                                  NO. 07-09-00251-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                 FEBRUARY 25, 2011


                         DONALD R. JOHNSON, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2009-422,831; HONORABLE JIM BOB DARNELL, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant Donald R. Johnson appeals from his jury conviction of the offense of

assault on a public servant and his resulting sentence of fifteen years of imprisonment.1

Through one issue, appellant contends the trial court committed reversible error by

denying his request for an instruction on the lesser-included offense of resisting arrest.

We affirm.




      1
        Appellant was also convicted of robbery and sentenced to twenty-five years of
imprisonment. That conviction and sentence is not at issue in this appeal.
                                        Background


       Appellant was charged in a four-count indictment with the offenses of assault on

a public servant (two counts), aggravated assault on a public servant and robbery.2 The

indictment included an enhancement paragraph setting forth appellant’s previous felony

conviction for burglary of a habitation.3 The jury convicted appellant of robbery and one

count of assault on a public servant. On appeal, only the conviction for assault on a

public servant is at issue.


       Trial testimony showed that Lubbock police officers responded to a burglar alarm

at a Lubbock pawn shop.         One of the responding officers apprehended appellant

outside the building. That officer testified appellant repeatedly hit her in the head and

elsewhere as she attempted to arrest him.         Other testimony and medical records

evidenced injuries the officer suffered.


       Appellant took the stand and testified the officer tackled him and he dragged her

while trying to escape her grasp. He asserted he never hit the officer or in any way

attempted to injure her. He agreed his intent was only to resist arrest.




       2
        See Tex. Penal Code Ann. § 22.01(b)(1) (West 2009) (assault on a public
servant); Tex. Penal Code Ann. § 22.02 (West 2009); (aggravated assault on a public
servant); and Tex. Penal Code Ann. § 29.02 (West 1994) (robbery).
       3
           Appellant plead “true” to the enhancement.
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                                           Analysis


       In appellant’s sole issue on appeal, he contends the trial court erred in denying

his request that an instruction on the lesser-included offense of resisting arrest be

included in the court’s charge to the jury. We disagree.


Standard of Review


       If facts are elicited during trial that raise an issue of a lesser-included offense and

a charge is properly requested, then a charge on the issue must be given. Ross v.

State, 861 S.W.2d 870, 877 (Tex.Crim.App. 1992). The Court of Criminal Appeals has

established a two-pronged test to determine whether a defendant is entitled to a charge

on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007);

Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). See also Aevalo v. State,

943 S.W.2d 887, 889 (Tex.Crim.App. 1997); Royster v. State, 622 S.W.2d 442

(Tex.Crim.App. 1981). First, the lesser-included offense must be included within the

proof necessary to establish the offense charged, and, second, some evidence must

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

he is guilty only of the lesser offense. Hall, 225 S.W.3d at 535-36; Skinner, 956 S.W.2d

at 543, citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). See also

Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998).


       The first step of our analysis is one of law. Hall, 225 S.W.3d at 535. The Code

of Criminal Procedure defines an offense as a lesser-included offense if: (1) it is

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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).           See also Hall, 225

S.W.3d at 536, Irving v. State, 176 S.W.3d 842, 845 (Tex.Crim.App. 2005).           Whether

an offense falls within this definition does not depend on the evidence to be produced at

trial, but rather is performed before trial by comparing the elements of the offense as

they are alleged in the indictment or information with the elements of the potential

lesser-included offense. Hall, 225 S.W.3d at 535-36.


       The indictment alleged that appellant, on that occasion, “did then and there

intentionally, knowingly, and recklessly cause bodily injury to [the officer] by striking the

said [officer] with defendant’s hand and the said [officer] was then and there a public

servant lawfully discharging an official duty, and the said defendant knew the said

[officer] was a public servant.” Conviction of the offense as charged thus required the

State to prove appellant intentionally, knowingly or recklessly caused bodily injury to the

officer, knowing her to be a public servant lawfully discharging an official duty. Tex.

Penal Code Ann. § 22.01(a), (b)(1) (West 2009).


       By contrast, the elements of the offense of resisting arrest are that a person (1)

intentionally prevents or obstructs; (2) a person he knows is a peace officer; (3) from

                                             4
effecting an arrest of the actor; (4) by using force against the peace officer. Dunklin v.

State, 194 S.W.3d 14, 22 (Tex.App.--Tyler 2006, no pet.) (citing Tex. Penal Code Ann. §

38.03(a) (West 2003)). Assault on a public servant is a felony offense. Tex. Penal Code

Ann. § 22.01(b) (West 2009). Resisting arrest is typically a misdemeanor offense. Tex.

Penal Code Ann. § 38.03(c) (West 2009).


       The court in Gilmore v. State, 44 S.W.3d 92, 95-96 (Tex.App.—Beaumont 2001,

pet. ref’d), addressed a contention like that made by appellant here.        Although the

court’s analysis does not entirely follow the cognate pleadings approach later adopted

by the Court of Criminal Appeals in Hall, 225 S.W.3d at 535-36, its analysis is

instructive. Comparing the elements of the alleged lesser-included offense of resisting

arrest with those of assault of a public servant, the court noted first that the assault

offense permitted conviction on a knowing or reckless culpable mental state whereas

resisting arrest proscribes only intentional conduct. Gilmore, 44 S.W.3d at 96. The

same can be said of the assault of which appellant was convicted.


       The court in Gilmore also noted that resisting arrest requires proof the peace

officer was in the process of effecting an arrest, search, or transportation of the actor

when the actor uses "force" to "prevent or obstruct" the attempted conduct; in contrast,

the assault offense requires the public servant be "lawfully discharging an official duty,"

which may or may not involve an arrest. Gilmore, 44 S.W.3d at 96.


       Because resisting arrest thus requires proof of facts different than those required

to prove the charged assault, resisting arrest would not have been a proper lesser-

included offense of assaulting a public servant. See Dunklin, 194 S.W.3d at 22 (trial

                                            5
court did not err by denying requested instruction on resisting arrest during trial on

aggravated assault of public servant). Appellant has failed to satisfy the first prong of

the test. It follows, then, that the trial court did not err by denying appellant’s requested

jury instruction on the lesser offense of resisting arrest.


       We overrule appellant’s sole issue and affirm the judgment of the trial court.




                                                          James T. Campbell
                                                               Justice




Do not publish.




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