                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-067-CR
                                  NO. 2-07-068-CR


RANDALL BROWN                                                        APPELLANT

                                              V.

THE STATE OF TEXAS                                                        STATE

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     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                    I. Introduction

      In his sole point, Appellant Randall Brown appeals the trial court’s refusal

to charge the jury on the lesser-included offense of theft. We affirm.




      1
          … See T EX. R. A PP. P. 47.4.
                      II. Factual and Procedural History

      On April 12, 2005, at approximately 3:00 p.m., Laverne Edwards, an

eighty-seven year old woman, was in her car, preparing to leave a Bank of

America in Fort Worth, Texas, when her driver’s side door flew open. Edwards

was then pushed in the face and pushed over in the driver’s seat. Appellant

then reached across Edwards and grabbed her purse.2           After grabbing

Edwards’s purse, Appellant turned and ran across a street and down an alley.

      As Dusty Cloud was turning into the Bank of America parking lot, he

testified that he saw Edwards lying on the parking lot and Appellant running

across the street, away from the bank. Cloud then rolled down his window,

and Edwards told him that a man had stolen her purse. Cloud began following

Appellant behind some buildings and saw Appellant stop in a nearby parking lot

between a dumpster and a green pickup truck. Two individuals, a man and a

woman, were in the truck.     Cloud called 9-1-1 to report the robbery and

provided the dispatcher with the truck’s location and license plate number.

      Cloud then watched Appellant get into the truck and began following the

truck, but he eventually lost sight of Appellant and went back to the bank to




      2
       … Edwards could not identify Appellant because she did not look at his
face during the robbery. At trial, however, Appellant was identified as the
robber by two other witnesses.

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check on Edwards. Cloud comforted Edwards, fixed her glasses, which had

been broken during the robbery, and cleaned up her wounds.

      After a ten-minute police chase, which consisted of police cars and the

police helicopter, Appellant crashed his truck in a ditch.        Appellant   was

arrested without further incident.

      Appellant was charged with the offenses of aggravated robbery of an

elderly person and evading arrest or detention. After Appellant pleaded not

guilty to both offenses, a jury found him guilty of both offenses and sentenced

him to thirty-five years’ confinement for the offense of aggravated robbery and

ten-years’ confinement for the offense of evading arrest, to run concurrently.

      Appellant does not raise any issues regarding his evading arrest

conviction. Accordingly, we affirm the trial court’s judgment regarding that

conviction.

                    III. Lesser-Included Offense Instruction

      In his sole point, Appellant argues that the trial court erred by refusing to

instruct the jury on the lesser-included offense of theft. The State asserts that

Appellant was not entitled to an instruction on theft because no evidence

presented at trial would allow a rational jury to convict Appellant only of the

lesser offense.




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                             A. Standard of Review

      We use a two-step analysis to determine whether an appellant was

entitled to a lesser-included offense instruction. Hall v. State, 225 S.W .3d

524, 528 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672-

73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. T EX.

C ODE C RIM. P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d

4, 8 (Tex. Crim. App. 1998).

      “An offense is a lesser-included offense if . . . it is established by proof

of the same or less than all the facts required to establish the commission of

the offense charged.” T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also Hall,

225 S.W .3d at 536. This inquiry is a question of law. Hall, 225 S.W.3d at

535. It does not depend on the evidence to be produced at the trial but is

performed by comparing the elements of the offense as they are alleged in the

indictment or information with the elements of the potential lesser-included

offense. Id. at 525, 535–36.

      Second, some evidence must exist in the record that would permit a jury

to rationally find that if the appellant 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

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must be evaluated in the context of the entire record. Moore, 969 S.W.2d at

8. There must be some evidence from which a rational jury could acquit the

appellant 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.

                               B. Applicable Law

      Section 29.02 of the Texas Penal Code states in relevant part that a

person commits the offense of robbery if “in the course of committing theft .

. . and with intent to obtain or maintain control of the property, he: (1)

intentionally, knowingly, or recklessly causes bodily injury to another.” T EX.

P ENAL C ODE A NN. § 29.02(a)(1) (Vernon 2003). Section 29.03 of the Texas

Penal Code defines aggravated robbery. Id. § 29.03. The statute provides in

relevant part that a person commits aggravated robbery when he commits

robbery and “causes bodily injury to another person or threatens or places

another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older[.]” Id. § 29.03(a)(3)(A).




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      Section 31.03 defines theft. T EX. P ENAL C ODE A NN. § 31.03(a) (Vernon

Supp. 2007).     A person commits the offense of theft “if he unlawfully

appropriates property with intent to deprive the owner of [the] property.” Id.

                                  C. Analysis

      Appellant was indicted for “intentionally or knowingly, while in the course

of committing theft of property . . ., caus[ing] bodily injury to Laverne Edwards,

a person 65 years of age or older, by striking her with his hand, or by squeezing

her with his hand, or by pushing her with his hand.” [Emphasis added.] The

first step of the test is therefore satisfied because theft is a lesser-included

offense of aggravated robbery. See Jones v. State, No. 07-06-0297-CR, 2007

WL 2915499, at *2 (Tex. App.—Amarillo Oct. 8, 2007, pet. ref’d) (citing Hall,

225 S.W.3d at 535).

      We now turn to an examination of the second step, that some evidence

exists in the record that would permit a jury to rationally find Appellant guilty

of only the lesser offense of theft. See Hall, 225 S.W.3d at 536. Appellant

argues that he was entitled to the lesser-included offense instruction because

Edwards testified that she was not injured during the course of the robbery,

except that her “face was cut.”       Additionally, Appellant points to a tape

recording on which Edwards allegedly gave a statement to the police that she




                                        6
was not injured to support his contention.3 Appellant argues that Edwards’s

testimony is more than a mere scintilla of evidence that she did not sustain

bodily injury and, therefore, the jury should have been instructed on the offense

of theft.

      Bodily injury is defined as “physical pain, illness, or any impairment of

physical condition.” T EX. P ENAL C ODE A NN. § 1.07(8) (Vernon Supp. 2007).

The Texas Court of Criminal Appeals has broadly interpreted the definition of

bodily injury to include “even relatively minor physical contacts so long as they

constitute more than mere offensive touching.” Lane v. State, 763 S.W.2d

785, 786 (Tex. Crim. App. 1989) (holding that evidence was “sufficient to

establish the element of bodily injury when a complainant testified she suffered

physical pain when the defendant grabbed her briefcase and twisted her arm

back, causing her to sustain a small bruise during the struggle”); see also Lewis

v. State, 530 S.W.2d 117, 118 (Tex. Crim. App. 1975) (rejecting appellant’s

assertion that greater injuries than those actually suffered were necessary to

elevate mere “purse snatching” to robbery). Additionally, a fact finder may

infer that a victim suffered pain from the existence of a cut, bruise, or scrape




      3
       … The audiotape was played for the jury, but it was not transcribed for
the record nor was it admitted as an exhibit. Accordingly, the audiotape is not
before us.

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on the victim’s body. Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.—El

Paso 2002, no pet.).

      Here, there is nothing in the record that shows that Edwards was not

struck in the face. In fact, the record is abounding with evidence that she was

struck in the face. To begin with, Edwards testified that when the robber

pushed her in the face, he broke the skin on her face, and she suffered bruising.

Additionally, the record contains four photographs showing the cut and bruising

underneath Edwards’s right eye. In his brief, Appellant even acknowledges that

Edwards was struck across the face. Further, there is no evidence in the record

that the cut and bruising were the result of Edwards not being struck during the

robbery. Thus, because there is evidence that Edwards was struck in the face

and suffered a cut underneath her right eye, the jury could infer that she

suffered pain. See id.

      Because there is no evidence that Edwards was struck in the face except

for during the robbery, there is nothing in the record that would permit a jury

to rationally find that if Appellant was guilty, he was only guilty of theft. See

Hall, 225 S.W.3d at 536. Therefore, because there is no evidence to show

that Appellant was guilty only of theft, he was not entitled to a lesser-included

offense instruction. See Lofton, 45 S.W.3d at 652. Accordingly, we overrule

Appellant’s sole point.

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                              IV. Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgments.

                                        PER CURIAM

PANEL M: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 29, 2008




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