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NUMBER 13-05-238-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HAIM SILBER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 232nd District Court
of Harris County, Texas.
MEMORANDUM OPINION [1]
Before Justices Hinojosa, Yañez and Castillo
Memorandum Opinion by Justice Castillo
A jury convicted appellant Haim Silber of indecency with a child and assessed punishment at a nine-year term in the Texas Department of Criminal JusticeBInstitutional Division, probated for five years, and imposed a $10,000 fine. By one issue, Silber contends that the trial court erred by refusing to charge the jury on misdemeanor assault as a lesser‑included offense. We affirm.
I. Background
The indictment alleged that, on or about March 15, 2003, Silber unlawfully, intentionally, and knowingly engaged in sexual contact[2] with K.B., a child under the age of seventeen years and not his spouse, with the intent to gratify his sexual desire. Fourteen years old at the time of trial, K.B. testified that Silber touched her inappropriately. Silber testified, denied sexual contact with the child, and admitted to non-sexual touching of her back. On appeal, Silber concedes that there is no dispute that he touched the complainant, asserting that what is in dispute is where he touched her and how. He asserts that a misdemeanor assault charge is a lesser-included offense of the charge of indecency with a child. The State disagrees on grounds that indecency with a child requires the State to prove that the accused acted with the intent to arouse or gratify the sexual desire of some person, not that he knew or should have reasonably believed that the complainant would regard his touching as offensive or provocative, the culpable mental state for misdemeanor assault.
II. Lesser-Included Offense
By his sole issue, Silber asserts that the trial court reversibly erred in denying his request for a jury charge instruction on the lesser-included offense of assault. The State counters that the assault Silber admits he committed by touching the child's back is not a lesser-included offense of the charged offense and thus, the trial court properly denied the requested instruction.
A. Scope and Standard of Review
We review de novo a trial court's refusal to include a lesser-included offense in the jury charge to see if there is some evidence establishing the lesser-included offense. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. 1993). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). We review all of the evidence presented at trial to determine if the trial court erred by failing to give a charge on a lesser-included offense. Rousseau, 855 S.W.2d at 673. When reviewing whether a trial court erred by refusing to include an instruction on a lesser-included offense in the jury charge, the credibility of the evidence and whether it conflicts with other evidence must not be considered. See Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).
B. Applicable Law
A defendant is entitled to a lesser‑included offense instruction in the jury charge if (1) the requested charge is a lesser‑included offense of the offense charged, and (2) there is some evidence that if the defendant is guilty, he is guilty only of the lesser offense. Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005). Article 37.09 of the Texas Code of Criminal Procedure provides, among other things, that an offense is a lesser‑included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, or (2) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. Tex. Code Crim. Proc. Ann. art. 37.09(1), (4) (Vernon 1981).[3]
C. Discussion
Because the trial court denied Silber's request for an instruction on assault, we determine first whether assault is within the proof necessary to establish indecency with a child. This first prong requires that a lesser-included offense be included within the proof necessary to establish the offense charged. Pickens, 165 S.W.3d at 679. A person commits the offense of assault if, among other things, the accused intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. ' 22.01(a)(3) (Vernon Supp. 2005). A person commits the offense of indecency with a child by engaging in sexual contact with the child. Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003). The offense of indecency with a child requires proof of the accused's intent to engage in the proscribed contact rather than an intent to bring about any particular result. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.BCorpus Christi 2000, pet. ref'd).
Silber requested a lesser‑included offense instruction based on facts not required to establish the commission of the offense charged. In other words, the conduct constituting the lesser‑included offense for which he requested an instruction is different from the conduct which was alleged in the indictment for indecency with a child. The indictment alleged that Silber committed the offense by sexual contact. Silber sought an instruction for the offense of simple assault stemming from the conduct of touching the child's back in a non-sexual way. This offense fails to meet the requirements of article 37.09(1) of the Texas code of criminal procedure because the same facts or less than the same facts required to prove indecency with a child are not required to prove the assault offense. Tex. Code Crim. Proc. Ann. art. 37.09(1). In this case, proof that Silber touched K.B.'s back is not required to prove indecency with a child by sexual contact with the child. A trial court is not required to instruct a jury on a lesser-included offense where the conduct establishing the offense is not "included" within the conduct charged; namely, within the facts required to prove the charged offense. See Irving, 176 S.W.3d at 842; Shea v. State, 167 S.W.3d 98, 106 (Tex. App.BWaco 2005, pet. ref'd). The indecency charge required the State to prove that Silber acted with intent to arouse or gratify the sexual desire of some person, not that he knew or should have reasonably believed that the complainant would regard his touching as offensive or provocative. See Shea, 167 S.W.3d at106. Even though the same evidence may be probative of both elements, they are distinctive elements. Id. (citing Ramos v. State, 981 S.W.2d 700, 701 (Tex. App.BHouston [1st Dist.] 1998, no pet.)). Thus, the differences in the requisite elements of both offenses necessarily lead to the conclusion that assault by offensive or provocative contact is not a lesser‑included offense of indecency with a child by sexual contact. Id.
Because the requested charge is not a lesser-included offense of the offense charged, we conclude the first part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is not satisfied. See Pickens, 165 S.W.3d at 679. Thus, a charge on assault was not required. Accordingly, the trial court did not err in failing to give the lesser-included offense instruction. Hayward v. State, 158 S.W.3d 476, 480 (Tex. Crim. App. 2005). Because the first part of the test is not satisfied, we do not reach the second part of the test. Pickens, 165 S.W.3d at 679.
III. Conclusion
The proof required to establish assault by offensive or provocative contact is different, not less, than the proof required to establish indecency with a child by contact. Shea, 167 S.W.3d at 106. Thus, the misdemeanor assault charge is not a lesser‑included offense. See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981); Ramos, 981 S.W.2d at 70. We overrule Silber's sole issue presented and affirm.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. 47.2(b)
Memorandum Opinion delivered and filed this
the 16th day of February, 2006.
[1] See Tex. R. App. P. 47.2, 47.4.
[2]The penal code defines "sexual contact" as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Tex. Pen. Code Ann. ' 43.01 (Vernon 2003).
[3]Thus, the test for submission of a jury charge requires that (1) the lesser‑included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense, or, in other words, the defendant is not guilty of the greater offense but is guilty of the lesser. Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005) (citing Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003); Rousseau v. State, 855 S.W.2d 666, 672 (Tex. 1993)).