      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00285-CR



                                  Larry D. Williams, Appellant

                                                 v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
   NO. 10-232-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING



                            MEMORANDUM OPINION


                A jury found Larry D. Williams guilty of two counts of aggravated assault with

a deadly weapon, found that he used a deadly weapon, and assessed punishment at ten years in

prison for each count and a $10,000 fine for count two only.1 By his sole issue on appeal Williams

contends that the trial court erred by failing to instruct the jury on the lesser-included offense of

assault. We will affirm the judgment.


                                         BACKGROUND

                Because of the limited scope of this appeal, we need not fully recount the evidence

in this case concerning the history of the business and neighborly relationship between appellant and

Vicente Guzman, one of the victims of his assault. Appellant met Guzman and his family when they




       1
           With respect to count two, the jury also recommended community supervision.
moved in across the street from appellant. Their relationship developed into a business arrangement,

which then fell apart. By the time of the incident at issue, appellant was putting signs in his and his

neighbors’ lawns calling Guzman a thief, among other things.

               One day, Guzman had his family over for a cookout. He saw one of appellant’s signs

in a neighbor’s yard. That neighbor walked outside and pointed at the sign, Guzman laughed, and

the neighbor threw the sign away. Guzman testified that appellant then began walking toward the

neighbor’s trash can and yelling at Guzman and his family, “You mother fuckers. I’m going to kill

you mother fuckers. I’m going to put you in the fucking grave.” Guzman testified that appellant

pulled the sign out of their mutual neighbor’s trash, pointed a gun at Guzman and his family

members, and put the sign back in the neighbor’s yard.

               Gerardo Gonzales testified about the same incident. He said appellant came over to

Guzman’s house and was waving a gun around. He saw appellant point the gun at the Guzman

family group, but could not say if appellant targeted any one of them in particular. Gonzales said

that appellant threatened them all and that he felt personally threatened with bodily injury. Gonzales

testified that he took a cousin’s young child into the house.

               Another neighbor testified that she saw appellant waving a gun around while yelling

at other neighbors who appeared to feel threatened by him, though in the “three seconds” she was

watching, she did not see him point the gun at them. She agreed that appellant was “definitely”

threatening the neighbors with the gun. A second neighbor heard appellant yelling and stating that

he had a concealed-carry permit, but she did not see the gun until the police arrested appellant. A




                                                  2
police officer who was dispatched to the scene testified that he did not see appellant threaten anyone,

but did find a gun in appellant’s pocket.

                Appellant testified that the incident began when he went to replace one of his signs

in a neighbor’s yard. He said that Guzman and family yelled at him, so he responded in kind.

Appellant admitted carrying the gun with him and said that Guzman knew he carried a gun.

Appellant said that he did not remember displaying the gun and did not point the gun at or threaten

them with it.


                                    STANDARD OF REVIEW

                We review the district court’s decision not to instruct the jury on a

lesser-included-offense for abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666

(Tex. Crim. App. 2004). A trial court may instruct the jury on a lesser-included offense if (1) the

offense in question is a lesser-included offense under article 37.09 of the Texas Code of Criminal

Procedure, and (2) the record contains some evidence that would permit a rational jury to find

the defendant guilty only of the lesser-included offense. See Hall v. State, 158 S.W.3d 470, 473

(Tex. Crim. App. 2005). This two-pronged test is often referred to as the Aguilar/Rousseau test.

See id. (citing Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Rousseau v. State,

855 S.W.2d 666, 672 (Tex. Crim. App. 1993)).

                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;




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       (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. art. 37.09. A person commits the offense of misdemeanor assault if he

intentionally, knowingly, or recklessly causes bodily injury to another or threatens another with

bodily injury. See Tex. Penal Code § 22.01(a)(l)(2). A person commits the offense of aggravated

assault if he commits misdemeanor assault and either: (1) causes serious bodily injury to another,

or (2) uses or exhibits a deadly weapon during commission of the assault. See id. § 22.02(a). In the

context of this case, appellant must show evidence that he threatened his victims with bodily injury

without using or exhibiting a gun.

               Because the parties agree that assault by threat is a lesser-included offense of

aggravated assault by threat, we will focus on whether sufficient evidence adduced at trial supported

giving the instruction on the lesser-included offense to the jury. Hall, 225 S.W.3d at 536. The

evidence supports an instruction on a lesser-included offense if it permits a rational jury to

find the defendant guilty only of the lesser included offense. Goad v. State, 354 S.W.3d 443, 446

(Tex. Crim. App. 2011). “Anything more than a scintilla of evidence is sufficient to entitle a

defendant to a lesser charge.” Id. Although this threshold showing is low, “it is not enough that the

jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be

some evidence directly germane to the lesser-included offense for the finder of fact to consider

                                                  4
before an instruction on a lesser-included offense is warranted.” Sweed v. State, 351 S.W.3d 63,

68 (Tex. Crim. App. 2011). This standard is satisfied if some evidence refutes or negates other

evidence establishing the greater offense or if the evidence presented is subject to different

interpretations. Goad, 354 S.W.3d at 446. We consider all of the evidence admitted at trial, not just

the evidence presented by the defendant. Id. However, we may not consider “[t]he credibility of the

evidence and whether it conflicts with other evidence or is controverted.” Id. at 446-47.


                                          DISCUSSION

               Appellant contends that the trial court erred by not instructing the jury on the lesser-

included offense of misdemeanor assault. He contends that the following passages from his

testimony provided evidence on which the jury could have found that he did not threaten Guzman

and Gonzales with a gun:


       A: I walked off my property with my gun in my pocket, but it was not intentional.
       I wasn’t going to threaten them, or threaten anybody for that matter. It’s just that I
       always kept my gun when I was out on my property. . . . And so I went back,
       thinking I’d done nothing wrong, just waiting for them [the police] to come because
       they came and they would go back.

       ....

       Q: Did you ever take that gun out and show Mr. Guzman?

       A: I don’t remember doing it, but I can not swear that I did not take it out because
       it was a lot of cursing and hollering and arguing. And I was trying to tell them
       ”Don’t come on my property.” I said, “Do not come on my property. I’m warning
       you, don’t come on my property, because I’m going to try to protect my property.”

       ....




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Q: You were asked about whether or not you thought you pointed the gun at these
individuals. Do you remember that?

A: Uh-huh. Yes.

Q: And your response was ‘I don’t believe I did.’

A: No, I do not.

Q: Do you remember if you did or not?

A: Well, I believe I would. That’s why I said that.

Q: You also said that you don’t remember doing it, in terms of—

A: Don’t remember doing what?

Q: Pulling the gun out.

A: No. I don’t remember pulling the gun out. But I do know this. I do know that
they knew I had the gun, and I reiterated, but I didn’t go up there to threaten them.
I went up there to put the sign back up.

....

A: Yes, I walked off the property with the gun.

Q: Why did you walk off the property?

A: Because I was trying—I was going to put the sign back up, and I was going to
talk to my friend who lived at that residence. We had just been playing dominoes.
And when I—and when I walked off the property I was actually going to talk to him.
And, probably out of just inattention to what I was doing. I didn’t even think about
the gun was even in my pocket. I was simply going to talk to the friend.

Q: Well, at some point you do know that you pulled the gun out of your pocket,
don’t you?

A: I don’t know that.

Q: Do you remember telling Officer Nate Zoss that you did, in fact, pull the gun out
of your pocket?

                                         6
        A: I don’t remember saying that.

        ....

        Q: Do you or do you not remember displaying your handgun, waving it around, and
        pointing it at the Guzmans on February 15?

        A: I know I did not point it at them.

        Q: Did you wave it around for them?

        A: I’m not sure.

        Q: Did you threaten them with it?

        A: No.


                 The aggravated assault statute does not require a showing that the defendant pointed

a gun at someone or even used the weapon as part of the threatening action. See Tex. Penal Code

§ 22.02. It permits a conviction if the defendant threatens someone with serious bodily injury while

merely exhibiting a deadly weapon. See id. Evidence that appellant did not threaten the neighbors

at all would tend to show him not guilty of any type of assault, and so would not entitle him to a

lesser-included offense of assault. Evidence that appellant did not move the gun, point it at, or

threaten to shoot the neighbors does not negate the possibility that he used or exhibited the gun in the

course of the assault. See Gaston v. State, 672 S.W.2d 819, 821 (Tex. App.—Dallas 1983, no pet.);

see also Montgomery v. State, 99 S.W.3d 257, 262 (Tex. App.—Fort Worth 2003, no pet.)

(defendant can be found guilty of aggravated assault even if he merely held the gun or displayed it

in the waistband of his pants while threatening his victim).




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               Appellant never stated that he did not exhibit the handgun while threatening his

neighbors. He admitted that he had the gun with him when he left his property and that his neighbors

knew that he had the gun. He said “I don’t remember [taking the gun out and showing it to

Mr. Guzman], but I can not swear that I did not take it out.” His strongest denial came when he said

“I know I did not point it at them,” but that does not show that he did not “exhibit” the gun while

threatening them. Appellant denied “threatening” the neighbors with the gun, but that denial came

immediately after his admission that he was “not sure” whether he might have “wave[d] it around

for them.” None of this evidence would permit the jury to find him guilty of assault but not of

aggravated assault.

               The trial court did not err by declining to instruct the jury on the lesser-included

offense of assault.


                                         CONCLUSION

               We affirm the judgment of conviction.




                                              Jeff Rose, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: June 21, 2013

Do Not Publish




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