IN THE
TENTH COURT OF APPEALS
No. 10-01-233-CR
WILLIE FRANK CAMPBELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 2000-956-C
DISSENTING OPINION
The majority reverses Willie Campbell’s conviction because the trial court failed to charge the jury with a lesser-included offense. I disagree with the majority’s determination that resisting arrest is a lesser-included offense of the offense with which Campbell was charged.
To establish that a defendant was entitled to a charge on a lesser-included offense, the defendant must show that the offense for which a charge is requested (1) is a lesser-included offense and (2) there was evidence that, if guilty of an offense, he was guilty only of the lesser-included offense. Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). 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. Tex. Code Crim. Proc. Ann. art 37.09 (1) (Vernon 1981) (emphasis added). “Facts required” means the evidence legally required to prove the elements of the charged offense. Jacob v. State, 892 S.W.2d 905, 908 (Tex. Crim. App. 1995).
Campbell was charged with aggravated assault in that he intentionally or knowingly threatened Benjamin Rush, a police officer, with imminent bodily injury and used or exhibited a deadly weapon. Proof of resisting arrest requires proof that a person intentionally prevented or obstructed a person he knew to be a peace officer from effecting an arrest by using force against the officer. See Tex. Pen. Code Ann. § 38.03(a) (Vernon 1994). If the person uses a deadly weapon, the offense is a third degree felony. Id. at (d).
In comparing the two offenses, the charge against Campbell, as charged in the indictment, does not require proof that he used force against Officer Rush. It only required proof that Campbell threatened Rush with imminent bodily injury. The use of force is not a fact that is the same or less than the required element of threat with imminent bodily injury. See Miller v. State, 86 S.W.3d 663, 665 (Tex. App.—Amarillo 2002, pet. ref’d). See also Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995). Thus, resisting arrest is not a lesser-included offense of aggravated assault of a peace officer by the threat of imminent bodily injury. Campbell’s first issue should be overruled, and his conviction should be affirmed.
Because the majority holds otherwise, I respectfully dissent.
TOM GRAY
Justice
Dissenting opinion issued and filed January 8, 2003
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