COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-454-CR
ERIC EMIL WILLIAMS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Eric Emil Williams of attempted sexual assault,
found the habitual offender allegations true, and assessed his punishment at
fifty-seven years’ confinement. The trial court sentenced him accordingly. In
two points, Appellant contends that he was denied effective assistance of
counsel at trial and that the trial court erred by denying his request for a lesser
1
See T EX. R. A PP. P. 47.4.
included offense instruction. Because we hold that Appellant has not met his
burden of proving ineffective assistance and that the trial court did not err by
refusing to give a lesser included offense instruction on assault bodily injury, we
affirm the trial court’s judgment.
In his first point, Appellant contends that he received ineffective
assistance at trial because at the guilt phase, his trial counsel referred to
Appellant’s criminal record, elicited testimony about it, and opened the door and
failed to object to the prosecutor’s questioning witnesses about it. This issue
was not presented in a motion for new trial. Accordingly, Appellant’s trial
counsel’s strategy, if any, for allowing that information before the jury cannot
be determined. Based on the applicable standard of review, 2 we hold that
Appellant has not met his burden of proving ineffective assistance of counsel.
We overrule his first point.
In his second point, Appellant contends that the trial court erred by
denying his requested lesser included offense instruction on assault bodily
injury. We use a two-step analysis to determine whether an appellant was
2
See Strickland v. Washington, 466 U.S. 668, 687-90, 694, 104 S. Ct.
2052, 2064-66, 2068 (1984); Thompson v. State, 9 S.W.3d 808, 812-14
(Tex. Crim. App. 1999).
2
entitled to a lesser included offense instruction. 3 First, the lesser offense must
come within article 37.09 of the code of criminal procedure.4 “An offense is
a lesser included offense if . . . it is established by proof of the same or less
than all the facts required to establish the commission of the offense charged.” 5
This inquiry is a question of law.6 It does not depend on the evidence to be
produced at the trial but is performed 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. 7
The indictment provides that Appellant
did THEN AND THERE INTENTIONALLY, WITH THE SPECIFIC
INTENT TO COMMIT THE OFFENSE OF SEXUAL ASSAULT OF [the
complainant], DO AN ACT, TO-WIT: PINNED [the complainant]
AGAINST THE WALL WITH HIS ARM, OR PULLED DOWN HIS
PANTS EXPOSING ANY PART OF HIS GENITALS TO [the
complainant]; OR ATTEMPTED TO SPREAD THE LEGS OF [the
complainant], WHICH AMOUNTED TO MORE THAN M ERE
3
Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau
v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, 510 U.S.
919 (1993).
4
T EX. C ODE C RIM . P ROC. A NN. art. 37.09 (Vernon 2006); Moore v. State,
969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
5
T EX. C ODE C RIM. P ROC. A NN. art. 37.09(1); see also Hall, 225 S.W.3d at
536.
6
Hall, 225 S.W.3d at 535.
7
Id. at 525, 535-36.
3
PREPARATION THAT TENDED BUT FAILED TO EFFECT THE
COMMISSION OF THE OFFENSE INTENDED.
Assault bodily injury requires bodily injury; 8 attempted sexual assault as alleged
in the indictment does not.9 The evidence in the record that Appellant inflicted
bodily injury on the complainant is immaterial to our determination. 1 0
Accordingly, we hold that assault bodily injury is not a lesser included offense
of attempted sexual assault, and the trial court did not err by refusing to give
the requested instruction. We overrule Appellant’s second point.
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL F: DAUPHINOT, J.; CAYCE, C.J.; and MCCOY, J.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 6, 2008
8
T EX. P ENAL C ODE A NN. § 22.01(a)(1) (Vernon Supp. 2007).
9
See id. § 15.01(a) (Vernon 2003), § 22.011(a)(1), (b) (Vernon Supp.
2007).
10
See Hall, 225 S.W.3d at 525, 535-36.
4