” had struck him. Christian saw that appellant had silver-colored brass

knuckles on his hand.

      Christian began punching appellant back. When he did, appellant picked up

the bat. Due to the confined space in the car, appellant was unable to swing the bat

but he hit and jabbed Christian in the head and the arms with the bat in a “spear

fish[ing]” motion. Christian testified that he pressed himself against the car door in

an effort to take the blunt force of the bat with his arms.

      When appellant stopped striking him with the bat, Christian tried to escape

but was unable to open the door. Christian testified that when he turned around

again, appellant pointed a shotgun in his face. Appellant then hit Christian on the

right side of his face with the shotgun, told Christian that he was going to “smoke”

him, and cocked the shotgun. Christian testified that, while he was being struck with

the brass knuckles, the bat, and the shotgun, he thought he was going to die. Melissa

then grabbed the shotgun and she and appellant began yelling at each other.




                                           3
      Appellant then demanded Christian’s phone. When Christian told him that it

was in his backpack, appellant grabbed the backpack and threw it on the passenger

side front floorboard. While pointing the shotgun in Christian’s face, he ordered

Christian to remove his shirt and pants and to get out of the car. When Christian was

unable to exit the car, appellant got out, opened Christian’s door, and yanked him

out of the car. Appellant told Christian that if he told anyone what had happened,

appellant would come back and “smoke” Christian and his father. Appellant got

back into the car and Melissa “floored it” and drove away. Christian walked to his

father’s house, and his father called the police.

      As a result of the attack, Christian sustained a large gash to his head, a

laceration to his hand and one to his ear where his earring had been ripped out, and

bruises to his chest and neck. Emergency medical personnel evaluated Christian’s

injuries and told him that although he “could have used stitches” for the gash on his

head, they were unable to apply them because the injury was a tear rather than a cut.

When Officer Michael Turner with the Pasadena Police Department arrived, he

observed that Christian was covered in blood “pretty much head to toe . . . on his

face, head, arms and legs, chest, [and] torso.” Detective Wright, a sixteen-year

veteran of the Pasadena Police department, testified that a baseball bat is not

designed to be a deadly weapon but that, based on her experience, “[a]ll it takes is a

strike in the right place in the head to kill a person with a baseball bat.”

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      Keeley testified that she noticed that appellant was carrying a shotgun as they

left appellant’s father’s house to drive back to Houston. Keeley further testified that

she thought it was “a little weird” that her mother and appellant decided to drop

Keeley off first before Christian because “normally when [she] bring[s] someone

they get dropped off first[.]” Later that night, Christian’s father called Keeley and

told her what had happened.

      Bobby Hairgrove, appellant’s father, testified that he owns five shotguns, he

keeps them in a locked safe in his house, and it would not have been possible for

appellant to take a shotgun from his home. He testified that he walked appellant and

Melissa to the car after their visit and that he would have seen a shotgun if appellant

had taken one with him.

      Toward the end of trial, trial counsel requested that the jury be instructed on

the lesser offenses of aggravated assault, robbery, and Class A misdemeanor assault.

The trial court instructed the jury on the charged offense of aggravated robbery and

the lesser-included offense of aggravated assault, but it denied the requested

instructions on robbery and misdemeanor assault. The jury found appellant guilty

of the lesser-included offense of aggravated assault and assessed his punishment at

fifteen years’ confinement.




                                          5
                                      Discussion

      In his first and second points of error, appellant contends that the trial court

erred in denying his request to submit instructions to the jury on the lesser-included

offenses of robbery and Class A misdemeanor assault.

   A. Standard of Review and Applicable Law

      Article 37.08 of the Texas Code of Criminal Procedure provides that “[i]n a

prosecution for an offense with lesser included offenses, the jury may find the

defendant not guilty of the greater offense, but guilty of any lesser included offense.”

TEX. CODE CRIM. PROC. ANN. art. 37.08. We apply a two-step analysis to determine

whether an instruction on a lesser-included offense should be included in the jury

charge. See State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall v.

State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007).

      First, we compare the elements of the offense as charged in the indictment

with the elements of the asserted lesser-included offense. See Meru, 414 S.W.3d at

162; Hall, 225 S.W.3d at 535–36. This step is a question of law and does not depend

on evidence adduced at trial. See Hall, 225 S.W.3d at 535. An offense is a

lesser-included offense of the charged offense if the indictment for the

greater-inclusive 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. See TEX. CODE CRIM. PROC. ANN. art.

                                           6
37.09(1). If the elements of the lesser-included offense can be deduced from facts

alleged in the indictment, they need not be pled in the indictment. See Ex parte

Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (per curiam).

      If the analysis under the first step supports a determination that the requested

lesser offense is a lesser-included offense, then we consider “whether a rational jury

could find that, if the defendant is guilty, he is guilty only of the lesser offense.”

Meru, 414 S.W.3d at 162–63. “[A]nything more than a scintilla of evidence may be

sufficient to entitle a defendant to a charge on a lesser offense.” Cavazos v. State,

382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (citing Hall, 223 S.W.3d at 536).

However, “the evidence produced must be sufficient to establish the lesser-included

offense as a ‘valid, rational alternative’ to the charged offense.” Id. (quoting Hall,

225 S.W.3d at 536). “While it is true that the evidence may be weak or contradicted,

the evidence must still be directly germane to the lesser-included offense and must

rise to a level that a rational jury could find that if [the defendant] is guilty, he is

guilty only of the lesser-included offense.” Id. “Meeting this threshold 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.” Id.

      A person commits robbery “if, in the course of committing theft . . . and with

intent to obtain or maintain control of the property, he . . . intentionally, knowingly,

or recklessly causes bodily injury to another.” TEX. PENAL CODE ANN. § 29.02(a)(1).

                                           7
A person commits aggravated robbery “if he commits robbery . . . and he uses or

exhibits a deadly weapon[.]” Id. § 29.03(a)(2). A person commits assault if he

“intentionally, knowingly, or recklessly causes bodily injury to another[.]” Id. §

22.01(a)(1). A person commits aggravated assault if the person commits assault and

“uses or exhibits a deadly weapon during the commission of the assault.” Id. §

22.02(a)(2).

      “Deadly weapon” means “a firearm or anything manifestly designed, made,

or adapted for the purpose of inflicting death or serious bodily injury . . . or anything

that in the manner of its use or intended use is capable of causing death or serious

bodily injury.” Id. § 1.07(17). Factors that a jury may consider in determining

whether an object is a deadly weapon under this second definition include (1) words

of the accused; (2) the intended use of the weapon; (3) the size and shape of the

weapon; (4) testimony by the victim that he feared death or serious bodily injury;

(5) the severity of any wounds inflicted; (6) the manner in which the assailant

allegedly used the object; (7) physical proximity of the parties; and (8) testimony as

to the weapon's potential for causing death or serious bodily injury. See Romero v.

State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).

“Serious bodily injury” means “bodily injury that creates a substantial risk of death

or that causes death, serious permanent disfigurement, or protracted loss or




                                           8
impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46) (West

2014).

      Texas courts have concluded that brass knuckles and baseball bats, like any

object, may constitute deadly weapons where the evidence shows that the object was

used in a manner capable of causing serious injury or death. See, e.g., Babcock v.

State, 501 S.W.3d 651, 655 (Tex. App.—Eastland 2016, pet. ref’d) (concluding

rational jury could have found that tree branch was deadly weapon because evidence

indicated that branch was two to three feet long, defendant swung it as he ran toward

complainant, and that if complainant had been hit with branch, he would have been

knocked unconscious and probably killed); English v. State, 171 S.W.3d 625, 628

(Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding evidence was sufficient to

support conclusion that baseball bat constituted deadly weapon where defendant

swung bat at victim’s head with full force, and resulting blow to victim’s head caused

large gash and concussion, and defendant told victim he intended to kill him); see

also White v. State, No. 01-12-00087-CR, 2013 WL 4210827, at *17 (Tex. App.—

Fort Worth Aug. 15, 2013, no pet.) (mem. op., not designated for publication)

(concluding jury could have found that homemade spear, composed of staple and

paper, was deadly weapon where evidence showed defendant used it to jab

correctional officer in cheek because evidence showed object was capable of

puncturing skin and causing injury, from damage to unprotected eye to infection

                                          9
with terminal disease); Chambers v. State, No. 05-92-00547-CR, 1993 WL 25375,

at *2–3 (Tex. App.—Dallas Jan. 29, 1993, pet. ref’d) (per curiam) (not designated

for publication) (concluding evidence was sufficient to permit rational trier of fact

to find that brass knuckles used by defendant constituted deadly weapon where

defendant hit complainant in mouth with brass knuckles, complainant sustained split

lip, and paramedics recommended that complainant receive stiches on his lip). “The

State need not establish that the use or intended use of an implement actually caused

death or serious bodily injury; only that ‘the manner’ in which it was either used or

intended to be used was ‘capable’ of causing death or serious bodily injury.” Moore

v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017) (emphasis in original).

   B. Analysis

      The indictment alleged that appellant

      on or about JUNE 18, 2017, did then and there unlawfully, while in the
      course of committing theft of property owned by Christian Bankhead,
      and with intent to obtain and maintain control of the property,
      intentionally and knowingly cause bodily injury to Christian Bankhead,
      and [appellant] did then and there use and exhibit a deadly weapon,
      namely, a shotgun, a bat and brass knuckles.

The charged offense was aggravated robbery, the trial court instructed the jury on

the lesser-included offense of aggravated assault, and the jury found appellant guilty

of aggravated assault.

      Assault is a lesser-included offense of robbery. To prove assault, the State

must prove that the defendant “intentionally, knowingly, or recklessly cause[d]
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bodily injury to another[.]” TEX. PENAL CODE §22.01(a)(1). To prove robbery, the

State must prove that the defendant, “in the course of committing theft . . . and with

intent to obtain or maintain control of the property, . . . intentionally, knowingly, or

recklessly cause[d] bodily injury to another[.]” Id. § 29.02(a)(1). To prove either

aggravated assault or aggravated robbery, the State had to prove the underlying

offense plus the use or exhibition of a deadly weapon. See id. §§ 22.02(a)(2),

29.03(a)(2).

      As alleged in the indictment, the only distinction between the offenses of

aggravated robbery and robbery and between the offenses of aggravated assault and

misdemeanor assault, is appellant’s use and exhibition of a deadly weapon. The

State acknowledges that, as alleged in the indictment, the offenses of robbery,

aggravated assault, and misdemeanor assault constitute lesser offenses of aggravated

robbery.

      We must now determine whether a rational jury could find that, if appellant is

guilty, he is guilty only of the lesser offense of robbery or the lesser offense of

misdemeanor assault. To be entitled to an instruction on robbery or misdemeanor

assault, the record must contain some affirmative evidence that would have

permitted a rational jury to find the underlying offense (robbery or assault) and also

that appellant did not exhibit and use a deadly weapon in committing the attack, as

required for both aggravated robbery and aggravated assault. Specifically, there

                                          11
must be affirmative evidence either that appellant had no weapon or that he did not

use the shotgun, the bat, or the brass knuckles in a manner capable of causing serious

bodily injury or death. See Cavazos, 382 S.W.3d at 385.

      Appellant argues that, while a shotgun is a deadly weapon per se, there is

affirmative evidence showing that appellant did not have a shotgun. In support of

his argument, appellant points to his father’s testimony that appellant did not take a

shotgun from his house, it was not possible for appellant to have snuck a shotgun

out of his house, and he did not notice a shotgun in the car. Appellant’s father’s

testimony is some evidence that appellant did not have a shotgun. See id.

      Appellant also argues that Christian’s testimony raised serious doubts about

whether the baseball bat and brass knuckles constituted deadly weapons—that is,

whether they were “capable of causing death or serious bodily injury” in the manner

of their use or intended use during the assault. In this regard, appellant points to the

evidence showing that (1) the assault occurred in a car and therefore appellant was

prevented from swinging the bat and, instead, only jabbed at Christian as if “spear

fishing”; (2) emergency medical personnel did not treat Christian’s injuries, he

received no stitches, no medical records were admitted at trial, and Keeley testified

that the only injuries she observed the day after the assault were “little scrapes and

bruises.”




                                          12
      While the evidence showed that the assault took place in a confined space

which prevented appellant from swinging the bat, it also showed that Christian was

in close physical proximity to appellant and had little opportunity to defend himself

against being struck by the bat. The jury heard evidence that appellant repeatedly

jabbed at Christian’s head and arms with the bat, that Christian had to press himself

against the car door in an attempt to take the blunt force with his arms, that when he

attempted to flee the car he could not open the door, and that he thought he was

going to die. See Romero, 331 S.W.3d at 83 (noting jury may consider, among other

factors, victim’s testimony that he feared death or serious bodily injury and physical

proximity of parties in determining whether object is deadly weapon). Detective

Wright, a sixteen-year veteran of the Pasadena Police Department, testified that a

baseball bat is not designed to be a deadly weapon but that, based on her experience,

it could be used as one because “[a]ll it takes is a strike in the right place in the head

to kill a person with a baseball bat.” See id. (listing testimony regarding weapon’s

potential for causing death or serious bodily injury as another factor jury may

consider in deadly weapon determination).

      With regard to appellant’s assertion that Christian did not sustain serious

injuries, the State only needed to prove that the manner in which appellant used or

intended to use the brass knuckles and baseball bat was capable of causing death or

serious bodily injury. See Moore, 520 S.W.3d at 908. The jury heard evidence that

                                           13
appellant repeatedly punched Christian with the brass knuckles from his waistline to

the top of his head. Christian testified that, when appellant struck him with the

knuckles, he felt as if he had been hit with a “metal bar” or “metal pole.” At the time

of trial, Christian still bore a scar on his hand where appellant had struck him with

the knuckles. Photos admitted at trial showed that Christian sustained a gash to the

top of his head, a laceration on his hand, a laceration on his ear where his earring

was ripped out and bruising to his chest and neck. Emergency medical personnel

evaluated Christian’s injuries and told him that although he “could have used

stitches” for the gash on his head, stiches were not an option because the injury was

a tear rather than a cut. Officer Turner testified that when he made contact with

Christian, he was “covered in blood . . . pretty much head to toe . . . on his face, head,

arms and legs, chest, [and] torso.” Here, appellant’s use of brass knuckles and a

baseball bat could have resulted in striking Christian in the eye, temple, or other area

of the head that could have resulted in a serious or fatal head or eye injury. See id.

      The evidence established that in the manner in which appellant used or

intended to use the knuckles and baseball bat—by punching Christian in the head

and by striking, jabbing, and spearing him in the head—both weapons were capable

of causing death or serious bodily injury. There was no affirmative and directly

germane evidence from which a rational jury could have found that if appellant was

guilty, he was guilty only of either the lesser offense of robbery or the lesser offense

                                           14
of misdemeanor assault. See Cavazos, 382 S.W.3d at 385. Therefore, appellant was

not entitled to instructions on these offenses, and the trial court did not err in refusing

to submit these instructions to the jury. See Barnett v. State, 344 S.W.3d 6, 16 (Tex.

App.—Texarkana 2011, pet. ref’d) (finding no evidence from which rational jury

could convict defendant of lesser-included offense of assault, instead of aggravated

assault, where evidence did not negate allegation that defendant used deadly weapon

during assault); see also Mass v. State, No. 01-12-01004-CR, 2014 WL 298439, at

*5 (Tex. App.—Houston [1st Dist.] Jan. 28, 2014, no pet.) (mem. op., not designated

for publication) (holding trial court did not err in refusing to instruct jury on lesser

offense of misdemeanor assault, in defendant’s trial for aggravated robbery, where

record did not contain affirmative evidence that would have permitted rational jury

to find that defendant did not use deadly weapon in committing assault).

       Accordingly, we overrule appellant’s first and second points of error.

                                       Conclusion

       We affirm the trial court’s judgment.




                                                 Russell Lloyd
                                                 Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).
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