                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-13-00378-CR


                                 EDRICK DUNN, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE


                           On Appeal from the 140th District Court
                                    Lubbock County, Texas
              Trial Court No. 2011-432,529, Honorable Jim Bob Darnell, Presiding


                                          August 11, 2014

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


       Edrick Dunn appeals his conviction for the offense of aggravated robbery and

resulting sentence of fifty years confinement.1 By a single issue, he maintains the trial

court abused its discretion by rejecting his request for a lesser-included offense

instruction. We affirm.


       1
          TEX. PENAL CODE ANN. § 29.03(a)(3)(A) (West 2011). An offense under this section is a felony
of the first degree. In addition to the primary offense, the jury also found the allegations of an
enhancement paragraph to be true.
       BACKGROUND


       Appellant does not challenge the sufficiency of the evidence supporting his

conviction; therefore, we will recite only so much of the evidence as is necessary to an

understanding of the issue presented. The criminal charges in question arose from

Appellant jerking a purse from the hands of a seventy year old woman as she walked to

a convenience store, thereby causing her to fall and sustain minor injuries. Testimony

and photographs admitted showed the victim sustained minor injuries, including small

abrasions to her right forearm, hand and finger. The victim also complained of injury to

her knees and feet. Immediately following the incident, the victim was offered medical

attention, but she turned it down. The next day she went to a doctor, who removed

three moles from her neck that had been scraped when the purse was pulled away.


       At the conclusion of the guilt-innocence phase of trial, Appellant requested the

inclusion of an instruction on the lesser-included offense of theft of an elderly person.

The trial court denied the request, and that denial forms the basis of this appeal.


       Lesser-Included Offense


       In determining whether a trial court erred in denying a request for a lesser-

included offense instruction we apply a two-step analysis. Hall v. State, 225 S.W.3d

524, 535-36 (Tex. Crim. App. 2007). First, we must determine if the proof necessary to

establish the charged offense also includes the lesser offense. Cavazos v. State, 382

S.W.3d 377, 383 (Tex. Crim. App. 2012). If this threshold is met, we must then consider

whether the evidence shows that if Appellant is guilty, he is guilty only of the lesser

offense. Id.

                                             2
       Here, the indictment upon which Appellant was tried averred that he:

       on or about the 7th day of September, A.D. 2011, did then and there,
       while in the course of committing theft of property and with intent to obtain
       or maintain control of said property, intentionally, knowingly, or recklessly
       cause bodily injury to [victim], a person 65 years of age or older, by
       causing the said [victim] to fall and strike the ground . . . .


       This language generally tracks the offense of aggravated robbery found under

section 29.03(a)(3)(A) of the Texas Penal Code.                   See TEX. PENAL CODE ANN.

§ 29.03(a)(3)(A) (West 2011) (stating that a person commits the offense of aggravated

robbery if, while in the course of committing theft, he intentionally, knowingly, or

recklessly causes bodily injury to a person who is sixty-five years of age or older).


       Appellant believes he was entitled to a lesser-included offense instruction

because testimony supplied by the victim “raised the question of whether the victim

suffered bodily injury or not.”2 In other words, because some evidence indicated the

victim’s injuries were minor, he contends there is evidence showing he is guilty of the

offense of theft of person, thereby warranting an instruction on that lesser-included

offense. See id. at § 31.03 (stating that a person commits the offense of theft if he

unlawfully appropriates property with intent to deprive the owner of that property).


       What Appellant is missing is evidence tending to show that if he is guilty of any

offense, he is only guilty of theft. He cites us to no evidence, and we have found none,

suggesting the victim suffered no bodily injury as a result of the offense or that Appellant

did not intend to cause bodily injury when he snatched her purse from her as she

walked down the street. And, given that there was no “evidence in the record that

       2
       “Bodily injury” means physical pain, illness, or any impairment of physical condition. See TEX.
PENAL CODE ANN. § 1.07(a)(8) (West Supp. 2014).

                                                  3
would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the

lesser-included offense,” the trial court did not err in denying Appellant’s requested

lesser-included offense instruction. Hall, 225 S.W.3d at 536 (quoting Bignall v. State,

887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). Simply put, Appellant failed to establish the

second prong of our two-step analysis. Accordingly, we overrule Appellant’s issue.


       CONCLUSION


       The judgment of the trial court is affirmed.




                                                           Patrick A. Pirtle
                                                               Justice

Do not publish.




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