Opinion issued December 10, 2013.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00298-CR
                           ———————————
                   BELINDA DAWN TIDWELL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Case No. 1267425



                         MEMORANDUM OPINION

      A jury convicted appellant Belinda Dawn Tidwell of the second degree

felony offense of aggravated assault for throwing muriatic acid on the complainant,

Mary Roberson. See TEX. PENAL CODE ANN. § 22.02 (West Supp. 2013). The jury
assessed Tidwell’s punishment at eight years’ incarceration, probated, and a $5,000

fine. In her sole issue on appeal, Tidwell argues that the trial court erred in

denying her request to submit the lesser-included offense of misdemeanor assault.

We affirm.

                                  Background

      John Roberson and Tidwell were divorced and had a custody agreement that

permitted John to pick up their daughter from Tidwell at 3:00 p.m. on Thursday

afternoons. John and Tidwell’s relationship was contentious, and he typically

brought another person to Thursday afternoon pickups to act as a witness for any

incident that might occur. John’s usual practice was to wait in his car until his

daughter came out of the house at 3:00 p.m.

      On May 27, 2010, John brought his wife, Mary, to the regularly-scheduled

3:00 p.m. pickup. They arrived a few minutes early, waited in the car, and then

honked the horn at 3:00 p.m. After waiting a few minutes longer, Mary walked to

the front door. Mary had a practice of recording interactions with Tidwell and

used her phone to record the encounter that day. After Mary knocked on the front

door, Tidwell opened it and threw acid onto Mary’s face and chest. Mary testified

that Tidwell looked directly at her before throwing the acid. Mary was wearing

sunglasses, which shielded her eyes from the acid.




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      Tidwell testified that she was using muriatic acid to clean the outside of the

chimney, did not hear Mary knocking at the door, and did not expect that anyone

would be standing outside the door where she threw the acid. Tidwell testified that

she had placed yellow crime scene tape outside the house to prevent anyone from

going in the area where she was using the acid. She also testified that she threw

the acid out the door because it had started to smoke as she was carrying it in a

bucket through the house. She hurriedly moved to the front door and threw the

contents out, with her face turned away from the door to avoid inhaling the fumes.

      Michael Sieck, the Harris County police sergeant with whom Tidwell lived,

also testified that yellow crime scene tape had been put up outside the house as a

warning to potential passersby. But Mary testified that she did not see any yellow

crime scene tape.

      Mary’s treating physician testified that muriatic acid is caustic and “can

damage any exposed skin, eyes, mouth, anything.” In Mary’s case, it caused a

chemical burn, with swelling around her mouth and lips. He further testified that

if inhaled, “it could cause serious injuries to the lungs with complications that

would ensue,” and that if Mary had not been wearing sunglasses at the time of the

incident, it is likely that the acid would have caused serious, possibly permanent,

damage to Mary’s eyes. He testified that although there was no serious bodily




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injury to Mary, in his opinion throwing muriatic acid onto another person “is

capable of causing death or serious bodily injury.”

      The complaint alleged that Tidwell “unlawfully intentionally and knowingly

cause[d] bodily injury to [Mary] by using a deadly weapon, namely MURIATIC

ACID.” The charge proposed by the trial court instructed the jury that:

      A person commits the offense of assault if the person intentionally or
      knowingly causes bodily injury to another.

      A person commits the offense of aggravated assault if the person
      commits assault, as hereinbefore defined, and the person uses or
      exhibits a deadly weapon during the commission of the assault.

      “Deadly weapon” means anything manifestly designed, made, or
      adapted for the purpose of inflicting death or serious bodily injury; or
      anything that in the manner of its use or intended use is capable of
      causing death or serious bodily injury.

      At the charge conference, Tidwell requested an instruction on the lesser-

included offense of misdemeanor assault. Counsel argued that “if the jury doesn’t

believe that the acid was used in a manner where it would be a deadly weapon but

injury was caused anyhow, then if [the jurors] don’t believe that, it would be a

misdemeanor Class A assault and not aggravated assault.” The trial court denied

Tidwell’s request. The jury convicted Tidwell of aggravated assault, and Tidwell

appealed.




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                                    Discussion

      In her sole point of error, Tidwell contends that the trial court erred by

denying her request to instruct the jury on the lesser-included offense of

misdemeanor assault.

A. Applicable Law

      An offense qualifies as a lesser-included offense of the charged 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
          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). We employ a two-pronged

test in determining whether a defendant is entitled to an instruction on a lesser-

included offense. See Ex Parte Watson, 306 S.W.3d 259, 262–63 (Tex. Crim.

App. 2009); see also Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App.

2007). The first prong requires the court to use the “cognate pleadings” approach

to determine if an offense is a lesser-included offense of another offense. See

Watson, 306 S.W.3d at 271. The first prong is met if the indictment for the

greater-inclusive offense either: “(1) alleges all of the elements of the lesser-
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included offense, or (2) alleges elements plus facts (including descriptive

averments, such as non-statutory manner and means, that are alleged for purposes

of providing notice) from which all of the elements of the lesser-included offense

may be deduced.” Id. at 273. This inquiry is a question of law. Hall, 225 S.W.3d

at 535.

      The second prong asks whether there is evidence that supports submission of

the lesser-included offense. Hall, 225 S.W.3d at 536. “A defendant is entitled to a

requested instruction on a lesser-included offense where . . . there is some evidence

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

guilty, he is guilty only of the lesser-included offense.” Id. (quoting Bignall v.

State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). “In other words, the evidence

must establish the lesser-included offense as ‘a valid, rational alternative to the

charged offense.’” Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.

App. 1999)). Anything more than a scintilla of evidence may be sufficient to

entitle a defendant to a charge of a lesser-included offense, but it is not enough that

the jury may disbelieve crucial evidence pertaining to the greater offense. Id.

(quoting Bignall, 887 S.W.2d at 23); Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997) (citing Bignall, 887 S.W.2d at 24). Rather, “there must be some

evidence directly germane to a lesser-included offense for the factfinder to




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consider before an instruction on a lesser-included offense is warranted.” Skinner,

956 S.W.2d at 543 (citing Bignall, 887 S.W.2d at 24).

      When reviewing a trial court’s decision to deny a requested instruction for a

lesser-included offense, we consider the charged offense, the statutory elements of

the lesser offense, and the evidence actually presented at trial. Hayward v. State,

158 S.W.3d 476, 478 (Tex. Crim. App. 2005) (citing Jacob v. State, 892 S.W.2d

905, 907–08 (Tex. Crim. App. 1995)). “The credibility of the evidence, and

whether it conflicts with other evidence, must not be considered in deciding

whether the charge on the lesser-included offense should be given.” Dobbins v.

State, 228 S.W.3d 761, 768 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d)

(citing Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992)). If we

find error and the appellant properly objected to the jury charge, we employ the

“some harm” analysis. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App.

2005) (en banc).

B. Analysis

      The elements of misdemeanor assault are:

      (1) intentionally, knowingly, or recklessly caus[ing] bodily injury to
          another, including the person’s spouse;

      (2) intentionally or knowingly threaten[ing] another with imminent
          bodily injury, including the person’s spouse; or




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      (3) intentionally or knowingly caus[ing] physical contact with another
          when the person knows or should reasonably believe that the other
          will regard the contact as offensive or provocative.

TEX. PENAL CODE ANN. § 22.01 (West Supp. 2013). The offense of aggravated

assault occurs when “the person commits assault as defined in § 22.01 and the

person: (1) causes serious bodily injury to another, including the person’s spouse;

or (2) uses or exhibits a deadly weapon during the commission of the assault.”

TEX. PENAL CODE ANN. § 22.02(a) (West Supp. 2013). A “deadly weapon” is

defined as “anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B)

(West 2012).

      Here, the first prong of the two-prong analysis is satisfied because the

greater-included offense—aggravated assault—alleges all of the elements of the

lesser-included offense, assault. See Barnett v. State, 344 S.W.3d 6, 15 (Tex.

App.—Texarkana 2011, pet. ref’d) (concluding that “[a]ssault is a lesser included

offense of aggravated assault”).

      But, to meet the second prong, Tidwell must demonstrate that the record

contains some evidence “directly germane” to the commission of the lesser-

included offense of assault. In other words, Tidwell must show that a rational jury

could find that if she is guilty, she is guilty only of misdemeanor assault. See Hall,

225 S.W.3d at 536 (quoting Bignall, 887 S.W.2d at 23). Tidwell does not dispute

                                          8
that the acid was capable of causing death or serious bodily injury—she admitted

that “there was certainly evidence that [she] used an object (acid) that was capable

of causing death or serious bodily injury.” Instead, Tidwell contends there is

evidence that she was guilty of only misdemeanor assault because there was

evidence that she did not know another person “was anywhere in harm’s way”

when she threw the acid out the door.

      Citing McCain v. State, Tidwell argues that an object only qualifies as a

deadly weapon if the actor intends its use in a way that would affect another

person. Here, there was evidence that Tidwell did not know Mary was outside the

door, and this, Tidwell argues, is evidence that the acid was not a deadly weapon.

We believe McCain itself compels us to reject Tidwell’s contention. McCain v.

State noted:

      The statute [defining “deadly weapon”] does not say “anything that in
      the manner of its use or intended use causes death or serious bodily
      injury.” Instead the statute provides that a deadly weapon is
      “anything that in the manner of its use or intended use is capable of
      causing death or serious bodily injury.” § 1.07(a)(17)(B) (emphasis
      added). The provision’s plain language does not require that the actor
      actually intend death or serious bodily injury; an object is a deadly
      weapon if the actor intends a use of the object in which it would be
      capable of causing death or serious bodily injury. The placement of
      the word “capable” in the provision enables the statute to cover
      conduct that threatens deadly force, even if the actor has no intention
      of actually using deadly force.

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (en banc) (citing

Tisdale v. State, 686 S.W.2d 110, 114–115 (Tex. Crim. App. 1984)).
                                         9
       McCain explicitly holds that the plain language of the provision defining

deadly weapon “does not require that the actor actually intend death or serious

bodily injury.” Id. Rather, the statute includes the word “capable” to “cover

conduct that threatens deadly force, even if the actor has no intention of actually

using deadly force.” Id.

       Thus, whether Tidwell intended or expected to harm another by her use of

the muriatic acid does not determine whether the acid was a deadly weapon. See

id.   Because Tidwell conceded throwing the muriatic acid, which the doctor

testified was capable of causing serious bodily injury, there was no evidence upon

which a rational jury could find that Tidwell did not use a deadly weapon in the

commission of the assault. See Barnett, 344 S.W.3d at 16 (concluding there was

no evidence from which rational jury could convict on lesser-included offense of

assault instead of aggravated assault where evidence did not negate allegation that

appellant used deadly weapon during assault). Accordingly, the trial court did not

err in refusing to instruct the jury on the lesser-included offense of assault. We

overrule the appellant’s sole point of error.




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                                   Conclusion

      We affirm the judgment of the trial court.



                                             Rebeca Huddle
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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