/60f/S
31G.1NAL IN THE
COURT DF CRIMINAL APPEALS
OF TEXAS
A RECEIVED...
EDRICK DUNN,
PETITIONER
COURT OF CRIMINAL APPEALS
DEC 112015
v.
THE STATE OF TEXAS
AbelAcosta, Clerk
************
Petition in Cause No. 2011-432,529, from the
140th District Court of Lubbock County, Texas,
Hon.Jim Darnell presiding
and Cause No. 07-13-0037B-CR in the Court of Appeals
for the Seventh Supreme Judicial District of Texas
************
PETITION FOR DISCRETIONARY REVIEW
FILED IN
Edrick Dunn COURT OF CRIMINAL APPEALS
TDCO #01896519
Eastham Unit DEC 112015
2665 Prison Road #1
Lovelady, TX 75851
Abel Acosta, Cierk
EDRICK DUNN,
Pro se as Petitioner
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
(RULE 68.4(a), TEX.R.APP.PROC.)
A complete list of all parties to the trial court's judgment or order appealed
from, and the names and addresses of all trial and appellate counsel includes:
Edrick Dunn, pro se
TDCJ #01896519
Eastham Unit
2665 Prison Road #1
Lovelady, TX 75B51
THE STATE OF TEXAS,^Respondent
FOR THE PETITIONER: FOR THE STATE OF TEXAS:
Edrick Dunn, pro se MR.JEFF FORD
TDCJ #01896519 ATTORNEY FOR THE
Eastham Unit STATE OF TEXAS
2665 Prison Road #1 Office of the District Attorney
Lovelady, TX 75851 Lubbock County
P0 Box 10536
Lubbock, TX 79408-3536
(806) 775-1100
TRIAL COURT JUDGE: (806)775-1154 (fax)
Hon. Jim Darnell Hon. LISA McMINN
Lubbock County Courthouse State Prosecuting Attorney
904 Broadway P0 Box 12405
140th District Court, Lubbock County Austin, TX 78711
P0 Box 10536 (512)463-1660
Lubbock, TX 7940B-3536 (512)463-5724 (fax)
(806) 775-1128
TABLE OF CONTENTS
(RULE 68.4(a), TEX.R.APP.PROC.)
PAGE
PARTIES 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT REGARDING ORAL ARGUMENT 6
STATEMENT OF THE CASE 6
STATEMENT OF PROCEDURAL HISTORY 6
PETITIONER'S GROUNDS FOR REVIEW 7
NUMBER ONE: THE COURT OF APPEALS ERRED IN;IHOQDINGTTHATTTHETTRIAL
COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO INCLUDE AN
APPLICATION PARAGRAPH FOR THE LESSER-INCLUDED OFFENSE OF THEFT
FROM AN ELDERLY INDIVIDUAL IN THE JURY CHARGE ON GUILT-
INNOCENCE, AS THE SAME UAS THE LAU) OF THE CASE FROM THE RECORD
AT TRIAL
REASONS FOR REVIEW 7
AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS WITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.
ARGUMENT 8
CONCLUSION AND PRAYER 14
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15
APPENDIX 15
INDEX OF AUTHORITIES
(RULE 68.4(b), TEX.R.APP.PROC.)
PAGE
STATE STATUTES
TEX. CODE. CRIM.PROC. Art. 36.1 4 10
TEX.PEN.CODE § 29.03 6
PEN.CODE § 31 .03(f)(3)(A) 8
STATE CASES
Bell v. State, 693 S.W. 2d 434,442 (Tex.Crim.App. 1985) 11
Cavazos v. State, 382 S.W. 3d 377 (Tex.Crim.App. 2012) 11
Hall v. State, 225 S.W. 3d 524,534-535 (Tex.Crim.App. 2007) 11
Hall v. State, 283 S.W. 3d 137 (Tex. App .-Austin 2009 ,pet .ref' d) 11
Lugo v. State, 667 S.W. 2d 144 (Tex.Crim.App. 1984) 12
Ramos v. State, 865 S.W. 2d 463,465 (Tex.Crim.App. 1993) 11
Saunders v. State, 840 S.W. 2d 390 (Tex.Crim.App. 1992) 12
Sueed v. State, 351 S.W. 3d 63,67 (Tex.Crim.App. 2011) 11
PD-0495-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
• EDRICK DUNN,
PETITIONER
THE STATE OF TEXAS
************
Petition in Cause No. 2011-432,529, from the
140th District Court of Lubbock County, Texas,
Hon.Jim Darnell presiding
and Cause No. D7-13-0037B-CR in the Court of Appeals
for the Seventh Supreme Judicial District of Texas
************
PETITION FOR DISCRETIONARY REVIEW
EdrickrDunn
TDCJ #01896519
Eastham Unit
2665 Prison Road #1
Lovelady, TX 75851
EDRICK DUNN,
Prorse as Petitioner
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW EDRICK DUNN, Petitioner, appearing pro se, and petitions the Court
of Criminal Appeals of Texas to exercise its discretionary jurisdiction to review
the judgement of the Court of Appeals for the Seventh District of Texas, Amarillo,
Texas. In support of this Petition, he would show this Honorable Court as Follows.
5TATEMENT REGARDING ORAL ARGUMENT
Petitioner waives oral argument.
STATEMENT OF THE CASE
On October 11, 2011, Petitioner was charged in a single-count indictment
in Cause No. 2011-432,529, in the 140th District Court of Lubbock County.
He was charged under Penal Code § 29.03 with Aggravated Robbery. The alleged
victim was Norma Chance, and the offense date given was September 7, 2011
(Clerk's Record [MCR"]p.7).
A non-evidentiary pretrial hearing was held in the case on January 10,
2013 (Reporter's Record ["RR"]v.2). Petitioner's jury trial on guilt-innocence
commenced on October 22, 2013 in the 140th District Court, Hon.Jim Darnell
presiding. Petitioner was convicted on October 23, 2013 (RR v.5,p.24).
Sentencing proceedings commenced before the jury on October 23, 2013.
On October 24, 2013, the jury sentenced Petitioner to fifty (50) years imprisonment
in the Texas Department of Criminal Justice, Institutional Division (RR v.7,p.24).
Petitioner perfected appeal on November 7, 2013 (CR p.133).
STATEMENT OF PROCEDURAL HISTORY
(RUEE'-68fG(eh',TEX:R.RPP£-PRGC:>
Then attorney David Crook submitted a brief to the Seventh Court of Appeals
on May 19, 2014. The Seventh Court of Appeals rendered its decision affirming
Petitioner's conviction on August 11, 2014. Then counsel mailed the appellant
a copy of the brief submitted on his behalf on the same date. No motion for
rehearing was filed by Petitioner's then counsel, David Crook, of Crook &
Jordan in Lubbock.
Petitioner's counsel at the time, David Crook, failed to file a Petition
for Discretionary Review on Petitioner's behalf. Petitioner then filed, pro se,
a post-conviction writ of habeas corpus pursuant to Code of Criminal Procedure
11.07, et. seq. Relief was granted as to the writ on V^OslewW.^T^pc?^ and
Petitioner was permitted to file an out-of-time Petition for Discretionary
Review no later than OecewV^ev'-W-V olo\!o This petition was then timely filed.
GROUNDS FOR REVIEU
NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO INCLUDE AN
APPLICATION PARAGRAPH FOR THE LESSER-INCLUDED OFFENSE OF THEFT
FROM AN ELDERLY INDIVIDUAL IN THE 3URY CHARGE ON GUILT-
INNOCENCE, AS THE SAME UAS THE LAU OF THE CASE FROM THE RECORD
AT TRIAL.
REASON FOR REVIEU
AS TO GROUNDS NUMBER ONE: THE DECISION OF THE COURT OF
APPEALS CONFLICTS UITH THE APPLICABLE DECISIONS OF THE COURT
OF CRIMINAL APPEALS.
ARGUMENT
NUMBER ONE: THE COURT OF APPEALS ERRED IN HOLDING THAT THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO INCLUDE AN
APPLICATION PARAGRAPH FOR THE LESSER-INCLUDED OFFENSE OF THEFT
FROM AN ELDERLY INDIVIDUAL IN THE JURY CHARGE ON GUILT-INNOCENCE, AS
THE SAME UAS THE LAU OF THE CASE FROM THE RECORD AT TRIAL.
Applicable Portions of the Record
Petitioner was indicted for Aggravated Robbery, the aggravating element
being not the alleged use of a deadly weapon, or the infliction of seriously bodily
injury, but rather the age of the victim. The indictment charged Petioner with
"intentionally, knowingly, or recklessly" causing bodily injury to Ms.Norma
Chance, the alleged victim (CR p.7). Petitioner avers that the jury charge should
have contained an alternate application paragraph so that the jury could have
convicted on the lesser-included offense of Theft from an Elderly Person,
PEN. CODE §31.03(f)(3)(A). This is because not only was the evidentiary record
at trial equivocal and ambiguous on whether the alleged victim was injured, but
also because the evidence showed the event at issue to be purse-snatching, and
when a person commits a purse-snatching by grabbing a purse from another individual
without more, a threshold question is presented as to whether there was any
intent to injure, even if in the event the alleged victim falls, for example, or
sustains incidental injuries. Such a factual scenario virtually in every instance
would present a fact issue for a jury or the trier of fact. Therefore, the jury
should have been permitted to make the determination.
Ms.Norma Chance was the alleged victim in the case. At trial the State fed
Ms.Chance a leading question about Petitioner knocking her down. Ms.Chance
demurred and said that he didn't knock her down, but rather grabbed her purse, and
when he "pulled up," it made her "go up." She was "hanging on to" her purse, or
trying to (RR v.4,p.41). She fell down (RR v.4,p.42). Therefore, the record is
devoid of any evidence that Petitioner struck Chance or otherwise directly
assaulted her. The case was a purse snatching, and Ms.Chance happened to fall
8
as a result.
At trial Ms.Chance at first said that she had no visible injuries on her
person. Later she said that her hands and fingers were bruised. The police
then took pictures and asked if she wanted to go to the hospital. She said no
(RR v.4,p.49). Also, Chance, despite her advanced years, chased Appellant.
According to her, she was "running after him" (RR v.4,p.43). This was after
being robbed and supposedly injured. She certainly demonstrated admirable
activity for a woman of her age. (RR v .4,pp.41-44) . The State never introduced
any; medical' records^'at"ttiial, ^although'-Chance :testified"- that-she'':weht ;:to?a: doctor
(RR v.4,pp.55-56). Latonya ["Tonya"] Long, the store employee, testified that she
could not remember if Chance had any injuries (RR v.6,p.87). She did not recall
what the police took pictures of when they photographed Chance. On cross,
Tonya said that Chance had a limp when coming back up to her after the robbery,
but admitted that she could not recall seeing Chance limp in the store video
(RR v.4,p.109). When counsel reminded Tonya that chance walked home, Tonya
first denied recalling, and then allowed that Chance might have "left walking"
(RR v.4,pp.109-110). Officer Jeremy Jones stated that Chance was offered medical
attention but turned it down (RR v.4,p.140). Jones saw Chance walking about
and could not see any impairment, other than Chance being elderly (RR v.4,p.142).
Corporal Jay White, the CSO on the instant case (RR v.4,p.149), photographed
Chance and did testify that he saw injuries on Chance's right forearm, hand,
and finger (RR v.4,p.151). White testified that Chance had difficulty walking
when he saw her, but also testified that he did not offer her medical care
or a ride home (RR v.4,pp.1 58-159).
Opinion of the Court of Appeals
In his Brief to the Court of Appeals, Petitioner advanced the argument restated
here that the Trial Court abused its discretion by overruling his objection to the
omission of an application paragraph permitting the trier of fact to convict only
9
for the lesser-included offense of theft from an Elderly Person, rather than only
Aggravated Robbery. The case was aggravated due to the age of the victim, not due to
the display of a deadly weapon or the infliction of serious bodily injury.
(See brief of Appellant,pp.31-42).
At trial, Petitioner preserved error by (inter alia) objecting, pursuant to
Article 36.14 of the Code of Criminal Procedure, to the omission of the option'of
convicting for "theft from an elderly person" from the charge (RR v.4,p.161). The
Court of Appeals did not base its holding on any assertion that error as to the
charge was not preserved. Since Petitioner was complaining of the undue omission of a
lesser-included offense from the charge, the Court of Appeals referred to the "two-
step analysis" used for review of charge this issue, that of Hall v. State, 225 S.W.
3d 524,535-536(Tex.Crim.App.2007)[Opinion of the Court of Appeals,p.2]. The Hall opinion
said that the reviewing court must determine if the proof necessary to establish the
charged offense also included the lesser offense[citing Cavazo v. State, 3B2 S.W. 3d
377,383(Tex.Crim.App.2012)]. In its opinion on the instant case, the Court of Appeals
further noted that pursuant to the holdings cited, supra, if an appellant meets the
requirements of the first step, the reviewing court must then:considernwhether "the
evidence shows that if Appellant is guilty, he is guilty only of the lesser offense"
[Opinion of the Court of Appeals,p.2.] Petitioner had noted the same test and cited the
same two cases in his brief [Brief of Appellant,p.35]. In affirming the case, the ?,;.
Court of Appeals tacitly agreed with Petitioner that in view of the indictmentrand
evidence in this Cause, theft from an Elderly Person was in fact a lesser-included
offense of Aggravated Robbery [from the age of the victim as aggravating element].
The opinion of the Court of Appeals stated that, "What Appellant is missing is evidence
tending to show that if he is guilty of any offense, he is only guilty of theft".
[Opinion of the Court of Appeals,p.2]. It also stated that, "Simply put, Appellant failed
tfliestablish'.'the second prong:.offour two-step •analysis" [0pinibri7af-the Court of Appeals,
10
p.3]. Thus, the argument here concerns whether the evidence at Petitioner's
trial presented any issue as to the lesser offense, thereby necessitating
its inclusion in the charge.
Requirement of the Inclusion of a Lesser-Included Offense Where the Evidence
Raises the Issue
A trial court should instruct the jury on a lesser-included offense if
(1) the offense in question is a lesser-included offense, and (2) the record
contains some evidence that would permit a rational jury to find the defendant
guilty only of the lesser-included offense. Hall[Court of Criminal Appeals]
supra, at 473, Hall[Austin], supra, at 157, Sweed v. State, 351 S.W. 3d 63,
67 (Tex.Crim.App.2011). That is a defendant [given the application of the
first prong, supra] qualifies for a lesser-included offense instruction if
the record contains evidence that, if believed by the jury, negates or refutes
an element of the greater offense while providing a rational alternative finding
on any associated element of the lesser offense, or is subject to different
interpretations by the jury. Cavazos v. State, 382 S.W. 3d 377 (Tex.Crim.App.
2012). Put another way, a defendant is entitled to an instruction on a lesser-
included offense if some evidence from any source raised a fact issue on whether
he is guilty of only the lesser offense, regardless of whether the evidence
is weak, impeached, or contradicted. Bell v. State, 693 S.W. 2d 434, 442 (Tex.Crim.App.
19B5). In applying the second prong, the reviewing court must "examine the
entire record instead of plucking evidence from the record and examining it
ina vacuum." Ramos v. State, 865 S.W. 2d 463, 465 (Tex.Crim.App. 1993). Anything
more than a scintilla of evidence is sufficient to entitle a defendant to
a lesser charge. Id. at 489.
Argument for Inclusion of the Instruction
There is more than a scintilla of evidence, under the prevailing standard
for the inclusion of a lesser-included offense, that Ms.Chance did not suffer
11
bodily injury on the occasion at issue. She testified that despite being over
70 years of age, after being robbed, she ran after Appellant. She was not
offered a ride home, and wound up walking home. She turned down medical care.
She did not seek out a doctor that day, but saw one the following day by previous
appointment. She stated before the jury that she did not have any visible
injuries, before hastily amending her answer (RR v.4,p.46). The store clerk,
who was certainly sympathetic to her, admitted she could not see Ms.Chance
limping on the video introduced into evidence. She also stated that she could
not remember if Ms.Chance had any injuries (RR v.4,p.87). Dne of the police
witnesses admitted he could see no impairment in her gait. The State never
introduced any of the medical records pertaining to the event, and Ms.Chance
never identified the physician who treated her. Certainly there was other
testimony tending to show injury, but there was more than a scintilla indicating
there were no injuries. The question was for the jury.
There was also second basis for the inclusion of the lesser-included
offense instruction other than the uncertainty raised by the evidence about
whether Ms.Chance actually suffered bodily injury. That is the patent uncertainty,
from the evidence, as to whether Petitioner even recklessly inflicted bodily
injury upon her, in a case lacking any evidence that he struck her. There
is no evidence that he intentionally or knowingly inflicted injury on her.
More generally, Petitioner avers that a case like the one at bar where the
evidence as a threshold matter presents an issue as to whether he even inflicted
bodily injury is, ipso facto, going to require the inclusion of a lesser-included
offense instruction, where applicable. Ms.Chance testified that Appellant
did not knock her down or strike her; rather, he grabbed her purse and "pulled
up," making her "go up" [and fall] since Appellant was "taller than I was"
(RR v.4,p.41). That is, since the evidence showed basically that Appellant
grabbed a purse, but did not show that he struck or otherwise phyisically lashed
12
out directly at the victim, the jury should on the face of things be given
the option of convicting for the appropriate grade of theft [of person] , rather
than necessarily having to include the assaultive component. Saunders v. State,
840 S.W. 2d 390 (Tex.Crim.App. 1992), presents some broad similar.itijBS ';to !;fehe
issue of the applicability of a lesser-included offense. In Saunders, the defendant
was convicted of murder, and the trial court denied the inclusion of a lesser-
included offense of criminally negligent homicide inrtheccharge. In reversing
on this point, the Court of Criminal. Appeals held that a negligent homicide
instruction was required where the evidence showed that the defendant had
squeezed the back of an infant's head, causing death. The jury could conclude
from this that either the defendant knew that his action might cause death,
or he did not know. The Court noted that the evidence only circumstantially
showed the defendant's mental state. Id. at 392. The opinion in Saunders alluded
to another case, Lugo v. State, 667 S.W. 2d 144 (Tex.Crim.App. 1984), in which
the Court held that an involuntary manslaughter charge should have been included
in that murder case. The evidence in Lugo showed that the defendant pointed
a loaded rifle at his wife, to persuade her to relinquish some car keys. The
Court noted that this evidence could have been interpreted to show that the
defendant intentionally pointed the rifle at his wife knowing it was loaded
and then intentionally shot her, or it could have been interpreted to show
that the defendant consciously disregarded a substantial risk.
The Court of Appeals Ignored Binding Precedent
Given the evidentiary posture of the case, it is Petitioner's position
that the evidence raised more than a scintilla of an issue as to whether he
was guilty only of the lesser offense of Theft from an Elderly Person, and
the jury should have been given the option of convicting only for this lesser
offense. That required by the holdings of the Court of Criminal Appeals in
such cases as Hall, Sweed, and Bell, supra. The Court of Appeals therefore
13
misinterpreted or misapplied binding precedent in affirming Petitioner's conviction.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner EDRICK DUNN, prays that the
Court of Criminal Appeals grant his Petition for Discretionary Review, and
that after submission, this Court reverse the decision of the Court of Appeals
and remand the Cause.
Respectfully submitted,
Edrick Dunn, pro se
TDCJ #01896519
Eastham Unit
2665 Prison Road #1
Lovelady, TX 75851
CERTIFICATE OF COMPLIANCE UITH T.R.A.P. 9.4(i)(2)(D)
This is to certify that the length of the foregoing Petition for Discretionary
Review conforms with the Texas Rule of Appellant Procedure 9.4, in that the
brief, computer-generated, is 2,091 words, which is no longer than 4,500 words,
exclusive of the pages containing the identity of parties and counsel, any
statement regarding oral argument, the table of contents, the index of authorities,
the statement of the case, the issue presented, the signature, and the proof
of service.
^xeciXlKj^xy^
/s/ Edrick Dunn
EDRICK DUNN
14
CERTIFICATE OF SERVICE
This is to certify that a true and accurate copy of the above and forgoing
PETITION FOR DISCRETIONARY REVIEW was mailed to the Hon.Jeff Ford, attorney
for the State of Texas, at his office address of Office of the District
Attornet, PO Box 10536, Lubbock, TX 7940B-3536. It was also mailed to Hon.Lisa
McMinn, State Prosecuting Attorney, PO Box 12405, Austin, TX, 78711, both
being mailed on \s\o\Jemto''. 3 "TtV\ i201 5.
9djw^xJMMsyu
/s/ Edrick Dunn
EDRICK DUNN
15
APPENDIX
16
Court of gppeal*
»euent& JBtetrtct of {Kexa* 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, CJ., 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). Ifthis 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.
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).
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
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Combined Opinion