                                                                                     ACCEPTED
                                                                                01-14-00280-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           1/13/2015 3:10:59 PM
                     No. 01-14-00280-CR                                     CHRISTOPHER PRINE
                                                                                         CLERK

                             In the
                      Court of Appeals
                            For the                         FILED IN
                    First District of Texas          1st COURT OF APPEALS
                                                         HOUSTON, TEXAS
                          At Houston
                                                     1/13/2015 3:10:59 PM
                                          CHRISTOPHER A. PRINE
                                                             Clerk

                         No. 1376587
              In the 262nd Criminal District Court
                    Of Harris County, Texas
                   

                    LOUIS STREDIC
                        Appellant
                           V.
                  THE STATE OF TEXAS
                        Appellee
                   

               STATE’S APPELLATE BRIEF
                   

                                       DEVON ANDERSON
                                       District Attorney
                                       Harris County, Texas
                                       MELISSA P. HERVEY
                                       Assistant District Attorney
                                       Harris County, Texas
                                       State Bar Number: 24053741

                                       JAMIE BURRO
                                       JAMES O’DONNELL
                                       Assistant District Attorneys

                                       1201 Franklin Street, Suite 600
                                       Houston, Texas 77002
                                       Telephone: (713) 755-5826
                                       Fax Number: (713) 755-5809
                                       Hervey_Melissa@dao.hctx.net

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant

requests oral argument.

                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), a

complete list of the names of all interested parties, and the names and addresses of

all trial and appellate counsel, is provided below:

      Complainant or Victim:

             Lesley Thomas

      Counsel for the State:

             Devon AndersonDistrict Attorney of Harris County

             Melissa P. HerveyAssistant District Attorney on appeal

             Jamie Burro; James “Jim” O’Donnell—Assistant District
             Attorneys at trial

             Harris County District Attorney’s Office
             1201 Franklin Street, Suite 600
             Houston, Texas 77002

      Appellant or Criminal Defendant:

             Louis Stredic




                                           i
        Counsel for Appellant:

                 Cynthia Henley—Defense Counsel on appeal

                 7626 East Jordan Cove
                 Houston, Texas 77055

                 Ricardo N. Gonzalez—Defense Counsel at trial

                 7015 Gulf Freeway, Suite 215
                 Houston, Texas 77087

                 Jonathan “Jon” Parchman—Defense Counsel at trial

                 2002 Timberloch Place, Suite 200
                 The Woodlands, Texas 77380

        Trial Judge:

                 Honorable Denise Bradley—Presiding Judge of the 262nd Criminal
                 District Court


                                     TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 6

                                                      ii
REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 6

        I.    STANDARD OF REVIEW AND APPLICABLE LAW REGARDING JURY
              CHARGE ERROR ........................................................................................ 7

        II. THE STATE AND THE DEFENDANT HAVE DIFFERING OBLIGATIONS TO
            DEMONSTRATE THAT THEY ARE ENTITLED TO THE SUBMISSION OF
            THEIR REQUESTED LESSER-INCLUDED-OFFENSE INSTRUCTIONS ........... 8

        III. THE TRIAL COURT DID NOT ERR BY GRANTING THE STATE’S
             REQUEST FOR A JURY INSTRUCTION ON THE LESSER-INCLUDED
             OFFENSE OF ROBBERY BY THREAT ........................................................ 12

CONCLUSION AND PRAYER ............................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 16

CERTIFICATE OF SERVICE ................................................................................ 17


                                   INDEX OF AUTHORITIES

CASES

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) ...............................................................8
Barrios v. State,
  283 S.W.3d 348 (Tex. Crim. App. 2009) ...............................................................7
Casey v. State,
  215 S.W.3d 870 (Tex. Crim. App. 2007) ...............................................................7
Goad v. State,
 354 S.W.3d 443 (Tex. Crim. App. 2011) .........................................................8, 10
Grey v. State,
  298 S.W.3d 644 (Tex. Crim. App. 2009) ...................................... 6, 11, 12, 13, 14
Irving v. State,
  176 S.W.3d 842 (Tex. Crim. App. 2005) .............................................................10



                                                        iii
Jacob v. State,
  892 S.W.2d 905 (Tex. Crim. App. 1995) .............................................................11
McKithan v. State,
 324 S.W.3d 582 (Tex. Crim. App. 2010) ...............................................................9
Ngo v. State,
  175 S.W.3d 738 (Tex. Crim. App. 2008) ...............................................................7
Oursbourn v. State,
 259 S.W.3d 159 (Tex. Crim. App. 2008) ...............................................................8
Penaloza v. State,
  349 S.W.3d 709 (Tex. App.—
  Houston [14th Dist.] 2011, pet. ref’d) ..................................................................14
Reeves v. State,
  420 S.W.3d 812 (Tex. Crim. App. 2013) ...............................................................8
Rice v. State,
  333 S.W.3d 140 (Tex. Crim. App. 2011) .................................................... 8, 9, 10
Rousseau v. State,
  855 S.W.2d 666 (Tex. Crim. App. 1993) .........................................................8, 10
Royster v. State,
  622 S.W.2d 442 (Tex. Crim. App. 1981) ...............................................................8
Salazar v. State,
  284 S.W.3d 874 (Tex. Crim. App. 2009) .............................................................10
Satchell v. State,
  321 S.W.3d 127 (Tex. App.—
  Houston [1st Dist.] 2010, pet. ref’d) ....................................................... 12, 13, 14
Schweinle v. State,
  915 S.W.2d 17 (Tex. Crim. App. 1996) ...............................................................11
Skinner v. State,
  956 S.W.2d 532 (Tex. Crim. App. 1997) .............................................................11
Wesbrook v. State,
 29 S.W.3d 103 (Tex. Crim. App. 2000) .................................................................7
Young v. State,
  428 S.W.3d 172 (Tex. App.—
  Houston [1st Dist.] 2014, pet. ref’d) ....................................................................13



                                                     iv
STATUTES

TEX. CODE CRIM. PROC. ANN. art. 37.09..............................................................9, 13
TEX. PENAL CODE ANN. § 29.02(a)(2)..................................................................1, 13
TEX. PENAL CODE ANN. § 29.03(a)(2) .................................................................1, 13


RULES

TEX. R. APP. P. 9.4(g) ................................................................................................. i
TEX. R. APP. P. 9.4(i)................................................................................................16
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................... i




                                                            v
TO THE HONORABLE COURT OF APPEALS:

                            STATEMENT OF THE CASE

       The State charged appellant by indictment with aggravated robbery by threat

with a deadly weapon. (CR – 15);1 see TEX. PENAL CODE ANN. § 29.03(a)(2); TEX.

PENAL CODE ANN. § 29.02(a)(2). In a Notice of Intent to Seek Punishment

Enhancement, the State also alleged that appellant had previously been convicted

of two felony offenses. (CR – 36). The jury found appellant guilty of the lesser-

included offense of robbery by threat. (CR – 74-75); (RR X – 149-51). On March

13, 2014, appellant pled “true” to the State’s punishment-enhancement allegations,

and appellant and the State informed the trial court that the parties had reached an

agreement regarding punishment; the trial court then found the State’s punishment-

enhancement allegations “true” and sentenced appellant to confinement in the

Texas Department of Criminal Justice, Correctional Institutions Division, for fifty

years in accordance with the State’s and appellant’s agreement. (CR – 75-76); (RR

V – 12). Appellant timely filed written notice of appeal on March 13, 2014. (CR –

78).

                         



1
  The Clerk’s Record consists of one volume, hereinafter referenced as (CR – [page number]).
The Court Reporter’s Record consists of six volumes, which will be referenced as (RR [I-VI] –
[page number]). State’s Exhibits admitted at trial will be referenced as (RR VI – SX [exhibit
number]).
                           STATEMENT OF FACTS

       Lesley Thomas traveled from Houston to Dallas to visit her family and

friends, and to watch the Super Bowl, over the first weekend of February 2013.

(RR IV – 12). To get to Dallas and back to Houston, Thomas used the Megabus

express bus service, leaving her silver Nissan Altima sedan in the Megabus parking

lot for the duration of her trip. (RR IV – 12-13); see (RR VI – SX 2-3). Shortly

after midnight on February 5, 2013, Thomas exited the Megabus that she had

ridden back to Houston, collected her luggage, and began walking to her car. (RR

IV – 16-18). While en route to her vehicle, Thomas noticed appellant at a METRO

municipal bus station across the street from the Megabus lot. (RR IV – 18); see

(RR VI – SX 5) . Thomas paid little mind to appellant, believing that he was a

security guard because of his attire—a navy blue button-down shirt with a name

badge and badge on it, and matching blue “work” pants—which appeared to

Thomas to be a security guard uniform. (RR IV – 19).

       Thomas reached her Altima and put her baggage in the trunk, and then

began wiping condensation off of her car windows with an old sweater. (RR IV –

20). As Thomas walked around her car towards the driver’s door, she noticed that

appellant had crossed the street and was “inching closer” to her. (RR IV – 20, 34-

35).   Thomas observed appellant “reaching into his pocket” while he walked




                                        2
towards her, but Thomas remained unconcerned because she thought appellant

might have been reaching for a cigarette. (RR IV – 20-21, 35).

      Thomas reached the driver’s door of her Altima and, as she “grabbed [her]

driver’s side door handle[,]...[appellant] came behind [her] and placed a gun in the

lower part of her back.”     (RR IV – 22, 36).       Thomas panicked and began

screaming, hoping to draw help from other people who were standing near the

METRO station. (RR IV – 22). Still behind Thomas, appellant “placed his left

arm across [her] chest to restrain [her],” knocking-off Thomas’s glasses in the

process, and “told [Thomas] if [she] did not stop screaming he was going to blow

[her] goddamn brains out.” (RR IV – 23, 36-37). Terrified that appellant would

shoot her, Thomas was immediately quiet. (RR IV – 23). Appellant then forced

Thomas to open her driver’s door, get into her car, and climb over the center

console of the vehicle to get into the front passenger seat. (RR IV – 23, 37, 45).

Appellant followed Thomas into her Altima, sitting in the driver’s seat of the car

and keeping the gun “in [her] lower back” as she maneuvered to the passenger seat.

(RR IV – 23-24, 45).

      Once appellant and Thomas were both seated in Thomas’s vehicle, appellant

demanded cash and credit cards from her. (RR IV – 24). Thomas gave appellant

$140 in cash, and then gave him her entire purse. (RR IV – 24). Unsatisfied,

appellant made Thomas put her car keys in the ignition and turn on the vehicle so

                                         3
that appellant could see how much gas was in the Altima’s gas tank. (RR IV – 25).

Seeing that the gas tank was one-quarter full, appellant told Thomas to look away

from him, and then threatened her, “[I]f you don’t get out of this car right now, I’m

going to blow your goddamn brains out.” (RR IV – 25). Thomas rapidly exited

her vehicle and ran to the METRO station across the street. (RR IV – 26).

Appellant watched Thomas flee, and then drove away in Thomas’s Altima. (RR

IV – 26).

      Thomas told the bystanders at the METRO station that she had just been

carjacked, and borrowed a cell phone from a stranger to call the police. (RR IV –

26). When several officers with the Houston Police Department (HPD) responded

to Thomas’s location five or six minutes later, Thomas gave the officers the license

plate number and a description of her Altima, a description of appellant, and her

account of the robbery. (RR IV – 27, 39-40, 52, 57-62). The police put out a

BOLO, or a “be on the lookout” call, over the police radio with Thomas’s

descriptions of appellant and the Altima, and also reported that the Altima had

been stolen. (RR IV – 53, 55). An officer then drove Thomas to a hospital where

Thomas’s aunt worked, so that Thomas would have a means to get home and then

into her residence with her aunt’s spare key. (RR IV – 28, 62).

      Approximately seven hours later that morning, at 7:00 AM, a woman called

the Alvin Police Department in Brazoria County to report that appellant, whom the

                                         4
woman knew, was “knocking on her door trying to gain access to her house.” (RR

IV – 67, 74). Two Alvin police officers drove to the woman’s address and, upon

their arrival, observed appellant backing a silver Nissan Altima away from the

residence. (RR IV – 67-68, 74). One of the officers, Officer Foley, detained

appellant and asked him for his driver’s license; appellant handed Foley another

person’s license and told Foley that appellant did not have his own license with

him. (RR IV – 68, 70, 74). Foley arrested appellant for driving without his

driver’s license and placed appellant in the back of Foley’s patrol car. (RR IV –

68, 70). Foley then “ran” the license plate number of the Altima and discovered

that HPD had reported the vehicle as stolen. (RR IV – 68-69). Foley transported

appellant to the Alvin Police Department to book him and, while inventorying

appellant’s personal possessions, found Thomas’s driver’s license in one of

appellant’s pants pockets. (RR IV – 69). When Foley questioned appellant about

Thomas’s license, appellant told Foley that Thomas was appellant’s wife. (RR IV

– 69). Foley then contacted HPD to notify the department that he had appellant in

custody and that he had apprehended appellant with a vehicle that HPD had listed

as stolen. (RR IV – 69, 77).

      Officer Crank, an investigator in the HPD Robbery Division, obtained

appellant’s name and date of birth from Alvin Police Department, and then

prepared a photographic array containing photographs of appellant and five other

                                       5
men. (RR IV – 77, 79); see (RR VI – SX 8). On February 6, 2013, Crank met

Thomas at her home and administered the photographic array to her. (RR IV – 29-

32, 78, 87); see (RR VI – SX 7). Thomas positively identified appellant “in a

matter of seconds” as the man who had robbed her, and was “[e]xtremely

confident” in her identification. (RR IV – 32, 46-47, 80, 82, 91); see (RR VI – SX

8).

                        

                       SUMMARY OF THE ARGUMENT

      In light of Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009), the trial

court correctly instructed the jury on the lesser offense of robbery by threat, at the

State’s request and over appellant’s objection, because robbery by threat is a

lesser-included offense of aggravated robbery by threat with a deadly weapon, as

charged.

                        

            REPLY TO APPELLANT’S SOLE POINT OF ERROR

      Appellant contends in his only complaint on appeal that the trial court erred

by including in the jury charge an instruction regarding the lesser-included offense

of robbery by threat, over appellant’s objection at trial. Essentially, appellant

contends that the State was not entitled to such an instruction because the record

lacks evidence which establishes robbery by threat as a valid, rational alternative to

                                          6
the charged offense, per the second prong of the Royster-Rousseau test for lesser-

included-offense instructions. See (Appellant’s Brief – 11-13).

   I. Standard of Review and Applicable Law Regarding Jury Charge Error

      A trial court’s composition of the jury charge, including the addition or

omission of requested or necessary instructions, is reviewed on appeal for abuse of

discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000)

(finding that a trial court did not abuse its discretion by declining to submit a

requested jury instruction). A trial court abuses its discretion only when its ruling

lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870,

879 (Tex. Crim. App. 2007). When a party alleges jury charge error, a reviewing

court must first determine whether error was actually committed by the trial court.

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If error is found in

the jury charge, the appellate court must then determine whether the error resulted

in sufficient harm to the accused to warrant reversal. Ngo v. State, 175 S.W.3d

738, 743 (Tex. Crim. App. 2008).

       The degree of harm which necessitates reversal depends upon whether the

complaining party preserved the jury charge error. Ngo, 175 S.W.3d at 743. When

the complained-of charge error was properly preserved—either by a specific

request for a jury instruction or by an objection to the omission of the desired

instruction from the jury charge—the record need only show that the defendant

                                         7
suffered “some harm” for reversal to be warranted. Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984); see Oursbourn v. State, 259 S.W.3d 159, 174 (Tex. Crim. App.

2008) (stating that a defendant must submit a proposed jury instruction or object to

the lack of the requested jury instruction to preserve error on the issue). If error

was not properly preserved, however, reversal is required only if the defendant

shows that the error was “fundamental” and that he suffered “egregious harm”

thereby. Reeves, 420 S.W.3d at 816; Almanza, 686 S.W.2d at 171.

   II. The State and the Defendant have Differing Obligations to Demonstrate
       that they are Entitled to the Submission of their Requested Lesser-
       Included-Offense Instructions

      While either the State or the defendant may request a lesser-included-offense

instruction, the defendant has a more onerous task to prove that he is entitled to

such an instruction. A defendant is entitled to an instruction on a lesser-included

offense only when the defense fulfills both conditions of the two-part Royster-

Rousseau test. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); see

generally Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); see also

Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). Under that test, the

defendant must first request an instruction for a lesser offense that is actually a

lesser-included offense of the crime charged in the indictment. Rice v. State, 333

S.W.3d 140, 144 (Tex. Crim. App. 2011). This requirement is a purely legal


                                         8
question, asking whether all of the elements of the lesser offense are contained

within those of the greater offense, and thus does not depend on the evidence

produced at trial. Rice, 333 S.W.3d at 144; see also Hall v. State, 225 S.W.3d 524,

531, 535 (Tex. Crim. App. 2007).

      An offense is a “lesser included offense” of a greater offense if:

      (1) it is established by proof of the same or less than all of 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
          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.

      A court must “‘examine the elements of the lesser offense and decide

whether they are functionally the same or less than those required to prove the

charged offense[]’” before it may proceed with any evaluation of the amount and

quality of the evidence introduced. Rice, 333 S.W.3d at 144-45 (quoting McKithan

v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010)). As explained in Hall v.

State, 225 S.W.3d 524, 531, 535 (Tex. Crim. App. 2007), a reviewing court

engaged in this initial step must determine which lesser-included offenses, if any,

are applicable to a given case based on the elements and facts of the greater offense

                                          9
as alleged in the charging instrument. Hall, 225 S.W.3d at 535. This cognate-

pleadings approach is the “sole test for determining in the first step whether a party

may be entitled to a lesser-included-offense instruction.” Hall, 225 S.W.3d at 535.

An element of a lesser offense may be deduced from those of the greater offense.

Salazar v. State, 284 S.W.3d 874, 880 (Tex. Crim. App. 2009). However, a trial

court is not obligated to instruct the jury on a lesser-included offense if the conduct

required to prove the lesser offense is not contained within the conduct alleged in

the charging instrument. Irving v. State, 176 S.W.3d 842, 846 (Tex. Crim. App.

2005).

      Second, after a court concludes that the first prong of the Royster-Rousseau

test has been satisfied, the defendant is entitled to a lesser-included-offense

instruction only if the record supports the instruction. Rice, 333 S.W.3d at 144;

Rousseau, 855 S.W.2d at 672-73. That is, the trial court must charge the jury on an

applicable lesser-included offense only “if there is some evidence in the record

which would permit a jury to rationally find that, if the defendant is guilty, he is

guilty only of the lesser-included offense.” Id. A defendant is not entitled to an

instruction on a lesser offense if the evidence merely raises the possibility of the

lesser offense; rather, the evidence “must establish the lesser-included offense as a

valid, rational alternative to the charged offense.” Goad, 354 S.W.3d at 446; Hall,

225 S.W.3d at 536.

                                          10
      It is not enough that the jury may disbelieve crucial evidence pertaining to

the greater offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App.

1997). Instead, there must be some evidence directly germane to a lesser-included

offense for the factfinder to consider before the instruction is warranted. Skinner,

956 S.W.2d at 543. A lesser-included offense may be raised if evidence either

affirmatively refutes or negates an element establishing the greater offense, or if

the evidence on the issue is subject to two different interpretations, and one of the

interpretations negates or rebuts an element of the greater offense. Schweinle v.

State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). Thus, whether a defendant has

fulfilled the second portion of the Royster-Rousseau test and, as such, is entitled to

a jury instruction on a lesser-included offense must be determined on a case-by-

case basis accordingly to the specific facts and evidence of the defendant’s case.

Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim. App. 1995).

      Conversely, when the State requests a lesser-included-offense instruction,

the State must satisfy only the first prong of the Royster-Rousseau test to be

entitled to the instruction; that is, the State must show only that its requested

instruction describes an offense that is actually a lesser-included-offense of the

charged offense. See Grey v. State, 298 S.W.3d 644, 645- (Tex. Crim. App. 2009)

(overruling precedent to hold that the State is not bound by the second prong of the

Royster-Rousseau test); Satchell v. State, 321 S.W.3d 127, 136 (Tex. App.—

                                         11
Houston [1st Dist.] 2010, pet. ref’d) (relying on Grey to reject the defendant’s

complaint that the trial court erred by granting the State’s request for a lesser-

included-offense instruction, observing that “to obtain a lesser-included offense

instruction, the State need only show that its requested instruction describes a

lesser-included offense of the charged offense.”). As the Texas Court of Criminal

Appeals explained in Grey, permitting the State its requested lesser-included-

offense instructions without requiring the prosecution to meet the demands of the

second prong of the Royster-Rousseau test empowers the State to “see that justice

is done” by providing the factfinder with options to convict the defendant of a

lesser offense, but without capitulating that the defendant is not guilty of the

charged offense. Grey, 298 S.W.3d at 651. Further, granting the State such

flexibility best serves society’s interest in convicting and punishing people who are

guilty of crimes, given that “submission of the lesser-included offense will enhance

the prospects of securing an appropriate criminal conviction for a defendant who is

in fact guilty....” Id.

   III. The Trial Court Did Not Err by Granting the State’s Request for a Jury
        Instruction on the Lesser-Included Offense of Robbery by Threat

       The record establishes that the State requested a jury instruction on the lesser

offense of robbery by threat, and that the trial court agreed to include such an

instruction in the jury charge over appellant’s objection. (CR – 70); see (RR IV –

96-98) (showing the prosecutor’s request, “Your Honor, we are requesting the
                                          12
lesser.”). Under Grey, the State was entitled to an instruction on that lesser offense

if it established the first prong of the Royster-Rousseau test, only; that is, if the

State was requesting an instruction for a lesser offense that was legally a lesser-

included offense of the charged offense.        See Grey, 298 S.W.3d at 645-51

(concluding that, to avoid “plac[ing] undue burdens on the prosecutor” and to

permit the prosecution to submit lesser offenses when the prosecutor believes such

options such be available to the jury, the State is not bound by the second prong of

the Royster-Rousseau test); Satchell, 321 S.W.3d at 136 (“[T]o obtain a lesser-

included offense instruction, the State need only show that its requested instruction

describes a lesser-included offense of the charged offense.”)

      For purposes of the first prong of the Royster-Rousseau test, it is clear that

robbery by threat is a lesser-included offense of aggravated robbery by threat with

a deadly weapon because all of the elements of robbery by threat are contained

within the elements of aggravated robbery by threat with a deadly weapon. See

TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (stating that one offense is a lesser-

included offense of another crime if the lesser offense “is established by proof of

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

offense charged[.]”; compare TEX. PENAL CODE ANN. § 29.02(a)(2) with TEX.

PENAL CODE ANN. § 29.03(a)(2); see also, e.g., Young v. State, 428 S.W.3d 172,

176 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Penaloza v. State, 349

                                         13
S.W.3d 709, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Accordingly,

consistent with Grey, the State was entitled to its requested lesser-included-offense

instruction on robbery by threat on that basis, alone, regardless of whether there

was any affirmative evidence in the record that refuted or negated the deadly

weapon element of the charged offense and, hence, established robbery by threat as

a rational and viable alternative to aggravated robbery by threat with a deadly

weapon, as charged. C.f. Grey, 298 S.W.3d at 646-51 (holding that the State was

entitled to submission of a jury instruction on the lesser offense of simple assault,

over the defendant’s objection, because that offense was a lesser-included offense

of the charged offense of aggravated assault by causing bodily injury with a deadly

weapon under the first prong of the Royster-Rousseau test); Satchell, 321 S.W.3d

at 136 (affirming the trial court’s submission of the State’s requested jury

instruction on possession of PCP, over the defendant’s objection, because that

offense was a lesser-included offense of possession with intent to deliver PCP).

Thus, the trial court did not err in granting the State’s request for an instruction on

the lesser-included offense of robbery by threat, and appellant’s arguments to the

contrary lack merit.

      Appellant’s sole point of error should be overruled.

                        




                                          14
                         CONCLUSION AND PRAYER

      For the foregoing reasons, the State respectfully submits that the trial court

correctly instructed the jury on the lesser-included offense of robbery. Thus, the

State respectfully prays that this Court will overrule appellant’s single point of

error, and will affirm appellant’s conviction.


                                                   Respectfully submitted,


                                                   DEVON ANDERSON
                                                   District Attorney
                                                   Harris County, Texas


                                                      /S/ Melissa Hervey
                                                   MELISSA P. HERVEY
                                                   Assistant District Attorney
                                                   Harris County, Texas
                                                   State Bar Number: 24053741
                                                   1201 Franklin Street, Suite 600
                                                   Houston, Texas 77002
                                                   Telephone (713) 755-5826
                                                   Fax Number (713) 755-5809
                                                   Hervey_Melissa@dao.hctx.net




                                         15
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned

attorney certifies that there are 3,270 words in the foregoing computer-generated

document, based upon the representation provided by Microsoft Word, the word

processing program that was used to create the document, and excluding the

portions of the document exempted by Rule 9.4(i)(1).



                                                    /S/ Melissa Hervey
                                                 MELISSA P. HERVEY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 State Bar Number: 24053741
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Hervey_Melissa@dao.hctx.net




                                       16
                        CERTIFICATE OF SERVICE

      This is to certify that the undersigned counsel has directed the e-filing

system eFile.TXCourts.gov to serve a true and correct copy of the foregoing

document upon Cynthia Henley, appellant’s attorney of record on appeal, on

January 13, 2015, at the following e-mail address, through the electronic service

system provided by eFile.TXCourts.gov:

      cynthiahenley@yahoo.com



                                                    /S/ Melissa Hervey
                                                 MELISSA P. HERVEY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 State Bar Number: 24053741
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Hervey_Melissa@dao.hctx.net




                                       17
