                                     NO. 07-03-0035-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                        JUNE 30, 2004

                             ______________________________


                           DEMARIUS JEFFERSON, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                           _________________________________

            FROM THE 258TH DISTRICT COURT OF SAN JACINTO COUNTY;

                   NO. 8601; HONORABLE ELIZABETH COKER, JUDGE

                            _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                  MEMORANDUM OPINION


          Appellant, Demarius Jefferson, brings this appeal challenging his conviction for the

felony offense of aggravated assault and jury-assessed punishment of ten years

incarceration in the Institutional Division of the Texas Department of Criminal Justice. We

affirm.
       Appellant does not challenge the sufficiency of the evidence and a detailed recitation

of the facts giving rise to his prosecution is unnecessary. Appellant was a target in an

undercover drug investigation. In the course of an attempted buy Officer Hardy Nevill

produced $200 cash to purchase cocaine from appellant. Both appellant and Nevill drew

and pointed firearms at each other. Each testified his conduct was in response to the other

drawing a gun first. Nevill disarmed appellant who escaped when Nevill went outside to

arrest other participants. Appellant was later identified and arrested.


       Appellant was indicted for aggravated robbery. At trial, over appellant’s objection,

the court charged the jury also concerning the lesser included offense of aggravated

assault. Appellant’s counsel stated the specific basis for the objection as:


       Article [sic] 31.03(a) of the Penal Code, Theft, is the basis upon which
       Robbery is predicated, Article [sic] 29.02(a)(2), and Aggravated Robbery,
       29.03(a)(2) is predicated upon all the elements of Robbery. If you eliminate
       Theft . . . you have eviscerated the whole offense and just change[d] it into
       something it never was.


The jury found appellant guilty of that lesser included offense. Appellant’s sole issue

assigns error to inclusion of that offense in the jury charge.


       The determination whether an offense is a lesser included offense under article

37.09(1) of the Code of Criminal Procedure must be made on a case-by-case basis. Jacob

v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995). The determination is made by

comparing (1) the elements of the offense actually charged, (2) the statutory elements of

the offense sought as a lesser included offense, and (3) the proof presented at trial to show



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the elements of the charged offense. Id. at 907-08; see Day v. State, 532 S.W.2d 302, 315

(Tex.Crim.App. 1975) (op. on reh’g).


       In this case, the elements of aggravated robbery as alleged in the indictment1 were

that the defendant, at the stated time and place: (1) while in the course of committing theft

of property and with intent to obtain or maintain control of the property; (2) intentionally or

knowingly threatened or placed the victim in fear of imminent bodily injury or death; and (3)

then and there exhibited or used a deadly weapon in the form of a firearm. See Tex. Penal

Code ann. § 29.02 (Vernon 2003).          As applicable here, the statutory elements of

aggravated assault are that the defendant (1) intentionally or knowingly threatened another

with imminent bodily injury, and (2) used or exhibited a deadly weapon. Tex. Penal Code

ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon 2003). Appellant does not deny that the evidence

presented in the State’s effort to prove him guilty of the charged offense of aggravated

robbery also of necessity demonstrated his guilt of aggravated assault.2


       Appellant’s argument is that aggravated assault cannot be a lesser included offense

of aggravated robbery because the offense of assault does not require the element of

unlawful appropriation of property with intent to deprive the owner of it that is required to

prove the offense of robbery. He cites Earls v. State, 707 S.W.2d 82 (Tex.Crim.App. 1986),

as establishing that theft is a lesser included offense of robbery, and quotes the statement


       1
      The indictment contained two counts, charging appellant, in identical language, with
aggravated robbery of officer Nevill and a second person present.
       2
       Officer Nevill and the other victim both testified they were in fear of being shot.
Appellant also took the stand and, on cross examination, acknowledged that his actions
threatened and placed both victims in fear of their lives or bodily injury.

                                              -3-
in that case that theft was “necessarily included in the alleged elements of the greater

offense of robbery” when the indictment alleged “in the course of committing theft.” Id. at

84-85. Earls does not support a contention that theft is an essential element of any lesser

included offense of robbery. The Earls opinion notes, in the sentence following that just

quoted, that robbery “requires an additional element.” Id. at 85. Earls does not suggest

that additional element cannot form the basis of a lesser included offense.


       The Day opinion contains a discussion that a purported lesser included offense must

bear a relationship to the charged offense. 532 S.W.2d at 315-16; see Cunningham v.

State, 726 S.W.2d 151, 153 (Tex.Crim.App. 1987). Appellant essentially argues that the

offense of aggravated assault categorically does not bear a sufficient relationship to that

of aggravated robbery to enable the former offense to be viewed as a lesser included

offense of the latter. Appellant’s counsel argued at trial eliminating the element of theft

would eviscerate the offense of robbery “and just change it into something it never was.”

Appellant’s argument ignores the Court of Criminal Appeals’ jurisprudence characterizing

the offense of robbery as an “assaultive offense” since its re-definition in the 1974 penal

code, rather than an aggravated form of theft as under common law. See Ex parte

Hawkins, 6 S.W.3d 554, 560 (Tex.Crim.App. 1999) (for double jeopardy analysis, “robbery

is a form of assault”); Crank v. State, 761 S.W.2d 328, 350 (Tex.Crim.App. 1988)

(“gravamen of robbery is the assaultive conduct and not the theft”). Judge Johnson’s

concurring opinion in Hawkins, while stating the majority opinion goes too far in saying that

robbery is a form of assault, notes that assault and robbery have elements in common and




                                            -4-
that under a Blockburger3 (double jeopardy) analysis, assault is considered a lesser-

included offense of robbery. Hawkins, 6 S.W.3d at 563 (Johnson, J., concurring).


       The trial court did not err in treating aggravated assault as a lesser included offense

of aggravated robbery in this case. We overrule appellant’s issue and affirm the judgment

of the trial court.


                                                   James T. Campbell
                                                       Justice



Do not publish.




       3
           Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

                                             -5-
