Affirmed and Memorandum Opinion filed January 23, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00614-CR

                      HERBERT GOLDSMITH, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 176th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1277685

                 MEMORANDUM                       OPINION


      Appellant Herbert Goldsmith was convicted of capital murder. In his first
two issues on appeal, appellant claims that the trial court erred when it admitted
evidence of appellant’s flight from the police because (1) the evidence was not
relevant and (2) the probative value of the evidence was substantially outweighed
by the danger of unfair prejudice. In his third and final issue, appellant claims that
the trial court erred when it refused to submit a jury instruction on the lesser-
included offense of aggravated assault. We affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was renting a house in northeast Houston, Harris County, Texas.
Appellant sublet the house to the complainant, Christopher Jones, and two of the
complainant’s friends, Pishon Scott and Arnoldo Gomez. The complainant, Scott,
and Gomez sold a variety of illegal narcotics from the location.

      On September 10, 2010, appellant, complainant, Scott, Gomez, and Gomez’s
sister were at the house. While appellant and the complainant were doing push-ups,
appellant received a phone call from Lance Burnley. Appellant invited Burnley to
the house to buy cocaine, knowing that Burnley had expressed a desire to rob the
complainant. Burnley and Gerald Porter, another of appellant’s associates, arrived
at the house shortly thereafter. Immediately after unlocking the front door for them
and inviting them into the house, appellant turned to the others, picked up his gun,
and said, ―You all know what it is.‖ Porter and Burnley followed appellant into the
house, and the three of them—appellant, Porter, and Burnley—opened fire.

      Gomez was shot nine times but survived. The complainant was shot four
times and died from his wounds. Gomez’s sister was not hurt. Scott managed to
escape the house without injury when he recognized that the attackers had left the
front door ajar and were not immediately concerned with him. After realizing that
Scott had fled, appellant chased him and fired several shots during the pursuit, but
Scott was not hit.

      Appellant remained at large for several days. On September 14, 2010, the
police determined that he was hiding at a motel with his girlfriend. The police
obtained an arrest warrant and began surveillance of the area around the motel.
Police officers involved in the surveillance operation decided to apprehend


                                         2
appellant when he and his girlfriend took an Oldsmobile Alero belonging to the
girlfriend’s mother to a nearby restaurant for breakfast. The police officers tried to
prevent appellant from leaving the parking lot by blocking the Alero with marked
police cruisers. Appellant avoided the barricade and led the police on a high-speed
chase during rush hour.

      The chase resulted in the destruction of two vehicles. Appellant first crashed
the Alero and tried to evade the police on foot. Appellant then stole a white Ford
Escort from a bystander at an auto mechanic’s shop and admitted to the bystander
that he had shot someone. He continued to flee in the Escort until he crashed it and
was finally arrested.

      Appellant was indicted for the capital murder of the complainant and was
convicted by a jury. Appellant timely appealed.

                                       DISCUSSION

I.    Evidence of Flight, Relevance

      In his first issue, appellant argues that the trial court erred when it admitted
the evidence of flight because his flight was unrelated to the crime charged and
therefore irrelevant. We disagree.

      We review the admission of evidence for an abuse of discretion and will
uphold the trial court’s ruling if it was within the zone of reasonable disagreement.
Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). ―All relevant
evidence is admissible, except as otherwise provided by Constitution, by statute,
by these rules, or by other rules prescribed pursuant to statutory authority.‖ Tex. R.
Evid. 402. Evidence of flight or escape is relevant as a circumstance from which an
inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim.
App. 1994); Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979);

                                          3
Morales v. State, 389 S.W.3d 915, 922 (Tex. App.—Houston [14th Dist.] 2013, no
pet.); Williams v. State, 832 S.W.2d 152, 154 (Tex. App.—Houston [14th Dist.]
1992, pet. ref’d). Courts apply a two-step process when determining whether
evidence of flight is admissible. First, the proponent must establish that the flight
evidence is relevant to the crime under prosecution. Bigby, 892 S.W.2d at 883; see,
e.g., Burks v. State, 876 S.W.2d 877, 903–04 (Tex. Crim. App. 1994) (flight
evidence was relevant when an arrest warrant for the offense under prosecution
had been issued, defendant had already fled after committing the offense, and the
police clearly identified themselves). Second, the defendant can have the evidence
excluded by showing that the flight was unrelated to the charged offense. See
Burks, 876 S.W.2d at 903. To accomplish this, the defendant must demonstrate (1)
that his flight was directly connected to some other transaction and (2) that it was
not connected to the offense at trial. Bigby, 892 S.W.2d at 883.

      In this case, the State has established that the flight evidence is relevant to
the capital murder. Appellant admitted to going on the run after the shooting. The
police had a warrant to arrest appellant for capital murder. When the police tried to
arrest appellant in a parking lot using marked vehicles, he led them on a high-speed
chase. During the chase, appellant carjacked a bystander and admitted during the
course of the carjacking that he had shot someone. This evidence is relevant to
show appellant’s consciousness of guilt. See Burks v. State, 227 S.W.3d 138, 148–
49 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

      Appellant argues, however, that he was not running because of the murder.
Instead, appellant claims that he simply ―continued running‖ from offenses
unrelated to the murder. It is true that appellant failed to appear in Harris County
court on charges of both forgery and discharge of a firearm in a metropolitan area
and that he left Louisiana after being involved in the burglary of a pharmacy.

                                         4
Although these incidents are evidence that appellant’s flight was related to some
other transaction, he did not present evidence that his flight was not connected to
the capital murder. He has therefore failed to meet his burden to exclude the
evidence of flight on relevance grounds, and we cannot say that the trial court
abused its discretion. We overrule appellant’s first issue.

II.    Evidence of Flight, Rule 403 Balancing

      In his second issue, appellant argues that even if the flight evidence was
deemed relevant, the evidence was inadmissible because its probative value was
substantially outweighed by the danger of unfair prejudice and confusion of the
issues. We disagree.

      A party can have relevant evidence excluded if its probative value is
substantially outweighed by the danger of unfair prejudice or confusion of the
issues. Tex. R. Evid. 403. ―Probative value‖ refers to the ―inherent probative force
of an item of evidence—that is, how strongly it serves to make more or less
probable the existence of a fact of consequence to the litigation—coupled with the
proponent’s need for that item of evidence.‖ Casey v. State, 215 S.W.3d 870, 879
(Tex. Crim. App. 2007). ―Unfair prejudice refers to an undue tendency to suggest
decision on an improper basis, commonly . . . an emotional one.‖ Ex parte Rogers,
369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (internal quotation marks omitted).

      We review the trial court’s ruling for an abuse of discretion, and we should
not reverse the trial court on a rule 403 basis if the ruling is within a zone of
reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1990); see Bigby, 892 S.W.2d at 883. In reviewing the trial court’s decision
to admit the evidence of flight, we should look at (1) the strength of the
proponent’s other evidence tending to show that the defendant committed the
crime, taking into account the defendant’s affirmative defenses; (2) the potential
                                           5
for the evidence to impress the jury in some irrational but indelible way; (3) the
proponent’s need for the evidence; and (4) in determining the prejudicial effect of
the evidence, the time needed to present the evidence. See Bigby, 892 S.W.2d at
883–84; Dade v. State, 956 S.W.2d 75, 80 (Tex. App.—Tyler 1997, pet. ref’d). If
the flight evidence enhances the State’s case, the trial court’s ruling is probably
within the zone of reasonable disagreement. See, e.g., Bigby, 892 S.W.2d at 884
(trial court’s ruling was within the zone of reasonable disagreement because
evidence that defendant—who had pled insanity and did little to contest his guilt—
threatened the trial judge with a gun and attempted to flee was highly probative of
defendant’s guilt and enhanced the state’s case).

      We must first determine whether the evidence of flight has probative value;
that is, whether the evidence of flight makes it more or less probable that appellant
murdered the complainant. Appellant admitted to fleeing after the murder.
Beginning at a Denny’s parking lot near his motel hideout, appellant led the police
on a high-speed chase. During the course of the chase, appellant entered an auto-
mechanic’s shop, brandished his gun, and stole a Ford Escort. The victim of the
theft testified that appellant ―said he shot someone and he needed a car.‖ The
evidence of flight in this case is probative of appellant’s consciousness of guilt and
enhanced the State’s case.

      We now apply the factors listed above to determine whether the probative
value is substantially outweighed by the danger of unfair prejudice. With regard to
factor (1), the State presented other strong evidence against appellant. Specifically,
Scott, an eyewitness who was at the house during the shooting, testified that
appellant shot the complainant. Additionally, the State’s ballistics analyst testified
that the identifiable bullets recovered from the complainant’s body were
―consistent with the .40 caliber family,‖ and another eyewitness testified that

                                          6
appellant typically carried a .40 or .45 caliber gun.

      With regard to factor (2), the evidence of flight did not have a tendency to
influence the jury in an indelible or irrational way when compared with other
evidence presented by the State. See, e.g., Sanders v. State, 255 S.W.3d 754, 761
(Tex. App.—Fort Worth 2008, pet. ref’d) (testimony about a third party’s sexual
assault of the victim was not unfairly prejudicial when compared with testimony
about defendant’s repeated sexual assaults). For instance, the jury saw photographs
of the victim’s autopsy, including close-ups of the gunshot wounds. The jury heard
testimony about the effect the bullets would have had on the complainant’s internal
organs. In comparison to the inherently graphic testimony given by the medical
examiner, we think that the evidence of flight had little tendency to influence the
jury in an irrational way.

      With regard to factor (3), the State needed to introduce the evidence of
flight. As a general rule, ―the State is entitled to show circumstances surrounding
arrest.‖ Cantrell v. State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987) (quoting
Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985)); e.g., Burks, 227
S.W.3d at 148–49 (evidence of defendant’s flight was admissible to show
consciousness of guilt when defendant fled from officer who was wearing a jacket
marked ―POLICE‖ and defendant was aware of the officer’s motive to arrest him).
Not only does the evidence of flight in this case show appellant’s consciousness of
guilt and the circumstances of his arrest, it led to the discovery of, and provided a
foundation for admitting, other items of evidence, such as weapons, bullets, and
drugs, which were used at trial. Additionally, we note that the trial court gave the
jury a limiting instruction regarding the extraneous offenses that appellant
committed during the course of his flight.



                                           7
       Finally, with regard to factor (4), the State did not need an excessive amount
of time to present the evidence of flight. We examined an eighteen volume
reporter’s record containing a transcription of over 3,000 pages of testimony,
motion practice, argument, and evidence. The presentation of the evidence of flight
occupied only a small fraction of that record.

       After reviewing the facts and applying the factors noted above, we conclude
that the trial court did not abuse its discretion in concluding that the danger of
unfair prejudice did not substantially outweigh the probative value of the evidence
of flight. Appellant’s second issue is overruled.

III.   Lesser-Included Offense Jury Instruction

       In his third issue, appellant argues that the trial court erred when it refused to
submit a jury instruction on the lesser-included offense of aggravated assault. The
State, on the other hand, argues that appellant waived his objection because
appellant (1) did not properly dictate his request to the trial court, (2) did not
adequately specify the nature of the underlying assault in his request, and (3) did
not properly comport his argument at trial with his argument on appeal. We
assume, without deciding, that appellant preserved error and conclude that because
aggravated assault is not a lesser-included offense to the capital murder in this
case, appellant was not entitled to a jury instruction on aggravated assault.

       Whether aggravated assault is a lesser-included offense to capital murder is
determined by applying article 37.09 of the Code of Criminal Procedure, which
provides:

       An offense is a lesser included offense if:
       (1) it is established by proof of the same or less than all the facts
       required to establish the commission of the offense charged;
       (2) it differs from the offense charged only in the respect that a less

                                            8
      serious injury or risk of injury to the same person, property, or public
      interest suffices to establish its commission;
      (3) it differs from the offense charged only in the respect that a less
      culpable mental state suffices to establish its commission; or
      (4) it consists of an attempt to commit the offense charged or an
      otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006). Although aggravated assault
can be a lesser-included offense to capital murder under certain circumstances, we
must apply a two-step analysis to determine whether the trial court erred in
refusing to submit a jury instruction on a lesser-included offense. Segundo v. State,
270 S.W.3d 79, 90 (Tex. Crim. App. 2008); Cannon v. State, 401 S.W.3d 907, 910
(Tex. App—Houston [14th Dist.] 2013, pet. ref’d); see Cardenas v. State, 30
S.W.3d 384, 392 (Tex. Crim. App. 2000) (acknowledging aggravated assault as a
potential lesser-included offense to capital murder). First, we compare the elements
of the greater offense as pleaded in the indictment with the statutory elements of
the lesser offense to determine whether the lesser offense is actually a lesser-
included offense. Segundo, 270 S.W.3d at 90. If the elements of the lesser offense
cannot be established by proof of the same or less than all the facts required to
establish the commission of the charged offense, then the lesser offense is not a
lesser-included offense, and we can stop our inquiry. See Hall v. State, 225 S.W.3d
524, 536–37 (Tex. Crim. App. 2007). This first step is a question of law and does
not require an examination of the evidence to be produced at trial. Wortham v.
State, 412 S.W.3d 552, 555 (Tex. Crim. App. 2013); Hall, 225 S.W.3d at 535.

      Second, if we decide that the lesser offense is a lesser-included offense, we
must determine whether the record contains some evidence ―from which a rational
jury could acquit the defendant of the greater offense while convicting him of the
lesser-included offense.‖ Segundo, 270 S.W.3d at 90–91. The lesser-included


                                         9
offense must be a valid rational alternative to the charged offense. Wortham, 412
S.W.3d at 557; Segundo, 270 S.W.3d at 91. There must be more than a scintilla of
evidence directly germane to the lesser-included offense before an instruction on
the lesser-included offense is warranted. Wortham, 412 S.W.3d at 557–58. We
cannot consider the credibility of the evidence. Id. at 558. Weak or contradicted
evidence may be enough for the jury to convict the defendant of only the lesser-
included offense. Id. But the evidence must be more than mere speculation; it must
―consist of affirmative evidence that both raises the lesser-included offense and
rebuts or negates an element of the greater offense.‖ Id.

       We begin the first step of the analysis by considering the statutory elements
of capital murder as modified by the allegations in the indictment. The indictment
alleged the following statutory elements of capital murder:

   (1) Appellant

   (2) Intentionally

   (3) Caused the death of the complainant

   (4) By shooting the complainant with a firearm

   (5) While committing or attempting to commit robbery against the complainant.

See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2013). Next, we compare
these elements with the statutory elements of the requested lesser offense of
aggravated assault.1 At trial, appellant argued that the evidence only showed that

       1
         Assault can be committed in three possible ways. A person can commit assault by (1)
intentionally, knowingly, or recklessly causing bodily injury to another; (2) intentionally or
knowingly threatening another with imminent bodily injury; or (3) intentionally or knowingly
causing physical contact with another with actual or constructive knowledge that the other would
regard the contact as offensive. Tex. Penal Code Ann. § 22.01(a) (West Supp. 2013). An assault
becomes aggravated assault if the person commits the assault and either (1) causes another
person serious bodily injury or (2) uses or exhibits a deadly weapon during the assault. Id. §
22.02(a) (West 2011).
                                              10
the complainant ―got up and took off running and . . . maybe [appellant] fired in
the direction of him.‖2 Because appellant’s argument at trial did not allege that
appellant caused bodily injury or that appellant caused offensive physical contact,
we will analyze whether appellant was entitled to a jury instruction on the lesser
offense of aggravated assault by threat. See id. § 22.01(a)(2) (West Supp. 2013).
The elements of aggravated assault by threat are as follows:

   (1) Person [Appellant]

   (2) Intentionally or knowingly

   (3) Threatened another with imminent bodily injury

   (4) While using or exhibiting a deadly weapon.

Id. §§ 22.01(a)(2), 22.02(a)(2) (West 2011 & Supp. 2013). Now, we must
determine whether the elements of aggravated assault by threat could be
established by proof of the same or less than all the facts required to prove the
indictment for capital murder. Hall, 225 S.W.3d at 536. Here, the State was not
required to prove that appellant threatened the complainant in order to prove that
appellant committed the capital murder. See, e.g., id. at 536–37 (aggravated assault
by threat was not a lesser included offense to murder because the State was not
required to prove threatening or display). Therefore, we hold that aggravated
assault by threat is not a lesser-included offense in this case as a matter of law. We
overrule appellant’s third issue.




       2
          Appellant argues on appeal that his only participatory act was shooting two or three
times in the air outside the house to make it appear that he was on the side of the armed
intruders. This act was not assault; rather, it may have been disorderly conduct or illegal
discharge of a firearm. See id. §§ 42.01(a)(7)–(9), 42.12(a) (West 2011 & Supp. 2013).

                                             11
                                      CONCLUSION

      For the reasons stated above, the judgment of the trial court is affirmed.



                                /s/    Marc W. Brown
                                       Justice

Panel consists of Justices Christopher, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                         12
