Affirmed and Memorandum Opinion filed October 6, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00337-CV
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CORNELL LYNN HOSEA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Court Cause No. 07-11-11120-CR
M E M O R A N D U M O P I N I O N
Appellant Cornell Lynn Hosea appeals his conviction for aggravated assault with a deadly weapon. In two issues, appellant contends the trial court erred in refusing to instruct the jury on a lesser-included offense and in refusing to grant appellant=s motion for continuance. We affirm.
I. Factual and Procedural Background
Deputy Juan Chapa, an officer with the Montgomery County Constable=s Office, responded to a call for assistance from another officer making an arrest on a highway. At the scene, Deputy Chapa observed a female driver and a male passenger, appellant; however, Deputy Chapa did not speak with them. The officers ended the traffic stop, and the driver and appellant were permitted to leave the scene. The driver=s vehicle, however, required tow service, and Deputy Chapa called for a wrecker.
Wrecker driver Stanley Cook arrived at the scene in response to the call for a tow and towed the vehicle to a storage lot. As Cook was storing the vehicle, two men walked into the lot. When Cook informed the men that they were not allowed on the premises, one of the men pointed a gun at Cook=s face and threatened to kill him if he moved. The other man then retrieved something from the vehicle, and the two men left the premises.
Cook called the police, and Deputy Chapa responded. Cook gave Deputy Chapa a description of the men. Based on the description, Deputy Chap believed one of the men could be appellant, whom he had encountered earlier at the highway scene. Deputy Chapa called the station and requested a photo line-up that included a photograph of appellant from a prior booking. From the photo line-up, Cook identified appellant as the man who threatened him.
Based on Cook=s identification, Deputy Chapa located appellant nearby. Deputy Chapa did not recover a gun. Appellant agreed to accompany Deputy Chapa to the police station for further questioning. Cook met Deputy Chapa at the police station, where Cook spotted the appellant and confirmed that appellant was the man who threatened him.
Appellant was charged with aggravated assault with a deadly weapon to which he pleaded Anot guilty.@ On the day voir dire was to commence, appellant moved for a continuance on the basis that the photos used in the line-up had not been turned over to the defense for inspection. Appellant argued that the photos were important to establishing his trial strategy before the voir dire process. The State asserted that police had not yet provided the photos to the State, but that the photos would be available to appellant prior to the presentation of evidence. In response to the trial court=s questions, appellant=s counsel acknowledged that identification was part of his trial strategy.
The trial court denied the motion for continuance and instructed the parties not to address photo identification during voir dire. However, the State agreed to allow appellant to refer to identification issues when addressing the venire panel. The court then ruled that appellant would have the opportunity to inspect the photos before any evidence was offered at trial.
At trial, Cook testified about his encounter with appellant. Cook described how appellant pointed a gun at his face and threatened to kill him. Although Cook believed appellant had a real gun, Cook admitted on cross-examination that the gun could have been a toy gun or a BB gun.
At the close of evidence, the court reviewed a proposed jury charge. Appellant urged that there was an issue as to whether an actual gun was involved and therefore requested that a lesser-included offense of assault by threat be included. The State objected to its inclusion and the trial court excluded this lesser-included offense from the jury charge. The jury found the appellant guilty of aggravated assault with a deadly weapon. Appellant pleaded Atrue@ to an enhancement paragraph, and the trial court sentenced appellant to 22.5 years= confinement.
II. Analysis
A. Did the trial court abuse its discretion when it excluded the lesser-included offense of simple assault by threat in the jury charge?
In his first issue, appellant asserts that the lesser-included offense of assault by threat was erroneously excluded from the jury charge, which left the jury with the option of convicting appellant of aggravated assault or finding him not guilty.
We review the trial court=s decision regarding a lesser-included offense charge for an abuse of discretion. Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005). In making this determination, we review all of the evidence presented at trial and consider whether any evidence exists in the record that would permit a rational jury to find that the defendant is guilty of only the lesser included offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992) (per curiam); King v. State, 17 S.W.3d 7, 21 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994); King, 17 S.W.3d at 21. It is not enough for the jury to disbelieve evidence pertaining to the greater offense; there must be some evidence directly germane to the lesser-included offense for the fact-finder to consider before an instruction on the lesser-included offense is warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003); Dobbins v. State, 228 S.W.3d 761, 768 (Tex. App.CHouston [14th Dist.] 2007, pet. dism=d).
An offense is a lesser-included offense if Ait 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 (Vernon 2008). A defendant is entitled to a jury instruction on a lesser offense in the jury charge under article 37.09 if (1) the elements of the lesser offense are contained within the proof necessary to establish the charged offense as pleaded in the State=s indictment, and (2) the record contains some evidence by which a jury rationally could conclude that if the defendant is guilty, the defendant is guilty of only the lesser offense and not the greater one. See Segundo v. State, 270 S.W.3d 79, 90 (Tex. Crim. App. 2008); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007).
To obtain a conviction for simple assault by threat, the State must have established that the accused intentionally or knowingly threatened another with imminent bodily injury. Tex. Penal Code Ann. ' 22.01(a)(2) (Vernon 2003). The key distinction between simple assault by threat, as requested by appellant, and aggravated assault is that an aggravated assault charge requires the State to establish that appellant used a deadly weapon during the commission of the assault, whereas a charge of simple assault by threat does not. See Tex. Penal Code Ann. '' 22.01(a)(2), 22.02(a)(2), 22.02(b)(2); Irving v. State, 176 S.W.3d 842, 845B46 (Tex. Crim. App. 2005). Neither party disputes that the elements of the simple assault charge, as requested by appellant, are contained within the proof necessary to establish the charged offense of aggravated assault, as required in the first prong of the analysis, because simple assault constitutes a lesser-included offense of aggravated assault. See Irving, 176 S.W.3d at 845B46 (providing that simple assault is a lesser-included offense of aggravated assault when the conduct constituting the simple assault is the same conduct alleged in the aggravated assault charge); Dobbins, 228 S.W.3d at 769 (confirming that a simple assault charge constituted a lesser-included offense of an aggravated assault charge). Therefore, under the second prong, in order for appellant to have been entitled to a charge on simple assault, the record must contain some evidence directly germane to the lesser-included offense for a rational fact-finder to conclude that appellant did not use a deadly weapon in committing the assault. See Dobbins, 228 S.W.3d at 769.
Appellant asserts that Cook=s testimony contains some evidence to raise a fact issue as to whether a gun was involved during the assault. Cook testified on direct examination about how appellant threatened to kill him and pointed a gun at him. However, appellant points to Cook=s testimony on cross-examination that the gun could have been a toy gun or BB gun. Appellant asserts that Cook=s testimony coupled with the State=s failure to recover a gun from appellant is sufficient to constitute more than a scintilla of evidence that appellant did not use a gun during the assault.
When, as in this case, a witness concedes the possibility that a gun could have been a toy gun, the concession is regarded as impeachment evidence. See Wilhoit v. State, 638 S.W.2d 489, 499 (Tex. Crim. App. 1982) (holding that complainant=s testimony as to whether defendant used a real or fake gun during an alleged aggravated rape operated as impeachment evidence and did not entitle defendant to a jury charge with the lesser-included offense of rape). However, the testimony does not operate as direct, substantive evidence of a lesser-included offense that a deadly weapon was not involved in the assault. See id. at 499. Cook=s acknowledgment on cross-examination that the gun could have been a toy gun operated as impeachment evidence against Cook=s credibility, but not as direct substantive evidence that a gun was not used. See Hampton, 109 S.W.3d at 441 (concluding that no affirmative evidence of the lesser-included offense was presented for the jury=s consideration to warrant an instruction when only evidence supporting proposition that no knife was used was the State=s failure to recover a knife); Wilhoit, 638 S.W.2d at 499. Absent evidence affirmatively positing that a gun was not used, the jury could not have convicted appellant on the lesser offense. See Dobbins, 228 S.W.3d at 769. The record contains no evidence directly germane to the lesser-included offense that would warrant a jury instruction on the lesser-included offense of simple assault. See id. (holding complainant=s testimony insufficient to warrant an instruction of the lesser-included offense of simple assault with the charged offense of aggravated assault). Therefore, the trial court did not abuse its discretion in excluding the lesser-included offense from the jury charge. Id. Accordingly, we overrule appellant=s first issue.
B. Did the trial court abuse its discretion in denying appellant=s motion for continuance?
In his second issue, appellant asserts that the trial court abused its discretion in denying his motion for continuance. Appellant sought the continuance on the day of voir dire, complaining that the State had not yet fully complied with the trial court=s discovery order by producing the photographs used in the photo line-up presented to Cook. According to appellant, the lack of discovery left him inadequately prepared to begin voir dire because the unproduced photos related to trial strategy. Appellant asserts that as a result of the trial court=s denial, he was unable to question the venire panel and intelligently use his peremptory strikes consistent with his trial strategy that included issues of identification.
When a party fails to disclose evidence under a court order, and such failure is not willful, one available remedy is to grant a continuance. State v. LaRue, 152 S.W.3d 95, 100 (Tex. Crim. App. 2004). We review a trial court=s denial of a motion for continuance for an abuse of discretion. Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996). An abuse of discretion occurs when a court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). To establish that the trial court abused its discretion in denying a motion for continuance, an accused must show specific prejudice to his defense. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). Examples of specific prejudice include unfair surprise, an inability to effectively cross-examine a witness, and an inability to elicit crucial testimony from potential witnesses. Janecka, 937 S.W.2d at 468.
Appellant sought the continuance on the basis that without the photos, he was inadequately prepared for voir dire. When, as in this case, an appellant contends that the denial of continuance rendered him unable to adequately prepare for trial, appellant must establish specific prejudice to his cause arising from the court=s ruling. Heiselbetz v. State, 906 S.W.2d 500, 511B512 (Tex. Crim. App. 1995). The bare assertion that counsel did not have adequate time to conduct pre-trial activities, absent a showing of specific and serious harm to the defense, is insufficient to establish abuse of discretion. Id.
The record reflects that, when questioned by the trial court prior to voir dire, appellant acknowledged that he already knew his trial strategy would include raising issues as to identification. See Renteria, 206 S.W.3d at 699 (affirming a trial court=s denial of continuance even though the State delayed production of gang-related evidence because appellant admitted he knew the murder was gang-related). Appellant does not indicate how he would have altered his voir dire had he been able to inspect the photographs, especially when considering that the trial court noted appellant could not discuss specific facts about the photo line-up in voir dire. See generally Lydia v. State, 109 S.W.3d 495, 497 (Tex. Crim. App. 2003) (setting forth general rule that an attorney cannot attempt to bind a venire member to a verdict based on a hypothetical set of facts). The record reflects that appellant inspected the photos before the presentation of evidence and extensively questioned two of the State=s key witnesses about the photo line-up on cross-examination. See Janecka, 937 S.W.2d at 468 (determining no specific prejudice was shown warranting a continuance when appellant failed to demonstrate inability to effectively cross-examine a witness or when appellant was unable to demonstrate any unfair surprise during trial stemming from limited time to inspect evidence prior to trial). Finally, the record also reflects that appellant elicited testimony from two of the State=s witnesses who testified that the photo line-up was potentially unfair. See id. (determining no specific prejudice was shown warranting a continuance when appellant failed to demonstrate inability to elicit crucial testimony from potential witnesses). On this record, appellant has not demonstrated specific prejudice to his defense arising from the trial court=s denial of the motion for continuance. See Janecka, 937 S.W.2d at 468; Heiselbetz, 906 S.W.2d at 512 (holding that the trial court did not abuse its discretion by denying a motion for continuance because appellant did not allege that he was unfairly surprised or unable to effectively cross-examine any witnesses in order to demonstrate specific prejudice from the adverse ruling). Therefore, the trial court did not abuse its discretion in its denial of continuance. See Heiselbetz, 906 S.W.2d at 512. Accordingly, we overrule appellant=s second issue.
Having overruled each of appellant=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Chief Justice Hedges and Justices Yates and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).