Jarrad Babineaux v. State

• Court: Court of Appeals of Texas
• Decided: July 6, 2007
• Docket: 01-06-00608-CR
• Status: Published

Opinion

Opinion issued July 6, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00608-CR

NO. 01-06-00609-CR

____________

JARRAD JOSEPH BABINEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 1070904 & 1070905

MEMORANDUM OPINION

A jury found appellant, Jarrad Joseph Babineaux, guilty of the offenses of aggravated assault on a public servant with a deadly weapon ⁽¹⁾ and aggravated robbery. ⁽²⁾ The jury assessed his punishment at confinement for twenty years and a $7,500 fine in the aggravated assault case and confinement for fifteen years and a $7,500 fine in the aggravated robbery case, with the sentences to run concurrently. In five issues, appellant contends that the evidence is legally and factually insufficient to support both of his convictions due to a fatal variance in the indictments and the evidence which showed that a "CO₂ pistol is not a deadly weapon" and to support his conviction of aggravated robbery as both "complainants denied that a robbery occurred"; the State engaged in improper jury argument; and his convictions for both aggravated robbery and aggravated assault violate the Double Jeopardy Clause ⁽³⁾ of the United States Constitution.

We affirm.

Factual and Procedural Background

Jessica Svetlik, an employee at West Southern National Bank, testified that on September 16, 2005, shortly after 1:00 p.m., as she was sitting at her desk and as Deputy Cantu, a security guard, was sitting at the officers' station, "two people [came] running in and screaming." The officers' station is located approximately five to six feet to the immediate right of Svetlik's desk, with the tellers located in front of her desk to the far left. Both assailants wore black outfits, and one wore a white mask. In their hands, one man had a "black gun" and the other man had a "shiny silver gun." The two men entered the bank through the lobby and ran straight toward Deputy Cantu's station, yelling, "Give me your gun." Svetlik told the two men to stop, and they yelled, "No. This is for real." As one of the men stood in front of Cantu holding the silver gun up against him, the man with the black gun struggled with Cantu and tried to take his gun. Both kept telling Cantu to give them his gun. After the man with the black gun stopped struggling with Cantu, Svetlik put her head down, said to herself, "I'm going to die here," and then heard two gunshots fired from within the lobby. When she looked up, she saw Cantu chasing the two men out of the bank. Svetlik threw her keys to another employee and told him to lock the front door, while Svetlik called for emergency assistance.

Svetlik further testified that the only time that the two assailants addressed her directly was when one of the men said, "This is for real." She explained that the man with the silver gun stood in front of her and alternated pointing the gun toward her and Cantu. The entire struggle took place in the area of the officers' station, and neither assailant approached the teller windows to demand money, either verbally or in writing, because they were struggling with Cantu. She noted that one weapon was "black and it looked like a gun" and the other weapon was silver and "very shiny." The two shots were fired inside the lobby, and after the shots were fired, the two men and Cantu ran out of the bank. On the day in question, the bank had $250,000 in its vault, and the three tellers had $20,000 each.

Fort Bend Sheriff's Deputy J.A. Cantu testified that he was working an "extra job" at the bank, sitting at his desk, when he saw "two gentlemen in masks" approximately "five to ten feet" away from him. Cantu stood up as soon as he saw the two men and "both of their guns," thinking that "something really bad is about to happen." One of the men pointed a black gun at Cantu's stomach and demanded Cantu's gun as he held Cantu's shirt. The other man, with a silver gun, stood to the right of the man with the black gun. At this point, Cantu did not know that the black gun was a "BB gun." The man holding Cantu's shirt turned to the other man and said, "Shoot this mother fucker." Cantu hit the man's hand with his left hand, drew his weapon, took two steps, pointed his gun at them, and told them to drop their guns. Neither of the two men dropped their weapons, and Cantu shot twice. The two men "took off running" at the same time. Cantu holstered his weapon and told the bank employees to call for emergency assistance.

Cantu further testified that the two men veered in different directions. Cantu followed one of the men, who he later identified as appellant, toward his left. When the other man went over a fence, Cantu heard a firearm discharge. Eventually, once Cantu was "pretty close" to appellant, Cantu drew his weapon, ordering him to "get to the ground," but appellant collapsed. With his firearm drawn, Cantu told appellant to show him both his hands, and appellant told Cantu that his arm was broken. Once Cantu saw that appellant did not have anything in his hands, Cantu handcuffed him. After appellant told Cantu that he had been shot, Cantu turned him over, patted him down, and saw that he had been shot. Cantu noted that appellant, who was no longer wearing a mask, was wearing a black t-shirt, gray pants, and black gloves. Appellant told Cantu that Cantu had shot him for "no reason." A woman then approached Cantu and told Cantu that appellant had dropped something behind him. Cantu looked down and saw a gun. After another officer arrived and appellant's shirt was removed, Cantu discovered that appellant had two bullet wounds. Cantu also found a trash bag on appellant. "That's when it really hit [Cantu] that they were really there to rob the place."

On cross-examination, Cantu explained that the assailants were inside the bank for "[m]aybe 15 to 20 seconds" before the shooting occurred. Cantu did not recall that the assailants said anything to Svetlik. Additionally, he was not aware of the assailants making any demands for money or other property to any of the bank tellers. The only demand that the two assailants made was for Cantu's firearm. He never saw the assailants point any weapons in a direction other than toward himself, and Cantu agreed that a robbery did not occur because the assailants did not make any demands or take any property. However, on re-direct examination, Cantu further testified that it was not accurate to say that a robbery did not take place because the only reason that a robbery did not occur was due to Cantu's preventative actions.

Houston Police Department ("HPD") Officer J.N. Duerer testified that inside the bank, he found two fired cartridge cases from a .40 caliber Smith & Wesson Winchester located on the floor near a security desk. In the parking lot outside the bank, Duerer recovered a mask, described as "like a Halloween mask." HPD Officer Farmer gave a pistol that he recovered to Duerer. Duerer knew that the pistol was not a "real weapon" because he was able to fully view the weapon and see the BB clip at the bottom, which he typically does not see on "real firearms." Duerer explained that, except for the BB clip, the weapon looked like any other firearm that he had seen.

HPD Forensic Firearms Laboratory Supervisor M. Lyons testified that he examined a .40 caliber Glock pistol, a fired bullet jacket, a fired .380 auto cartridge case, two fired .40 caliber cartridge cases, and a "pneumatic pistol." The official name for the pneumatic pistol is a "BB gun," also called an "air pistol." Lyons explained that a "pneumatic pistol or a pneumatic gun uses a compressed gas, not the result of combustion of powder. In this pistol, the compressed gas is CO₂ and not air." In order to determine whether the weapon was capable of causing serious bodily injury, he had to determine the potential velocity of a projectile from the weapon. Lyons noted that, generally, a velocity of approximately 275 feet per second has the potential to penetrate skin, but without doing any "specific empirical testing," the "300 and 350 feet per second range would be sufficient, in [his] opinion, to penetrate skin." Moreover, "if it can penetrate skin, then it does have the ability to cause serious bodily injury and potentially death."

Lyons tests of the pneumatic pistol with the nine BB's submitted with it demonstrated an average velocity of 438 feet per second, with a range from 418 to 457 feet per second. After the State gave Lyons the legal definition of a "deadly weapon" as "[a]nything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its intended use is capable of causing death or serious bodily injury," Lyons stated that, in his expert opinion, the pneumatic pistol was a deadly weapon. Lyons further explained that it had the highest velocity that he had measured for this type of weapon. He also noted that the weapon had a warning label from the manufacturer stating, "Warning. Not a toy. Misuse or careless use may cause serious injury or death."

Lyons further testified that a CO₂-powered weapon, such as the one at issue here, gets its power from compressed CO₂ in a "powerlet." He noted that there is a distinction between a "CO₂ pistol" and an "air pistol," in which a pumping action compresses the gas that provides the pressure necessary to project a BB or a pellet. However, Lyons also explained that although the general term for such a weapon is "pneumatic gun" and it does not use air, it is very common to refer to such a weapon as an "air gun."

Sufficiency of the Evidence

We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Variance

In his first issue, appellant argues that "the evidence is insufficient to sustain a conviction based on the fatal variance between the indictment, trial evidence and court's charge on the element of a deadly weapon, namely, an 'air pistol.'" Both indictments, for aggravated robbery and aggravated assault of a public servant, alleged that appellant used and exhibited an "air pistol." Appellant asserts that a variance exists because Lyons testified that the gun "was not, as described in the indictment, an 'air pistol,' but more correctly, a 'CO₂ pistol,'" and that there is a differentiation associated with the nomenclature.

A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). When faced with a legal sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a "material" variance will render the evidence insufficient. Id. at 257. A variance between the wording of an indictment and the evidence presented at trial is fatal only if it is material and prejudices the defendant's substantial rights. Id. This "materiality" inquiry requires a determination of whether the variance deprived the defendant of notice of the charges or whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002).

Here, it is true that Lyons testified that there is a distinction between a CO₂ pistol and an air pistol and that the general term for the weapon in this case is a "pneumatic gun." However, Lyons also testified that although the weapon does not use air, it is very commonly referred to as an "air gun" and an "air pistol." Furthermore, even assuming that a variance existed between the indictment and the proof at trial, such a variance would be immaterial. There is no indication in the record that appellant did not know what weapon he was accused of exhibiting, no indication that he was surprised by the proof at trial, and, finally, such a variance would not subject him to another prosecution for the same offense. See Gollihar, 46 S.W.3d at 257; Fuller, 73 S.W.3d at 254. Accordingly, we hold that the term "air pistol," as used in the indictments, does not render the evidence legally or factually insufficient to support appellant's convictions.

We overrule appellant's first issue.

Deadly Weapon

In his second issue, appellant argues that the evidence is legally and factually insufficient to support his conviction for both aggravated robbery and aggravated assault on a public servant because "the CO₂ pistol is not a deadly weapon." A deadly weapon includes "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2006). In support of his argument, appellant asserts that "[t]he State's own firearms expert did not say it was loaded"; "there is no evidence that the airgun was loaded"; "[t]he firearms expert testified that the BB's submitted to him by police were not in the weapon, but merely with the weapon"; and "[t]here was no testimony that the BB gun contained any live rounds of pellets."

However, the Texas Court of Criminal Appeals has held that whether a defendant's BB gun is loaded or unloaded is not significant in the analysis. Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002). In Adame, the defendant pointed a BB gun at a store clerk and demanded money. Id. at 581. A police investigator testified that the BB gun could cause serious bodily injury if it were pointed and fired at someone. Id. In finding the evidence insufficient to support the jury's deadly weapon finding, the Waco Court of Appeals found it significant in its deadly weapon analysis whether the defendant's BB gun was loaded or unloaded. Id. The Court of Criminal Appeals, however, noted that what is significant is whether a defendant's BB gun is capable of causing serious bodily injury:

It is not necessary, however, to place an additional evidentiary burden on the State to affirmatively prove that a BB gun, which is not a deadly weapon per se, was loaded at the time of the commission of the offense. Rather, in proving use of a deadly weapon other than a deadly weapon per se, the State need show only that the weapon used was capable of causing serious bodily injury or death in its use or intended use.

Id. at 582. Accordingly, the court held that the evidence that the defendant displayed the BB gun to the convenience store clerk and that the gun was capable of causing serious bodily injury if pointed and fired at someone was sufficient to support the jury's deadly weapon finding. Id.

Here, the State did not affirmatively prove that the CO₂ weapon was loaded at the time of the commission of the offenses. However, as noted above, the State was not required to prove that the weapon was loaded. See id. Additionally, Lyons testified that when he tested the CO₂ weapon, he found an average velocity of 438 feet per second, with a range from 418 to 457 feet per second, far exceeding a velocity capable of penetrating the skin. After the State provided Lyons with the legal definition of a deadly weapon, Lyons stated that, in his expert opinion, the air pistol was a deadly weapon, capable of causing serious bodily injury or death. Additionally, he read the manufacturer's warning label which stated, "Warning. Not a toy. Misuse or careless use may cause serious injury or death." Accordingly, we hold that the evidence is legally and factually sufficient to support the jury's finding that appellant used or exhibited a deadly weapon during the commission of the offenses.

We overrule appellant's second issue.

Aggravated Robbery

In his third issue, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated robbery, or alternatively, robbery, because Deputy Cantu "admitted that neither man demanded money or other property other than Cantu's gun," nothing was taken from the bank, and Svetlik "admitted that neither man demanded any money or any other property, verbally or in writing, from her or any other person at any point during the event." Appellant asserts that it cannot "simply be inferred that a robbery occurred when the State's own witnesses testified that a robbery never occurred and that there were no demands for money or property as alleged in the indictment."

A person commits the offense of 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. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003). "In the course of committing theft" means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft. Id. § 29.01(1) (Vernon 2003). Proof of a completed theft is not required to establish the underlying offense of robbery. Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003). While an intent to steal must be shown in order to prove an attempted theft, this intent may be inferred from circumstantial evidence. Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996).

Here, viewing the evidence in a light most favorable to the verdict, Svetlik testified that two men, both wearing masks and carrying guns, came into the bank lobby running and screaming. One of the suspects yelled at Cantu, stationed at the officers' desk, to give them his gun and told Svetlik, "This is for real." Svetlik additionally testified that there was $310,000 in cash on hand at the bank. Cantu testified that while appellant was holding a gun to his stomach, the other assailant was also brandishing a firearm. Moreover, when Cantu was finally able to apprehend appellant, he found a trash bag on appellant, leading Cantu to the conclusion that "they were really there to rob the place." We conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for the offense of aggravated robbery.

Viewing the evidence neutrally, it is true that Svetlik testified that at no time did either of the assailants approach anyone demanding money, either verbally or in writing, and that the only demand the assailants made was for Cantu's firearm. Additionally, Cantu agreed that no robbery took place because the assailants did not make any demands or take any property. However, we again note that proof of a completed theft is not required to establish the underlying offense of robbery and, while an intent to steal must be shown in order to prove an attempted theft, this intent may be inferred from circumstantial evidence. Wolfe, 917 S.W.2d at 275. Here, the jury may have rationally inferred that appellant and the other assailant were there to rob the bank, but were foiled by Deputy Cantu's actions. We conclude that the evidence is not so obviously weak such that the verdict seems clearly wrong and manifestly unjust, or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction for the offense of aggravated robbery.

We overrule appellant's third issue.

Improper Jury Argument

In his fourth issue, appellant argues that the State "erred during argument by misstating the law, advising the jury that [it] didn't have to prove all the elements in the indictment to sustain a conviction, namely, that [it] did not have to prove what type of gun was used in the commission of the offense."

Appellant complains of the following argument:

[State]: [Appellant's counsel] is going to get up and say, "The State, you know what they proved? They pled it as an air pistol. But know what they proved, they proved it was a CO₂ pistol."

Let me tell you what; that don't fly. Okay?

Because when we plead these cases, we plead them in generalities.

After appellant made his closing argument, the State rebutted, "I don't have to prove--I have to prove a firearm. I don't have to prove that it's a .38 or a .45. I just got to prove that it's a firearm." ⁽⁴⁾

Generally, there are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to the argument of opposing counsel; and (4) pleas for law enforcement. Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd).

Appellant concedes that "there was no objection despite the prosecutor's repeated misstatement of the law during argument," but argues that "the Court of Appeals may still reverse for unobjected-to argument error." However, the Texas Court of Criminal Appeals has held that a defendant's failure to object to a jury argument forfeits the right to complain about the argument on appeal. See, e.g., Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (noting that in Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), court expressly overruled precedent allowing defendant to complain, for first time on appeal, about unobjected-to erroneous jury argument that was so prejudicial it could not have been cured by instruction to disregard).

Here, appellant did not object to the State's argument. Accordingly, we hold that appellant has waived any error regarding the State's jury argument. See Tex. R. App. P. 33.1.

We overrule appellant's fourth issue.

Double Jeopardy

In his fifth issue, appellant argues that "error occurred and appellant's double jeopardy rights under the Fifth Amendment of the U.S. Constitution were violated by his convictions for both aggravated robbery and aggravated assault because aggravated assault is a lesser[-]included offense of the aggravated [robbery]."

In regard to aggravated robbery, the indictment alleges that appellant,

. . . heretofore on or about September 16, 2005, did then and there unlawfully, while in the course of committing theft of property owned by Jessica Svetlick [sic] and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place Johnny Cantu in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to wit: an Air Pistol.

In regard to aggravated assault on a public servant, the indictment alleges that appellant,

. . . heretofore on or about September 16, 2005, did then and there unlawfully, intentionally and knowingly threaten with imminent bodily injury Johnny Cantu, hereafter called the Complainant, while the Complainant was lawfully discharging an official duty, by using and exhibiting a deadly weapon, namely An Airpistol, knowing that the Complainant was a public servant. ⁽⁵⁾

The Double Jeopardy Clause of the U.S. Constitution provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." See U.S. Const. amend V. The Double Jeopardy Clause prohibits the State from prosecuting a defendant for any lesser offense included within the offense alleged in the indictment, since, for purposes of the Clause, a greater offense and a lesser included offense are "the same offence." Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim. App. 2004) (citing Brown v. Ohio, 432 U.S. 161, 168, 97 S. Ct. 2221, 2226 (1977)). In Blockburger v. United States, the Supreme Court set forth the test for determining whether two offenses constitute the same offense for purposes of the Double Jeopardy Clause:

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

. . . .

A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932) (citations omitted).

Under the Texas Code of Criminal Procedure, 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.

Tex. Crim. Proc. Ann. art. 37.09 (Vernon 2006).

The Texas Court of Criminal Appeals has recently clarified the method for determining whether the allegation of a greater offense includes a lesser offense. See Hall v. State, No. PD-1594-02, 2007 WL 1343110, at *1 (Tex. Crim. App. May 9, 2007). The court phrased the issue as "whether 'the facts required' in Article 37.09(1) are determined by the evidence adduced at trial, or whether the determination is a question of law that can be answered before the trial begins by looking at the elements and facts alleged in the charging instrument." Id. at *5. The court held that the "pleadings" approach is the sole test for determining in the first step whether a party may be entitled to a lesser-included offense instruction. Id. at *8. In describing the "cognate-pleadings" approach, the court stated that a court "looks to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense." Id. at *1. The availability of a lesser-included instruction in a given case depends on the second step, whether there is some evidence adduced at trial to support such an instruction. Id. at *8.

The first step in the lesser-included offense analysis, determining whether an offense is a lesser-included offense of the alleged offense, is a question of law. Id. It does not depend on the evidence to be produced at the trial. Id. It may be, and to provide notice to the defendant must be, capable of being 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. Id.

The evidence adduced at trial should remain an important part of the trial court's decision whether to charge the jury on lesser-included offenses. Id. at *9. The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury. Id. A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. In other words, the evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense." Id.

Here, appellant contends that the aggravated assault of Deputy Cantu is a lesser-included offense of aggravated robbery. Applying the first step of the lesser included-offense analysis, we do not consider the evidence that was presented at trial. Instead, we consider only the statutory elements of attempted robbery as they were modified by the particular allegations in the indictment:

(1) appellant;

(2) unlawfully, while in the course of committing theft of property owned by Jessica Svetlik and with intent to obtain and maintain control of the property;

(3) intentionally and knowingly threatened and placed Johnny Cantu in fear of imminent bodily injury and death;

(4) by using and exhibiting a deadly weapon, to wit: an Air Pistol.

We then compare these elements with the elements of the offense of aggravated assault on a public servant:

(2) intentionally or knowingly threatens another with imminent bodily injury;

(3) using or exhibiting a deadly weapon during the commission of the offense; and

(4) the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.

See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B).

We then ask the question that article 37.09(1) poses: are the elements of the purported lesser offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged?" Here, the answer is no. The facts required to prove an aggravated assault on a public servant are not the same as, or less than, those required to prove an aggravated robbery. Specifically, the offense of aggravated assault on a public servant requires proof that the offense was committed against a person the actor knew was a public servant while the public servant was lawfully discharging an official duty. Id. § 22.02(b)(2)(B). The offense of aggravated assault on a public servant is not a lesser-included offense of the offense of aggravated robbery. Accordingly, we hold that the prosecution of appellant for both the offenses of aggravated robbery and aggravated assault on a public servant did not violate the Double Jeopardy Clause of the U.S. Constitution.

We overrule appellant's fifth issue.

Conclusion

We affirm the judgments of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B) (Vernon Supp. 2006). Appellate Cause Number 01-06-00608-CR; Trial Court Cause Number 1070905.

2.

See id. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2003). Appellate Cause Number 01-06-00609-CR; Trial Court Cause Number 1070904.

3.

See U.S. Const. amend. V.

4.

In his brief, appellant asks this Court to "follow Robledo . . . and reverse his conviction based on the prosecutor's improper argument." Appellant does not provide a citation to this purported authority.

5.

A person commits the offense of aggravated assault on a public servant if the person intentionally or knowingly threatens another with imminent bodily injury and the person uses or exhibits a deadly weapon during the commission of the offense, and the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), 22.02(b)(2)(B).