                                 NO. 07-07-0209-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 MARCH 11, 2008
                         ______________________________

                                 TIMOTHY R. SMITH,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 99-430,861; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellant Timothy R. Smith challenges his conviction of assault on a public servant

by contending the trial court erred in failing to charge the jury on the lesser-included

offense of assault. We disagree and affirm the judgment.
        To be entitled to an instruction on a lesser-included offense, there must be evidence

illustrating that appellant only committed the lesser offense.1 Bignall v. State, 887 S.W.2d

21, 22 (Tex. Crim. App. 1994). Thus, appellant may be entitled to the charge by presenting

evidence which negates the element present in the greater but absent in the lesser

offense. Morris v. State, No. 07-99-0498-CR, 2000 Tex. App. LEXIS 7181 at *5 n.1 (Tex.

App.–Amarillo October 25, 2000, pet. ref’d) (not designated for publication).

        The State was required to prove that appellant intentionally, knowingly, or recklessly

caused bodily injury to “a person the actor [knew was] a public servant while the public

servant [was] lawfully discharging an official duty . . . .” TEX . PEN . CODE ANN . §22.01(a)(1)

& (b)(1) (Vernon Supp. 2007). The elements present in the greater offense that are

missing in the lesser are that appellant knew the person assaulted was a public servant

and that the assault occurred while the officer was lawfully discharging an official duty.

        Appellant argues that the police officer was not lawfully discharging his duties at the

time of the assault here at issue. This was purportedly so because he had no legitimate

basis to detain appellant. Yet, that an attempted stop occurs without probable cause or

reasonable suspicion is irrelevant in determining whether the officer was lawfully

discharging his duties. See Hughes v. State, 897 S.W.2d 285, 298 (Tex. Crim. App. 1994)

(holding that whether the officer’s stop of the defendant was constitutionally reasonable

was not relevant to whether the officer was lawfully discharging his duties); Tucker v.

State, 114 S.W.3d 718, 723 (Tex. App.–Corpus Christi 2003, pet. ref’d) (holding that



        1
         Misdem eanor assault is a lesser-included offense of assault of a public servant thus m eeting the first
prong of the Rousseau test. Hall v. State, 158 S.W .3d 470, 473 (Tex. Crim . App. 2005).

                                                       2
regardless of whether an arrest was lawful or unlawful, the deputy constable was in lawful

discharge of his duties when he attempted the arrest). Given this, the foundation to

appellant’s argument is missing.

      Appellant’s issue is overruled, and the judgment of the trial court is affirmed.



                                                Brian Quinn
                                                Chief Justice

Do not publish.




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