                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00039-CR


STEVEN DOUGLAS PRATT                                             APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     Appellant Steven Douglas Pratt appeals his conviction for felony assault2

on a family member by means of ―intentionally, knowingly, or recklessly



     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West 2011).
imped[ing] the normal breathing or circulation of the blood by applying pressure

to the throat or neck of Nikki Norman,‖ Pratt’s live-in girlfriend. In his sole issue,

Pratt argues that the trial court erred by denying his request that the jury charge

contain a lesser included offense instruction of misdemeanor assault.3 We will

affirm.

                                  II. BACKGROUND

      After having barricaded herself in her apartment’s bathroom on

November 11, 2011, at roughly 10:40 p.m., Norman called 9-1-1 to report a

―domestic dispute.‖ Through tears and labored breathing, Norman explained that

she was calling because Pratt had ―beat[en] [her] up.‖ Norman told the 9-1-1

operator that she was attempting to leave with her ―baby‖ but could not, and that

her mother, father, and brother had come to the apartment to help her leave but

that Pratt had ―attacked‖ her father and brother. When the 9-1-1 operator asked

her where her brother and father were at the time of her call, Norman explained

that they were ―in there trying to detain him because he’s going nuts.           He’s

drunk.‖

      According to his testimony at trial, City of Granbury Patrol Sergeant Alan

Hicks responded to the 9-1-1 dispatch regarding Norman’s call.            By Hicks’s

account, when he arrived at Pratt’s apartment, he first encountered three men,

one of them being Pratt. Hicks testified that Pratt had apparent injuries to his

      3
          See Tex. Penal Code Ann. § 22.01(a) (West 2011).



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face. Hicks averred that Pratt explained that Norman’s brother had assaulted

him. Hicks then talked with Norman and noticed that she had ―red marks on the

side of her face, and she had round red marks around her neck.‖ Hicks testified

that these injuries appeared ―fresh.‖        Pictures of Norman’s injuries were

published to the jury, and Hicks confirmed that the photos were taken shortly

after he arrived at the apartment. Upon further investigation, Hicks said that he

also discovered injuries to Norman’s chest. Hicks said that because Norman’s

account of the events was that Pratt had choked her and that his initial

investigation revealed injuries consistent with strangulation, coupled with Pratt’s

―angry [and] intoxicated‖ demeanor, he arrested Pratt that night and charged him

with ―assault family violence impede breathing [or] circulation.‖

      Officer Justin McGuire of the Granbury Police Department testified that he

also responded to the dispatch and that while at the apartment he also witnessed

redness and abrasions on Norman’s face and neck. McGuire testified that the

injuries were obvious and fresh. Hicks said that when he inquired of Norman

how she had been injured, Norman said that Pratt had ―choked her.‖ McGuire

further inquired whether Pratt’s actions had ―made it difficult for her to breathe.‖

Norman responded that it had.        McGuire also testified that the injuries on

Norman’s person were consistent with her having been choked.

      Norman testified that she lived with Pratt and their daughter in the

apartment. Norman explained that earlier that night she told Pratt that she was




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going to run an errand.     Pratt reacted by accusing her of adultery and she

testified that when she began to leave, Pratt hit her. According to Norman, Pratt

then ―got on top of [her] and started to choke‖ her.      Explaining the incident

further, Norman described how Pratt had ―put both of his hands around [her]

neck and started to squeeze [her] throat.‖ Norman stated that she ―could not

breathe.‖

      After breaking free, Norman said that she ran toward the kitchen, but that

Pratt ―pushed [her] again and got on top of [her] again, and -- with both hands‖

choked her. Norman said that Pratt’s conduct again caused her to lose her

ability to breathe for ―about 15 to 20 seconds.‖ When asked whether she said

anything to him during this time, Norman said ―No . . . I couldn’t speak.‖ Norman

testified that she feared that she might die. By Norman’s account, Pratt repeated

this behavior a third time: ―[H]e got right back on top of me and started to choke

me again.‖ Norman said that she was finally able to break free by kicking Pratt in

the genitals. From there she barricaded herself in the bathroom and called her

mother.     After Norman’s mother, father, and brother arrived, and after Pratt

allegedly assaulted her brother, Norman called 9-1-1.

      At the close of evidence, Pratt requested that the court’s charge include a

lesser included offense instruction, ―removing the impeding the circulation or

breath, and make it a simple family assault violence case.‖ The trial court denied




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this request. The jury found Pratt guilty and sentenced him to twenty years’

incarceration. This appeal followed.

                                  III. DISCUSSION

      In his sole issue, Pratt argues that the trial court erred by denying his

request that the jury charge include the lesser included offense of misdemeanor

assault. We disagree.

      A two-pronged test is used to determine whether a lesser included offense

must be included in the jury charge when requested. A charge on a lesser

included offense is required if (1) the lesser included offense is included within

the proof necessary to establish the charged offense and (2) there is some

evidence that would permit a rational jury to find that, if the accused is guilty, he

is guilty of only the lesser offense. Hall v. State, 225 S.W.3d 524, 526, 535 (Tex.

Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.

App.), cert. denied, 510 U.S. 919 (1993); Royster v. State, 622 S.W.2d 442, 446

(Tex. Crim. App. [Panel Op.] 1981) (plurality op. on reh’g); see Tex. Code Crim.

Proc. Ann. art. 37.09 (West 2006).

      With respect to the first prong, an offense is a lesser included offense of

another offense under Article 37.09(1) 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. Ex parte Watson, 306 S.W.3d 259, 273 (Tex.




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Crim. App. 2009). The resolution of the first prong is a question of law to be

determined by looking at the elements and facts alleged in the charging

instrument, not the evidence presented at trial. Hall, 225 S.W.3d at 535. The

State concedes that the first prong is satisfied in this case. See Tex. Penal Code

Ann. § 22.01.

      In connection with the second prong of the inquiry, some evidence must

exist in the record that would permit a jury to rationally find that if the accused is

guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v.

State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at

672–73. The evidence must be evaluated in the context of the entire record.

Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). There must be some

evidence from which a rational jury could acquit an accused of the greater

offense while convicting him of the lesser included offense. Id. The court may

not consider whether the evidence is credible, controverted, or in conflict with

other evidence. Id. Anything more than a scintilla of evidence may be sufficient

to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.

      Here, Pratt posits that ―a number of facts in the record . . . show much

more than just a scintilla of evidence‖ that he did not choke Norman. Specifically,

Pratt argues that because Norman did not seek medical attention on the night of

the assault; because she was able to break free from Pratt’s assailment; because

she was able to call her parents ―[i]mmediately after allegedly being choked;‖




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because she did not call the police until after her family arrived; and because she

did not take photographs of large bruises that Norman testified appeared on her

neck in the days following the incident, there exists more than a scintilla of

evidence that Pratt did not choke Norman. But as the State responds, none of

these points ―are directly germane to the issue‖ of whether Pratt was only guilty

of the lesser included offense of misdemeanor assault.

      Norman testified that Pratt repeatedly pushed her down and choked her.

She described to the jury how on three different occasions during the incident,

Pratt applied pressure to her neck using his hands to the point that she was

either unable to speak, unable to breathe, or barely capable of maintaining

consciousness. The pressure was repeated, continual, and forceful enough that

Norman testified that she thought that she might die. Two officers testified that

when they arrived at the apartment, Norman showed ―obvious‖ signs of trauma

from strangulation and that it appeared to both of them that her wounds were

―fresh.‖ Photographs depicting these injuries that were taken when police arrived

were published to the jury. Although affirmative evidence of the points Pratt now

propounds might have further strengthened the State’s case that Pratt impeded

Norman’s normal breathing or circulation by applying pressure to her throat or

neck, none of the points Pratt raises rationally support an inference that he did

not choke Norman and that he is guilty of only the lesser included offense of

misdemeanor assault requested by him. See Cavazos v. State, 382 S.W.3d 377,




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385 (Tex. Crim. App. 2012) (―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.‖). We overrule

Pratt’s sole issue.

                                IV. CONCLUSION

      Having overruled Pratt’s sole issue on appeal, we affirm the trial court’s

judgment.




                                                 BILL MEIER
                                                 JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 17, 2013




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