Peyton Wilson v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-20-00148-CR
________________________

PEYTON WILSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2019-418,334; Honorable William R. Eichman II, Presiding

February 25, 2021

MEMORANDUM OPINION

Before PIRTLE, PARKER, and DOSS, JJ.

Appellant, Peyton Wilson, appeals from his conviction by jury of the lesser-included

offense of aggravated assault with a deadly weapon 1 and the resulting court-imposed

TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2020). An offense under this section is a felony of the
1

second degree.
sentence of fifteen years of imprisonment. 2 Appellant challenges his conviction through

four issues. First, Appellant contends the trial court erroneously failed to instruct the jury

on the law of self-defense. Next, he contends the evidence is insufficient to support the

verdict because the jury acquitted him of the only permissible theory of criminal conduct.

By his third issue, Appellant contends he stands convicted of conduct protected by the

Second Amendment to the United States Constitution and Article I, Section 23 of the

Texas Constitution; and, finally, Appellant posits he was egregiously harmed by the

inclusion of an inappropriate lesser-included offense. Having considered each issue, we

will affirm.

BACKGROUND

This case arises from events that occurred when twelve members of the Lubbock

Police Department SWAT Team forcibly entered Appellant’s home to execute a high-risk,

no-knock narcotics search warrant. Prior to entry, the officers were briefed that Appellant

was dealing in chemically dangerous narcotics and that he “had access to at least a pistol

in his bedroom.” The SWAT team members entered the home around the noon hour. At

the time, they were wearing clothing with “POLICE” printed on them as well as gas masks 3

and voice amplifiers. Each member of the SWAT team announced “police search

warrant” loudly and repeatedly on entry. The SWAT team smashed two windows as a

2 A second degree offense is punishable by imprisonment for any term of not more than twenty

years or less than two years and a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2020).
3 One of the SWAT team officers testified the officers wore gas masks because they had received
information that Appellant was under suspicion of possessing and dealing a dangerous narcotic.

2
distraction 4 and broke the two front doors using an entry tool. 5 A surveillance camera

was seen mounted above the front entryway of the front door. 6

After entry into the home, officers kicked in Appellant’s closed bedroom door, the

door hit Appellant and bounced back. At that point, Appellant stuck his arm out from

behind the door and pointed a firearm in their direction. 7 The SWAT team member that

acted as “point” that day testified he saw “an arm protrude from the doorway, and then

the arm is holding a pistol with some kind of light or a laser device on it. And then aiming

it toward our general area . . . .” Another SWAT team member testified he saw “what

looked like a gigantic hole of a pistol pointed at my face.” He fired his assault rifle and

struck Appellant twice through the door, causing injury. These events occurred in less

than two minutes.

Appellant was subsequently charged with aggravated assault of a public servant

based on his conduct of pointing a firearm at the officers serving the search warrant. The

matter was tried to a jury, after which the jury convicted Appellant of the lesser-included

offense of aggravated assault. The court entered an affirmative deadly-weapon finding

and sentenced Appellant as noted.

4 One officer agreed the tool used to break the windows was a “pry bar.” The window was broken

to “get eyes in” or “create a distraction.”

5The officer who entered the home first testified the home had a metal security screen door locked
with a deadbolt and an entry door beyond that. He described these as “fortification” measures.

6One SWAT team member testified that during the pre-entry briefing, he was informed that the
residence had “live-feed surveillance.”

7 A SWAT team member testified “immediately a pistol came through the opening of the doorway,

and it was about head level with me and [another officer].” He later said the gun was pointed “[d]irectly at
myself and [the other officer].” The officer testified he was “scared” when Appellant pointed the pistol
“directly at [his] face.”

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 ANALYSIS

ISSUE ONE—SELF-DEFENSE INSTRUCTION

By his first issue, Appellant argues he was entitled to a jury instruction regarding

self-defense because the evidence showed that to protect himself, he pointed his firearm

at individuals who forcibly broke into his home. He maintained throughout trial, and

continues to do so on appeal, that he did not know that the people entering his home

were police officers.

We review alleged jury charge error in two steps. Taplin v. State, No. 03-19-00257-

CR, 2020 Tex. App. LEXIS 8243, at *5 (Tex. App.—Austin Oct. 15, 2020, no pet.) (mem.

op., not designated for publication). First, we determine whether error exists; and then, if

so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Id. (citing Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005)). The degree of harm required for reversal

depends on whether the jury charge error was preserved in the trial court. Taplin, 2020

Tex. App. LEXIS 8243, at *5 (citing Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim.

App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on

reh’g) (setting forth procedure for appellate review of claim of jury charge error)). If the

complaint about jury charge error was preserved in the trial court, “then reversal is

required if there was some harm to the defendant.” Taplin, 2020 Tex. App. LEXIS 8243,

at *5 (citing Marshall, 479 S.W.3d at 843).

A defendant is entitled to an instruction on any defensive issue raised by the

evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and

regardless of how the trial court views the credibility of the defense. Taplin, 2020 Tex.

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App. LEXIS 8243, at *5-6 (citing Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App.

2013)). The defendant bears the burden of production with respect to a defense and the

issue of the existence of a defense is not submitted to the jury unless evidence is admitted

supporting the defense. Taplin, 2020 Tex. App. LEXIS 8243, at *6 (citations omitted).

“[A] defense is supported (or raised) by the evidence if there is some evidence, from any

source, on each element of the defense that, if believed by the jury, would support a

rational inference that that element is true.” Id. See Juarez v. State, 308 S.W.3d 398,

404 (Tex. Crim. App. 2010) (“The defendant bears the burden of showing that each

element of the defense has been satisfied.”). In determining whether a defense is thus

supported by the evidence, the court views the evidence in the light most favorable to the

defendant’s requested jury instruction and relies “on its own judgment, formed in the light

of its own common sense and experience, as to the limits of rational inference from the

facts proven.” Taplin, 2020 Tex. App. LEXIS 8243, at *6 (citations omitted).

A person is justified in using force against another when and to the degree he

reasonably believes the force is immediately necessary to protect against the other’s use

or attempted use of unlawful force. Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim.

App. 2020) (citing TEX. PENAL CODE ANN. § 9.31(a)). A person is justified in using deadly

force against another if he would be justified in using force, and he reasonably believes

deadly force is immediately necessary to protect himself against the other’s use or

attempted use of unlawful deadly force. Id. (citing TEX. PENAL CODE ANN. § 9.32(a)). The

evidence does not have to show that the victim was actually using or attempting to use

unlawful deadly force because a person has the right to defend himself from apparent

danger as he reasonably apprehends it. Id. (citing Hamel v. State, 916 S.W.2d 491, 493

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(Tex. Crim. App. 1996)). “Reasonable belief” means a belief that would be held by an

ordinary and prudent man in the same circumstances as the actor. TEX. PENAL CODE ANN.

§ 1.07(a)(42).

Self-defense is a confession-and-avoidance defense requiring the defendant to

admit to his otherwise illegal conduct. Jordan, 593 S.W.3d at 343 (citing Juarez v. State,

308 S.W.3d 398, 404 (Tex. Crim. App. 2010)). He cannot both invoke self-defense and

flatly deny the charged conduct. Id. (citation omitted). In other words, the defendant

would have to admit to the use of deadly force against someone he reasonably believed

was using or attempting to use unlawful deadly force against him. In that regard,

Appellant conceded throughout trial that he pointed a gun at the men who entered his

home, while he also maintained he did not know the men were police officers, and he

now argues those facts entitled him to a jury instruction regarding self-defense.

In support of his position, Appellant argues the uncontested evidence shows a

dozen men knocked down two doors, broke out windows and kicked in and struck

Appellant with his bedroom door. Appellant contends he was unaware that these men

were the police or that they were executing a search warrant. Appellant “blindly stuck his

arm through a one-foot opening and pointed a handgun toward one of these men.” That

man then shot Appellant twice with an assault rifle. Appellant also points to other

evidence he says supports his position including the fact that members of the SWAT team

testified they forcibly entered Appellant’s home, intending to surprise him with “shock and

awe.” They all shouted “police search warrant” but did so while wearing gas masks that

muffled their voices. The officers had trouble communicating with one another due to the

commotion caused by the entry into Appellant’s home. The officers also testified that

6
someone in Appellant’s position could feel threatened, invaded, stressed, and justified in

defending himself with a firearm if he did not know the men entering the residence were

police officers.

On appeal, Appellant argues that the jurors obviously believed Appellant did not

know these men were law enforcement officers because they acquitted him of the greater

offense of aggravated assault of a public servant and instead found him guilty of the

lesser-included offense of simple aggravated assault. While we might speculate that this

is the reason the jury acquitted Appellant of the greater offense of aggravated assault of

a public servant, the jury’s reasoning and conclusion are of no consequence to the

resolution of this issue because we must review the trial court’s decision on the basis of

whether, at the time the trial court presented the charge to the jury, the evidence

presented would have supported a rational inference that each element of self-defense

were true.

The State disagrees with Appellant’s contention that self-defense was raised,

arguing there was no evidence to support Appellant’s entitlement to a jury instruction. 8 In

fact, the State points to evidence that shows Appellant did not act in self-defense. While

Appellant’s roommate testified the home had been recently burglarized, the State notes

Appellant had a television in his bedroom that was connected to a live-feed surveillance

video system on the outside of his home. The State further contends this, along with

evidence of the clothing worn by the officers and the announcements they made on

8 The record shows a mistake-of-fact instruction was provided in the jury charge.

7
entering Appellant’s home, shows Appellant knew the people entering his home were

police officers and not burglars.

Moreover, as to the charge of aggravated assault of a public servant, Appellant is

not entitled to a self-defense instruction because he never admitted guilt as to the charged

offense. See Mercer v. State, No. 02-16-00439-CR, 2017 Tex. App. LEXIS 10088, at

*11-12 (Tex. App.—Fort Worth Oct. 26, 2017, pet. ref’d) (mem. op., not designated for

publication). As in Mercer, Appellant only admitted to committing aggravated assault, but

denied committing aggravated assault of a public servant because he maintained he did

not know the people entering his home were police officers. Because Appellant failed to

admit to an essential element of the offense, i.e., committing aggravated assault when he

knew “the person assaulted is a public servant while the public servant is lawfully

discharging an official duty,” Appellant “did not pass the threshold of admission that

requires a court to provide a self-defense instruction to the offense of aggravated assault

of a public servant.” Mercer, 2017 Tex. App. LEXIS 10088, at *11 (citations omitted).

In addition, the State further argues self-defense is only justified against a peace

officer when it has been shown that the peace officer used excessive, unlawful force

against the actor. Because Appellant made no argument that the officers used greater

force than necessary at trial or on appeal, he has not shown himself justly entitled to a

self-defense instruction to the charged offense.

In pertinent part, section 9.31(c) limits the right to use of force against a peace

officer as follows:

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 (c) [t]he use of force to resist arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person
acting at his direction) uses or attempts to use greater force than
necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is
immediately necessary to protect himself against the peace officer’s
(or other person’s) use or attempted use of greater force than
necessary.

Shadden v. State, No. 07-10-0331-CR, 2012 Tex. App. LEXIS 4001, at *5 (Tex. App.—

Amarillo May 18, 2012, no pet.) (mem. op., not designated for publication) (citing TEX.

PENAL CODE ANN. § 9.31(c)).

Appellant never made an argument or presented any evidence indicating that the

officers used or attempted to use greater force than necessary in executing the search

warrant. While the evidence presented showed the circumstances were chaotic, there is

no indication of any excessive force by the officers. Accordingly, Appellant was not

entitled to an instruction concerning self-defense. Shadden, 2012 Tex. App. LEXIS 4001,

at *7-8. See also Mercer v. State, 2017 Tex. App. LEXIS 10088, at *11-12. We overrule

Appellant’s first issue.

ISSUE TWO—SUFFICIENCY OF THE EVIDENCE AFTER ACQUITTAL ON GREATER OFFENSE

Via his second issue, Appellant argues that the jury acquitted him of the only

permissible theory of criminal conduct (aggravated assault against a public servant) and,

had the jury been properly instructed regarding self-defense, it would have acquitted him

of aggravated assault as well. He further contends the evidence is insufficient to support

his conviction for aggravated assault.

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 When determining whether there is sufficient evidence to support a criminal

conviction, we consider the combined and cumulative force of all admitted evidence in

the light most favorable to the verdict to determine whether, based on that evidence and

the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond

a reasonable doubt. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).

Although the State must prove that a defendant is guilty beyond a reasonable doubt, the

State’s burden does not require it to disprove every conceivable alternative to a

defendant’s guilt. Tate, 500 S.W.3d at 413. In a sufficiency inquiry, direct evidence and

circumstantial evidence are equally probative. Id. (citing Winfrey v. State, 393 S.W.3d

763, 771 (Tex. Crim. App. 2013)).

The jury is the sole judge of credibility of the witnesses and weight to be attached

to their testimony, and juries may draw multiple reasonable inferences from the facts, so

long as each inference is supported by the evidence presented at trial. Jackson, 443 U.S.

at 319. See Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). The jury is

not, however, allowed to draw conclusions based on mere speculation. Hooper, 214

S.W.3d at 16. Unlike a reasonable inference, speculation is insufficiently based on the

evidence to support a finding beyond a reasonable doubt. Id. When the record supports

conflicting inferences, we presume that the jury resolved the conflicts in favor of the

verdict. Jackson, 443 U.S. at 326.

As charged in the indictment herein, a person commits aggravated assault on

a public servant by intentionally or knowingly threatening a public servant with imminent

bodily injury while using or exhibiting a deadly weapon during the commission of that

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offense. See TEX. PENAL CODE ANN. § 22.01(a)(2); § 22.02(a)(2), (b)(2)(B). A person

commits “simple” aggravated assault by intentionally or knowingly threatening another

with imminent bodily injury while using or exhibiting a deadly weapon during the

commission of the offense. TEX. PENAL CODE ANN. § 22.01(a)(2); § 22.02(a)(2). Here,

Appellant admitted he pointed a firearm at one of the men who entered his home—

conduct which standing alone could constitute aggravated assault. What Appellant did

not admit was his knowledge that the person at whom he pointed the weapon was a police

officer.

Appellant contends that the facts of this case lead to only two rational conclusions:

(1) Appellant knew the SWAT team entered his home and he pointed a gun at one of the

officers despite this knowledge or (2) Appellant did not know the people who entered his

home were law enforcement personnel and he pointed a gun at a person he thought was

breaking into his home. Appellant argues that because the jury acquitted him of

aggravated assault on a public servant that negates the first rational conclusion. He

asserts that the remaining facts are insufficient to prove guilt based on the second rational

conclusion because he would be protected by the law of self-defense.

We disagree. A similar argument was made by the defendant in Harrell v. State,

No. 03-18-00391-CR, 2020 Tex. App. LEXIS 4131, at *12-13 (Tex. App.—Austin May 28,

2020, no pet.) (mem. op., not designated for publication). There, like here, the defendant

did not argue that the evidence failed to prove any element of aggravated assault. Id.

Rather, he argued the evidence established that he was justified in committing the assault

and maintained that the jury’s acquittals of him of the greater offenses of attempted capital

murder, attempted murder, and aggravated assault on a public servant showed that the

11
jury concluded the defendant did not realize that the people entering his home were police

officers. Id. As such, he argued the evidence was insufficient to reject his justification

defenses because the evidence demonstrated he was shooting at “armed intruders

invading [his] home” and he was justified in protecting himself, his mother, and his

property. Id. at *13.

The court noted that the defendant’s argument was “contingent on eliminating from

consideration all the evidence demonstrating that police officers lawfully executing a

search warrant—rather than armed intruders—were entering his home because, in [the

defendant’s] view, it is inconsistent with the jury’s verdicts rejecting aggravated assault of

a public servant and convicting him only of aggravated assault.” Id. But, the court stated,

the “law does not bar inconsistent verdicts.” Id. (citing Hernandez v. State, 556 S.W.3d

308, 321 (Tex. Crim. App. 2017) (quoting Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex.

Crim. App. 2015)); see United States v. Powell, 469 U.S. 57, 68-69, 105 S. Ct. 471, 83 L.

Ed. 2d 461 (1984)). Thus, inconsistent verdicts, even when based on the same evidence,

do not require reversal on the ground of legal insufficiency. Harrell, 2020 Tex. App. LEXIS

41431, at *13-14 (citations omitted). A jury’s verdict should not be disturbed by appellate

speculation or inquiry even when an inconsistent verdict might have been the result of

compromise or mistake. Id. (citations omitted). We will therefore uphold a jury’s verdict

so long as the evidence supports the finding of guilt concerning aggravated assault and

it supports the rejection of any justification defenses. Id. (citing Hernandez, 556 S.W.3d

at 321).

Here, Appellant conceded, and the undisputed evidence showed, that he

intentionally and knowingly threatened the officers with death or bodily injury by pointing

12
his gun at them from behind his bedroom door, thereby exhibiting that deadly weapon in

their direction. Those facts alone provide sufficient evidence to support each element of

the offense of aggravated assault. The fact that the jury acquitted Appellant of the greater

offense of aggravated assault of a public servant does not negate that evidence. As the

court concluded in Harrell, even if the jury believed Appellant was subjectively unaware

that the individuals entering his home were the police, thereby negating the mens rea for

aggravated assault on a public servant, the jury could have concluded that such a belief

was not reasonable under the circumstances, Harrell, 2020 Tex. App. LEXIS 4131, at

*17-18 (citing Ruffin v. State, 270 S.W.3d 586, 594-95 (Tex. Crim. App. 2008)), and found

him guilty of aggravated assault as a result. The evidence here showed the execution of

the warrant took place at noon, not during the night hours. The SWAT team members

were dressed in clothing and vests with “POLICE” clearly printed on them. They

announced their presence so loudly that a neighbor down the street heard the

announcement. SWAT officers used a tool to break down the front doors and broke a

window for a distraction, making noise that the jury could have concluded no burglar

would have made. The evidence also showed Appellant’s home had been recently

burglarized and the jury had before it evidence indicating the SWAT team’s entry was

quite unlike a routine burglary, making it more likely that it was law enforcement entering

the home rather than armed intruders. Lastly, SWAT officers testified to finding a

television in Appellant’s bedroom that appeared to show a live feed of events from

cameras outside the home. The jury could have taken this as evidence showing Appellant

knew it was the police who were entering his home. Because the jury acquitted Appellant

of the greater offense and convicted him of the lesser offense, one might presume it did

13
so as a compromise. As an appellate court, we are not to speculate on the reasons for a

jury’s verdict and will not disturb the decision when the evidence is sufficient to support

its verdict. Harrell, 2020 Tex. App. LEXIS 4131, at *13-14. Accordingly, we find the

evidence sufficient to support Appellant’s conviction of aggravated assault and overrule

his second issue.

ISSUE THREE—SECOND AMENDMENT AND ARTICLE 1, SECTION 23 OF THE TEXAS
CONSTITUTION

In his third issue, Appellant argues he was convicted of conduct protected by the

Second Amendment and article 1, section 23 of the Texas Constitution. 9 The State

responds that Appellant failed to preserve this issue for appellate review. We agree.

Before presenting a complaint for appellate review, it must be shown that the

complaint was raised with the trial court by a timely request, objection, or motion that

stated the grounds for the ruling with sufficient specificity to make the trial court aware of

the complaint, and that the trial court rule on the request, objection, or motion. TEX. R.

APP. P. 33.1(a).

The preservation requirements that apply to a constitutional challenge depend on

the nature of the right allegedly infringed. The Texas Court of Criminal Appeals has

divided these rights into three categories:

9 The Second Amendment to the United State Constitution provides “A well regulated Militia, being

necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.” U.S. CONST. amend. II. Article 1, section 23 provides that every citizen has the right to keep and
bear arms in the lawful defense of himself or the State but that the legislature may regulate the wearing of
arms, with a view to prevent crime. TEX. CONST. art I, § 23.

14
 (1) absolute, systemic requirements and prohibitions that cannot be waived;

(2) rights of litigants that must be implemented by the system unless
expressly waived; and

(3) rights of litigants to be implemented upon request.

Roman v. State, 571 S.W.3d 317, 320 (Tex. App. 2018) (citing Ex parte Heilman, 456

S.W.3d 159, 162 (Tex. Crim. App. 2015) (quoting Marin v. State, 851 S.W.2d 275, 279

(Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262 (Tex.

Crim. App. 1997)). “Except for complaints involving systemic (or absolute) requirements,

or rights that are waivable only . . . all other complaints, whether constitutional, statutory,

or otherwise, are forfeited by failure to comply with [Texas] Rule [of Appellate Procedure]

33.1(a).” Roman, 571 S.W.3d at 320 (citing Mendez v. State, 138 S.W.3d 334, 342 (Tex.

Crim. App. 2004)).

Appellant’s complaint is one that is waivable in nature. The record before us does

not show Appellant raised his complaint concerning the Second Amendment or article 1,

section 23 of the Texas Constitution with the trial court. Accordingly, he has waived this

issue for our review. As such, we resolve Appellant’s third issue against him.

ISSUE FOUR—EGREGIOUS HARM DUE TO INCLUSION OF LESSER-INCLUDED OFFENSE

Through his last issue, Appellant argues that under the facts of this case,

aggravated assault was not a valid rational alternative to aggravated assault of a public

servant. Thus, he contends, the trial court should not have included an instruction

permitting the jury to consider the lesser-included offense of aggravated assault. We

disagree.

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 The Court of Criminal Appeals has established a two-pronged test to determine

the propriety of the inclusion of a lesser-included offense instruction in the charge to the

jury. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); Skinner v. State, 956

S.W.2d 532, 543 (Tex. Crim. App. 1997). First, the lesser-included offense must be

included within the proof necessary to establish the offense charged, and second, some

evidence must exist in the record that would permit a jury to rationally find that if the

defendant is guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 535-36;

Skinner, 956 S.W.2d at 543 (citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.

App. 1993)). See Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998). However, when

the State requests the lesser-included offense instruction (as occurred here) it is only

required to satisfy the first prong of the test and is not bound by the second. Grey v.

State, 298 S.W.3d 644, 645 (Tex. Crim. App. 2009). See West v. State, No. 11-13-00298-

CR, 2015 Tex. App. LEXIS 11224, at *5 (Tex. App.—Eastland Oct. 30, 2015, pet. ref’d)

(mem. op., not designated with publication) (citing Grey, 298 S.W.3d at 645).

The first step of our analysis is one of law. Hall, 225 S.W.3d at 535. The Code of

Criminal Procedure defines an offense as 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. TEX. CODE CRIM.

PROC. ANN. art. 37.09. See Hall, 225 S.W.3d at 536; Irving v. State, 176 S.W.3d 842, 845

16
(Tex. Crim. App. 2005). Whether an offense falls within this definition does not depend

on the evidence to be produced at trial but rather is performed before trial by comparing

the elements of the offense as they are alleged in the indictment or information with the

elements of the potential lesser-included offense. Hall, 225 S.W.3d at 535-36.

As set forth in our previous discussion, a person commits aggravated assault on

a public servant by intentionally or knowingly threatening a public servant with imminent

bodily injury while using or exhibiting a deadly weapon during the commission of the

offense. See TEX. PENAL CODE ANN. § 22.01(a)(2); § 22.02(a)(2), (b)(2)(B). A person

commits aggravated assault by intentionally or knowingly threatening another with

imminent bodily injury while using or exhibiting a deadly weapon during the commission

of the offense of assault. Id. at § 22.01(a)(2); § 22.02(a)(2). Aggravated assault requires

proof of all of the same elements as aggravated assault on a public servant except the

element that Appellant knew the victim was a public servant. Therefore, under the

requisite analysis, aggravated assault is a lesser-included offense of aggravated assault

of a public servant. Because the State is not bound by the second prong of the analysis,

we do not reach it. As such, we find the trial court did not err in including an instruction

permitting the jury to consider the lesser-included offense of aggravated assault in its

charge to the jury. Finding no error, we do not reach the issue of harm. Kirsch v. State,

357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We resolve Appellant’s last issue against

him.

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 CONCLUSION

Having overruled each of Appellant’s issues, we affirm the judgment of the trial

court.

Patrick A. Pirtle
Justice

Do not publish.

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