In The
Court of Appeals
For The
First District of Texas
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NO. 01-00-01222-CR
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CHIANTI MARCELLA JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 837,864
DISSENTING OPINION
I dissent.
Following is the rule regarding entitlement to "lesser-included offense" language in the jury charge:
If a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required.
Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994); Caicedo v. State, 981 S.W.2d 817, 819 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd) (emphasis in originals).
In the present case, I agree with the majority that "unauthorized use of a motor vehicle may be a lesser-included offense of aggravated robbery." Where we diverge is with regard to the second prong of the controlling test: whether some evidence exists in the record that would permit a rational jury to find that if guilty, the defendant is guilty of only the lesser offense. See Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996).
A jury, as the sole trier of fact, is entitled to selectively believe all or part of the conflicting testimony introduced by either side at trial. See Bignall, 887 S.W.2d at 24. Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of the issue. See Schweinle, 915 S.W.2d at 18.
In the present case, there was evidence that, two days after complainant's car was stolen, appellant was found driving the complainant's car. There was evidence that appellant had nothing to do with the robbery; rather, according to appellant, he had purchased the car for $500.00 a few days before he was stopped by police. On cross-examination of the complainant, appellant's counsel vigorously attacked the complainant's identification of appellant as the carjacker.
The issue presented, therefore, is whether the record would permit a rational jury to find that, if guilty of anything, appellant was guilty only of "unauthorized use of a motor vehicle."
The complainant testified that she had not given appellant consent to operate her car. Such evidence, by itself, is sufficient to support a finding that appellant knew he did not have the complainant's effective consent to operate the car. See McQueen v. State, 781 S.W.2d 600, 604-05 (Tex. Crim. App. 1989); White v. State, 844 S.W.2d 929, 931-32 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd.). Further, the jury could have disbelieved appellant's statement that he purchased the vehicle, concluding instead that appellant was aware he was driving a stolen vehicle.
The key to the appropriate analysis is that the jury, as the sole trier of fact, was entitled to selectively believe all or part of the evidence introduced by either side. See Bignall, 887 S.W.2d at 24. The jury could have reasonably concluded that the complainant was mistaken in her identification of appellant as the carjacker, and it could also have reasonably concluded that appellant, even though he did not steal the car, was aware he was driving a stolen car. Thus, the evidence was sufficient to entitle appellant to inclusion in the jury charge of the language covering the lesser-included offense of unauthorized use of a motor vehicle.
Accordingly, the trial court erred when it overruled appellant's request that the jury charge include the lesser-included-offense language. Under the well established standard set out in Almanza and Arline, such error mandates reversal of the conviction. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
We should reverse and remand the case to the trial court. (1)
Margaret Garner Mirabal
Justice
Panel consists of Justices Mirabal, Hedges, and Jennings.
Justice Mirabal dissenting.
Publish. Tex. R. App. P. 47.
1. Because I would sustain appellant's second point of error, I would not reach
the merits of appellant's first point of error. My silence as to the majority's
disposition of the first point of error does not indicate my agreement with the
analysis or the result.