Opinion issued April 17, 2008
In The
Court of Appeals
For The
First District of Texas
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NO. 01-07-00175-CR
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HENRY LEE MEANS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 43,595
MEMORANDUM OPINION
In two points of error, appellant complains that the trial court erred by refusing to charge the jury on assault and terroristic threat as lesser-included offenses to aggravated assault with a deadly weapon. We address only the second prong of the test set out in Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)--whether there was some evidence adduced at trial to support an instruction that appellant was guilty only of (1) terroristic threat, or (2) assault. Because we conclude appellant has not met this second prong, we overrule his complaint and affirm the judgment.
Appellant was charged with intentionally and knowingly threatening the victim with imminent bodily injury by the use and exhibition of a firearm. A jury found appellant guilty of the offense as charged in the indictment and assessed punishment at fifteen years' imprisonment. Appellant filed timely notice of appeal.
Appellant did not testify at trial. Appellant's girlfriend testified that she did not see the incident. The testimony of the State's witnesses described appellant as conducting himself as alleged in the indictment. Consequently, there was no evidence to establish terroristic threat or assault as valid, rational alternatives to the charged offense. (1) See Owens v. State, No. 05-01-01060-CR, 2002 WL 1838973, at *1 (Tex. App.--Dallas August 13, 2002, no pet.) (not designated for publication) (finding no evidence to establish terroristic threat as a valid, rational alternative to aggravated assault); see also Jones v. State, 241 S.W.3d 666, 671-72 (Tex. App.--Texarkana 2007, no pet.) (finding no evidence to establish assault as a valid, rational alternative to aggravated assault.)
We overrule appellant's points of error. The judgment is affirmed.
Davie L. Wilson
Justice
Panel consists of Justices Hanks, Higley, and Wilson. (2)
Do not publish. See Tex. R. App. P. 47.2(b).
1. Appellant suggests that the failure of law enforcement to check for fingerprints on a
shotgun found in the apartment of appellant's girlfriend constitutes evidence that
appellant had not used or exhibited a deadly weapon. We find such a speculative
inference is not evidence and cannot be used to support the submission of issues
sought by appellant.
2.