In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00378-CR
EDRICK DUNN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2011-432,529, Honorable Jim Bob Darnell, Presiding
August 11, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Edrick Dunn appeals his conviction for the offense of aggravated robbery and
resulting sentence of fifty years confinement.1 By a single issue, he maintains the trial
court abused its discretion by rejecting his request for a lesser-included offense
instruction. We affirm.
1
TEX. PENAL CODE ANN. § 29.03(a)(3)(A) (West 2011). An offense under this section is a felony
of the first degree. In addition to the primary offense, the jury also found the allegations of an
enhancement paragraph to be true.
BACKGROUND
Appellant does not challenge the sufficiency of the evidence supporting his
conviction; therefore, we will recite only so much of the evidence as is necessary to an
understanding of the issue presented. The criminal charges in question arose from
Appellant jerking a purse from the hands of a seventy year old woman as she walked to
a convenience store, thereby causing her to fall and sustain minor injuries. Testimony
and photographs admitted showed the victim sustained minor injuries, including small
abrasions to her right forearm, hand and finger. The victim also complained of injury to
her knees and feet. Immediately following the incident, the victim was offered medical
attention, but she turned it down. The next day she went to a doctor, who removed
three moles from her neck that had been scraped when the purse was pulled away.
At the conclusion of the guilt-innocence phase of trial, Appellant requested the
inclusion of an instruction on the lesser-included offense of theft of an elderly person.
The trial court denied the request, and that denial forms the basis of this appeal.
Lesser-Included Offense
In determining whether a trial court erred in denying a request for a lesser-
included offense instruction we apply a two-step analysis. Hall v. State, 225 S.W.3d
524, 535-36 (Tex. Crim. App. 2007). First, we must determine if the proof necessary to
establish the charged offense also includes the lesser offense. Cavazos v. State, 382
S.W.3d 377, 383 (Tex. Crim. App. 2012). If this threshold is met, we must then consider
whether the evidence shows that if Appellant is guilty, he is guilty only of the lesser
offense. Id.
2
Here, the indictment upon which Appellant was tried averred that he:
on or about the 7th day of September, A.D. 2011, did then and there,
while in the course of committing theft of property and with intent to obtain
or maintain control of said property, intentionally, knowingly, or recklessly
cause bodily injury to [victim], a person 65 years of age or older, by
causing the said [victim] to fall and strike the ground . . . .
This language generally tracks the offense of aggravated robbery found under
section 29.03(a)(3)(A) of the Texas Penal Code. See TEX. PENAL CODE ANN.
§ 29.03(a)(3)(A) (West 2011) (stating that a person commits the offense of aggravated
robbery if, while in the course of committing theft, he intentionally, knowingly, or
recklessly causes bodily injury to a person who is sixty-five years of age or older).
Appellant believes he was entitled to a lesser-included offense instruction
because testimony supplied by the victim “raised the question of whether the victim
suffered bodily injury or not.”2 In other words, because some evidence indicated the
victim’s injuries were minor, he contends there is evidence showing he is guilty of the
offense of theft of person, thereby warranting an instruction on that lesser-included
offense. See id. at § 31.03 (stating that a person commits the offense of theft if he
unlawfully appropriates property with intent to deprive the owner of that property).
What Appellant is missing is evidence tending to show that if he is guilty of any
offense, he is only guilty of theft. He cites us to no evidence, and we have found none,
suggesting the victim suffered no bodily injury as a result of the offense or that Appellant
did not intend to cause bodily injury when he snatched her purse from her as she
walked down the street. And, given that there was no “evidence in the record that
2
“Bodily injury” means physical pain, illness, or any impairment of physical condition. See TEX.
PENAL CODE ANN. § 1.07(a)(8) (West Supp. 2014).
3
would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the
lesser-included offense,” the trial court did not err in denying Appellant’s requested
lesser-included offense instruction. Hall, 225 S.W.3d at 536 (quoting Bignall v. State,
887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). Simply put, Appellant failed to establish the
second prong of our two-step analysis. Accordingly, we overrule Appellant’s issue.
CONCLUSION
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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