Opinion issued April 19, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00349-CR
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Melvin Charles Sweed, Jr., Appellant
V.
The State of Texas, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1132101
MEMORANDUM OPINION ON REMAND FROM THE COURT OF CRIMINAL APPEALS
A jury convicted appellant, Melvin Charles Sweed, Jr., of the first degree felony offense of aggravated robbery and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed punishment at thirty-eight years’ confinement.[1] On appeal, appellant contended that the trial court erred by failing to include in the written charge an instruction on the lesser-included offense of theft. A panel of our Court held that there was no evidence to support appellant’s contention that his use and exhibition of a deadly weapon did not occur in the course of or in immediate flight from committing theft, and, thus, appellant could not have been found guilty only of theft. See Sweed v. State, 321 S.W.3d 42, 48 (Tex. App.—Houston [1st Dist.] 2010) (“Sweed I”). The panel therefore concluded that he was not entitled to the theft instruction. Id.
Appellant subsequently filed a petition for discretionary review in the Court of Criminal Appeals. The Court of Criminal Appeals concluded that the evidence raised a fact issue regarding whether appellant’s use of the deadly weapon occurred in the course of or in immediate flight from the theft and that more than a scintilla of evidence raised the lesser-included offense of theft. See Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (“Sweed II”). The court concluded that a rational jury could have found that appellant was guilty only of theft, and, thus, the trial court erred by not including an instruction on the lesser-included offense of theft. Id. The Court of Criminal Appeals reversed our judgment and remanded the case to this Court with instructions to conduct a harm analysis pursuant to Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
We reverse and remand.
Background
A. Relevant Facts
On September 6, 2007, the complainant, Sixto Mondragon, supervised several work crews in replacing the siding on buildings of the Haverstock Hills apartment complex in northeast Harris County. Mondragon had seen appellant, who did not live at the complex and who did not work for Mondragon, “hanging around” the work crews and speaking with some of the crew members throughout the day. Later that afternoon, Mondragon heard one of his crew members yelling that someone “had pulled a knife on him.” Mondragon saw appellant walk quickly away while carrying something wrapped in a towel. Mondragon and some of his workers followed appellant and watched him enter an apartment in the complex. The employee who initially alerted Mondragon informed him that appellant had stolen a nail gun. Mondragon called the police, and, while waiting for the police to arrive, Mondragon and some crew members watched the door to the apartment to make sure that appellant did not leave.
Mondragon saw appellant leave the apartment approximately five to twenty minutes later wearing different clothing. Appellant walked across a parking lot in the complex and spoke with a group of unidentified men for no more than five minutes. He then started walking back toward the apartment that he had previously entered. On the way, he recognized Mondragon, pulled out a pocket knife, and waved the open knife at Mondragon’s chest. Mondragon testified that he was scared and that he thought appellant might stab him, so he put his hands in his pockets and “act[ed] like [he] had a gun or something.” Appellant did not say anything to Mondragon; instead, he just walked back into the apartment. Harris County Sheriff’s Department deputies arrived approximately five to ten minutes later.
After speaking with Mondragon, the deputies knocked on the door of the apartment that appellant was seen entering. The occupant of the apartment gave the deputies consent to search. The deputies discovered appellant trying to hide under a bed, and they found a knife in his immediate vicinity. The deputies also located the nail gun stolen from Mondragon inside the apartment. The State indicted appellant for aggravated robbery.
During the charge conference at trial, defense counsel argued that the theft and the alleged assault of Mondragon were two separate incidents, and, therefore, appellant should receive an instruction on the lesser-included offense of theft because the alleged assault did not occur during the commission of or in “immediate flight” from the theft, which is an essential element of aggravated robbery. The State argued that, if the trial court submitted a lesser-included offense instruction on theft, it should also submit a lesser-included offense instruction on aggravated assault. The trial court denied both requests and instructed the jury solely on the charged offense of aggravated robbery.
The jury found appellant guilty of aggravated robbery and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed punishment at thirty-eight years’ confinement.
B. Court of Criminal Appeals’ Opinion
The Court of Criminal Appeals concluded that “there was trial evidence presented that supported giving a theft instruction to the jury.” Sweed II, 351 S.W.3d at 68. The court observed,
A person commits theft if “he unlawfully appropriates property with intent to deprive the owner of property.” A person commits robbery if “in the course of committing theft” and “with intent to obtain or maintain control of the property,” he “intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” To prove aggravated robbery, the State must prove robbery plus an aggravating factor, such as the defendant “uses or exhibits a deadly weapon.” The robbery element of “in the course of committing theft” is defined as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.”
Id. at 68–69 (citations omitted) (emphasis in original). The court noted that, because appellant did not dispute that he committed the theft, “the central issue at trial was whether Appellant pulled a knife on Mondragon during or in immediate flight after the commission of the theft.” Id. at 69. The court concluded that more than a scintilla of evidence existed from which the jury could have reasonably determined that “theft is a valid, rational alternative to aggravated robbery.” Id.
The Court of Criminal Appeals pointed to the facts that appellant fled into an apartment after stealing the nail gun, remained inside for five to twenty minutes, and changed clothes before walking back outside. Id. Appellant then walked to another part of the apartment complex, spoke with a group of men for five to ten minutes, and then threatened Mondragon while walking back to the apartment into which he had originally fled. Id. The court reasoned that “the fifteen to thirty minute delay and the intervening activities, including Appellant’s act of leaving the apartment, could rationally be interpreted as evidence that he was no longer fleeing from the theft.” Id. As a result, a rational jury could conclude that the assault on Mondragon was a separate event from the theft, “meaning that Appellant could have been guilty only of the lesser offense of theft and not aggravated robbery.” Id.
Because the evidence raised a fact question regarding whether appellant’s use of the knife occurred in the course of or in immediate flight from the theft, the evidence supported an instruction on the lesser included offense of theft. Id. at 69–70. The Court of Criminal Appeals therefore reversed and remanded the case to this Court to conduct a harm analysis pursuant to Almanza v. State. Id. at 70.
Lesser-Included Offense Harm Analysis
The trial court’s erroneous refusal to submit a requested instruction on a lesser-included offense is charge error subject to an Almanza harm analysis. O’Brien v. State, 89 S.W.3d 753, 756 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Saunders v. State, 840 S.W.2d 390, 392 (Tex. Crim. App. 1992)); see Almanza, 686 S.W.2d at 171. Under Almanza, when error in the jury charge is properly preserved, reversal is required if the charge error resulted in some harm to the defendant, “some” meaning “any.” O’Brien, 89 S.W.3d at 756; see also Henry v. State, 263 S.W.3d 151, 156 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“‘Some’ harm in an Almanza analysis means ‘any’ harm; thus, if the charging error causes any actual harm to the appellant, as opposed to ‘theoretical harm,’ then the error requires a reversal of the judgment of the trial court.”). In this case, appellant properly objected to the charge and requested an instruction on the lesser-included offense of theft.
“If the charge error involves the absence of a lesser-included offense [instruction] that leaves the jury with the sole option to convict the appellant of the charged offense or to acquit him, some harm exists.” Henry, 263 S.W.3d at 156 (citing Saunders, 913 S.W.2d at 572). When the jury is faced with the sole options of either convicting the defendant of the greater charged offense or acquitting him, “a finding of harm is essentially automatic because the jury was denied the opportunity to convict the defendant of the lesser offense.” O’Brien, 89 S.W.3d at 756; see also Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (stating same); Robalin v. State, 224 S.W.3d 470, 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating same); Ray v. State, 106 S.W.3d 299, 302–03 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (stating same). In this scenario, “there is a distinct possibility that the jury, believing the defendant to have committed some crime, but given only the option to convict him of the greater offense, may have chosen to find him guilty of that greater offense, rather than to acquit him altogether, even though it had a reasonable doubt that he really committed the greater offense.” O’Brien, 89 S.W.3d at 756 (citing Saunders, 913 S.W.2d at 571); see Beck v. Alabama, 447 U.S. 625, 634, 100 S. Ct. 2382, 2388 (1980); Masterson v. State, 155 S.W.3d 167, 171 (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.”).
The Court of Criminal Appeals held that the evidence presented in this case demonstrates that appellant might be guilty only of the lesser-included offense of theft, instead of the charged offense of aggravated robbery, and, therefore, the trial court erroneously denied his requested theft instruction. The trial court also denied the State’s request for a lesser-included offense instruction on aggravated assault. As a result, the court instructed the jury solely on the charged offense of aggravated robbery. The jury, therefore, had two options in this case: convict appellant of the charged offense of aggravated robbery or acquit him. The jury chose to convict appellant, and it ultimately assessed punishment at thirty-eight years’ confinement.
We conclude that because the trial court denied the jury the opportunity to convict appellant solely of the lesser-included offense of theft, which it reasonably could have done based upon the evidence presented at trial, its erroneous failure to submit this instruction created “some” harm. See Masterson, 155 S.W.3d at 171; Brock, 295 S.W.3d at 49; Robalin, 224 S.W.3d at 477; Ray, 106 S.W.3d at 302–03; O’Brien, 89 S.W.3d at 756. Thus, the trial court’s failure to submit this instruction constitutes harmful error under Almanza and warrants reversal of this case.[2]
We sustain appellant’s sole issue.
Conclusion
We reverse appellant’s conviction and remand the case to the trial court for a new trial.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Do Not Publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2011).
[2] We note that, on remand, the State is also entitled to a lesser-included offense instruction on aggravated assault. See Sweed v. State, 351 S.W.3d 63, 71 (Tex. Crim. App. 2011) (Johnson, J., concurring) (“Thus, the evidence in the record supports the giving of an instruction on aggravated assault as a lesser-included offense of aggravated robbery.”).