Opinion issued August 14, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00642-CR
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MOHAMMUD NANGURAI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1372694
OPINION
A jury convicted appellant Mohammud Nangurai of assault, a third-degree
felony, see TEX. PENAL CODE ANN. § 22.01(b)(2) (West Supp. 2013), and it
assessed punishment at five years in prison. See id. § 12.34(a) (West 2011). On
appeal, Nangurai contends that the trial court erred by denying his request for an
instruction on the lesser-included offense of misdemeanor assault. The State
concedes error in the trial court’s failure to give the requested instruction, but
argues on appeal that Nangurai was nevertheless not harmed by the error.
We reverse and remand.
Background
Two Houston Police Department officers responded to a 9-1-1 report of a
woman being assaulted in an apartment. When they arrived, they noticed that a
window was broken, and they heard a woman inside screaming for help. After the
officers began kicking the door in an attempt to gain entry, Nangurai opened it,
dropped to the ground, and was handcuffed. The complainant, who was naked
from the waist down, crawled out of the apartment and curled into a fetal position.
She was screaming, crying, shaking, and “terrified.”
The complainant and Nangurai lived together in an apartment with their two-
month-old daughter, who had spent the prior night with the complainant’s mother.
The complainant told the officers that she and Nangurai, whom she referenced as
her “husband,” had attended a party the previous night and returned home in the
early morning. She told them that Nangurai became angry when she refused to
have sex with him, and he beat her with his fists.
The complainant declined emergency medical attention at that time, but she
later went to the hospital at her mother’s urging. Medical records showed that the
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complainant reported that she had been assaulted by her “partner” and “hit all
over.” The complainant and her infant daughter stayed with the complainant’s
mother for nearly two weeks after the incident. The complainant’s mother testified
that the complainant told her Nangurai beat her: “She said that she was laying on
her back and he was sitting on her and he was punching her face and when she
covered her face, he bit the hands with the teeth.”
Nangurai was arrested and charged with felony assault-family violence
based on a prior conviction for assault allegedly committed against a person with
whom he had a dating relationship. At trial, police officers and neighbors described
the events that led to Nangurai’s arrest. One officer testified that Nangurai and the
complainant were the only people in the apartment when they arrived. In addition,
pictures of the complainant’s injuries, which had been taken by her mother while
she recovered from the assault, were admitted into evidence. These pictures
showed bruising, swollen and blackened eyes, and a swollen lip.
With respect to the prior assault case, the State introduced an order deferring
adjudication, showing that Nangurai pleaded guilty to assault, as well as a jail card
referencing the same case number, showing a release date four months after
deferred adjudication had been scheduled to end, suggesting that his deferred
adjudication had been revoked. A fingerprint expert testified that Nangurai was the
same person who was convicted of the prior crime. However, the deferred-
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adjudication order from the prior assault identified the offense as “assault,” and it
made no mention of family violence. In the preprinted portion of that order, which
provided options for affirmative findings, the court had circled “N/A” as to “family
violence.” However, Angela Amira, the complainant from the prior assault,
testified that she and Nangurai were in a dating relationship at the time of that
assault.
The complainant testified for Nangurai, denying that he had assaulted her.
She testified instead that she tripped and fell over a chair and that Nangurai had
been helping her up when the police arrived. Nangurai gave similar testimony. He
also testified that he had previously been convicted of assault but that he and
Amira never had a dating relationship. On cross-examination the State introduced
into evidence a stipulation in which Nangurai admitted that he previously had been
convicted of assault which was committed against a person with whom he had a
dating relationship. However, on redirect examination, he testified that he had
disavowed and withdrawn the stipulation and that he had not ever dated Amira.
At the charge conference, Nangurai requested an instruction on the lesser-
included offense of misdemeanor assault. He contended that if the jury determined
that he was guilty of committing assault in this case, it still reasonably could have
disbelieved that his prior conviction was for assault of a family member or person
with whom he had a dating relationship. The trial court refused the instruction. The
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jury found Nangurai guilty of felony assault involving family violence and
sentenced him to five years in prison.
Analysis
In a single issue on appeal, Nangurai contends that the trial court reversibly
erred by denying his request for a jury instruction on the lesser-included offense of
misdemeanor assault of a family member.
The Texas Code of Criminal Procedure provides, “[i]n a prosecution for an
offense with lesser included offenses, the jury may find the defendant not guilty of
the greater offense, but guilty of any lesser included offense.” TEX. CODE CRIM.
PROC. ANN. art. 37.08 (West 2006).
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;
(2) it differs from the offense charged only in the respect that a
less serious injury or risk of injury to the same person, property,
or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a
less culpable mental state suffices to establish its commission;
or
(4) it consists of an attempt to commit the offense charged or an
otherwise included offense.
Id. art. 37.09.
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We use a two-pronged test to determine whether a defendant is entitled to an
instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382
(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.
2011); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). The first
step is a question of law, in which the court compares the elements alleged in the
indictment with the elements of the lesser offense to determine “if the proof
necessary to establish the charged offense also includes the lesser offense.”
Cavazos, 382 S.W.3d at 382. “The second step of the lesser-included-offense
analysis is to determine if there is some evidence from which a rational jury could
acquit the defendant of the greater offense while convicting him of the lesser-
included offense.” Sweed, 351 S.W.3d at 67–68. Because this fact question
depends on the evidence presented at trial, we review the entire record in making
this determination on appeal. See id.; Hayward v. State, 158 S.W.3d 476, 478–79
(Tex. Crim. App. 2005). Anything more than a scintilla of evidence may be
sufficient to entitle a defendant to a jury instruction on a lesser-included offense.
Hall, 225 S.W.3d at 536 (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.
App. 1994)). “Although this threshold showing is low, ‘it is not enough that the
jury may disbelieve crucial evidence pertaining to the greater offense, but rather,
there must be some evidence directly germane to the lesser-included offense for
the finder of fact to consider before an instruction on a lesser-included offense is
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warranted.’” Sweed, 351 S.W.3d at 67–68 (quoting Skinner v. State, 956 S.W.2d
532, 543 (Tex. Crim. App. 1997)). “[T]he standard may be satisfied if some
evidence refutes or negates other evidence establishing the greater offense or if the
evidence presented is subject to different interpretations.” Sweed, 351 S.W.3d at
68.
The indictment in this case alleged that Nangurai “intentionally and
knowingly” caused “bodily injury” to the complainant, “a person with whom [he]
had a dating relationship,” by “striking the complainant with his hands” and
alternatively “by grabbing the complainant with his hands.” The indictment further
alleged that 13 years before the charged offense, Nangurai was convicted of
“assault which was committed against a person with whom the defendant had a
dating relationship.”
A person commits the offense of misdemeanor assault if he “intentionally,
knowingly, or recklessly causes bodily injury to another, including the person’s
spouse.” TEX. PENAL CODE ANN. § 22.01(a)(1). Because this offense is
“established by proof of the same or less than all the facts” necessary to prove the
charged offense, see TEX. CODE CRIM. PROC. ANN. art. 37.09(1), and “the proof
necessary to establish the charged offense also includes the lesser offense,”
Cavazos, 382 S.W.3d at 382, we conclude that misdemeanor assault is a lesser-
included offense of felony assault of a family member. Compare TEX. PENAL CODE
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ANN. 22.01(a)(1) (misdemeanor assault), with id. § 22.01(b)(2) (felony assault of a
family member). Accordingly, we hold that the first step of our inquiry into
whether a jury instruction was warranted is satisfied. See TEX. CODE CRIM. PROC.
ANN. art. 37.08 (West 2011); Cavazos, 382 S.W.3d at 382.
We next consider the second step: whether there is a scintilla of evidence
that Nangurai is guilty, if at all, of only misdemeanor assault and not felony assault
of a family member. See Sweed, 351 S.W.3d at 67–68. Nangurai did not deny that
he had been previously convicted of assault, but he did challenge the
characterization of that offense as being against a person with whom he had a
dating relationship. He relies upon his own testimony that he was not in a dating
relationship with Amira, as well as the deferred-adjudication order in that case,
which h was admitted into evidence at trial and which shows an affirmative finding
of “N/A” as to family violence. Based on this evidence, we agree that
misdemeanor assault was a valid rational alternative to the charged offense, and we
conclude that the jury should have been instructed on the lesser-included offense of
misdemeanor assault. On appeal, the State agrees that the trial court should have
instructed the jury on this lesser-included offense. See State’s Br. at 9.
Having found error in the trial court’s denial of the requested instruction on
the lesser-included offense of misdemeanor assault, we must determine whether
that error requires reversal. The erroneous refusal to give a requested instruction on
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a lesser-included offense is charge error subject to an Almanza harm analysis.
Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992); O’Brien v. State,
89 S.W.3d 753, 756 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); see
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rehearing).
Under Almanza, when jury-charge error has been preserved, as it was in this case,
we will reverse if the error in the court’s charge resulted in some harm to the
accused. See Almanza, 686 S.W.2d at 171; Ngo v. State, 175 S.W.3d 738, 743
(Tex. Crim. App. 2005). “[T]he harm from denying a lesser offense instruction
stems from the potential to place the jury in the dilemma of convicting for a greater
offense in which the jury has reasonable doubt or releasing entirely from criminal
liability a person the jury is convinced is a wrongdoer.” Masterson v. State, 155
S.W.3d 167, 171 (Tex. Crim. App. 2005). Thus, ordinarily, if the absence of the
lesser-included offense instruction left the jury with the sole option either to
convict the defendant of the charged offense or to acquit him, some harm exists.
Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995).
The State argues that Nangurai was not harmed because there was
overwhelming evidence that he was guilty of the charged crime. The State relies on
the deferred-adjudication order and jail card from the prior assault and the
testimony of the complainant from that case. In addition, the court admitted into
evidence a stipulation in which Nangurai admitted that he had previously been
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convicted of assault which was committed against a person with whom he had a
dating relationship.
However, on the day of trial, Nangurai disavowed and withdrew his
stipulation. And although Amira testified that she dated Nangurai, he testified that
he never had a dating relationship with her. Thus, the question of whether
Nangurai had a dating relations hip with Amira depended on the jury’s assessment
of the credibility of the witnesses.
The State contends that the jury’s verdict necessarily implies that it found
Nangurai’s testimony to be not credible. It reasons that because “the jury did not
find [Nangurai] credible, and his testimony was the only evidence contesting the
dating relationship of the case he was previously convicted of, the jury could not
have reasonably concluded that he was guilty of a lesser offense.”
However, “[b]ecause the jury is the sole judge of a witness’s credibility, and
the weight to be given the testimony, it may choose to believe some testimony and
disbelieve other testimony.” Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim.
App. 2008). Thus, the jury could have believed that Nangurai did not have a dating
relationship with Amira while disbelieving his denial of wrongdoing in this case.
The jury was presented photographic and testimonial evidence that Nangurai
assaulted the complainant, including consistent testimony from several
disinterested witnesses, such as neighbors and law enforcement officers. Yet they
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were denied an opportunity to evaluate Nangurai’s conduct in light of the lesser
criminal offense. As in Masterson, the jury was faced with the potential dilemma
of convicting Nangurai of felony assault, without regard to whether they had
reasonable doubt about his dating relationship with Amira, or acquitting him of
criminal liability entirely despite sufficient evidence to show that he assaulted the
complainant in this case. See Masterson, 155 S.W.3d at 171; Saunders, 913
S.W.2d at 571. In addition, the punishment he received, five years in prison,
exceeded the maximum term of imprisonment that he could have received if he had
been convicted of misdemeanor assault. Compare TEX. PENAL CODE ANN. § 12.34
(punishment range for confinement for third-degree felony is two to ten years in
prison), with id. § 12.21 (confinement as punishment for class A misdemeanor may
not exceed one year in jail); see Bignall v. State, 899 S.W.2d 282, 284 (Tex.
App.—Houston [14th Dist.] 1995, no pet.) (holding that the imposition of a penalty
that is more severe than the potential maximum penalty for the requested lesser-
included offense is evidence of some harm).
Accordingly, we hold that the trial court’s error in denying the requested
instruction on the lesser-included offense of misdemeanor assault caused Nangurai
some harm and is reversible. See Masterson, 155 S.W.3d at 171; Saunders, 913
S.W.2d at 571; Williams v. State, 314 S.W.3d 45, 53–54 (Tex. App.—Tyler 2010,
pet. ref’d) (holding that error in denying lesser-included offense was harmful when
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there was no intervening lesser-included offense that the jury rejected which would
have shown that the jury “had not been placed on the horns of the dilemma of
whether to convict Appellant of the only offense available to them or to set him
free” and the punishment assessed exceeded the maximum potential penalty for the
requested lesser-included offense); Jones v. State, 280 S.W.3d 294, 298 (Tex.
App.—Amarillo 2007, pet. ref’d) (same). We sustain Nangurai’s sole issue.
Conclusion
We reverse the judgment of the trial court and remand for a new trial.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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