Opinion issued December 11, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00318-CR ——————————— MATTHEW LYNN HAIRGROVE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1556769
MEMORANDUM OPINION
Appellant, Matthew Lynn Hairgrove, was indicted for the felony offense of
aggravated robbery. The jury found appellant guilty of the lesser-included offense
of aggravated assault and, after finding the enhancement allegation true, assessed his
punishment at fifteen years’ confinement. In two points of error, appellant contends that the trial court erred in denying his request to submit instructions to the jury on
the lesser-included offenses of robbery and misdemeanor assault. We affirm.
Background
On June 17, 2017, Christian Bankhead, his girlfriend, Keeley Price, Keeley’s
mother, Melissa Price, and appellant, Melissa’s boyfriend, traveled to Marshall,
Texas, to visit Melissa’s mother, who had been ill. Melissa drove, appellant sat in
the passenger seat, Christian sat in the rear driver’s seat behind Melissa, and Keeley
sat in the rear middle seat next to Christian. During the trip, Christian noticed that
appellant had a baseball bat on his lap, and that he was carving it with a knife.
The next day, on their way back to Houston, they stopped at appellant’s
father’s house in Henderson, Texas. While appellant and Melissa visited with
appellant’s father, Christian and Keeley remained in the car. When appellant and
Melissa returned to the car, Christian noticed that appellant was carrying a long gun
bag containing what was later identified as a shotgun. Appellant got into the car and
placed the gun bag next to him. When Christian asked appellant why he had a
shotgun, appellant “said something about dove hunting or bird hunting[.]”
Back in Houston, appellant and Melissa dropped Keeley off at her father’s
house before taking Christian home. Christian thought it was “weird” because his
home was closer than Keeley’s father’s house, but he “just brushed it off.” Christian
testified that, after they left Keeley, Melissa continued driving and talked with
2 appellant when they suddenly said, “right now,” and Melissa slammed on the brakes.
Appellant, who was sitting in the passenger seat, turned around and started
“throwing punches” at Christian. Appellant punched Christian from his waistline to
the top of his head, with the punches landing mainly on his arms and his head.
Christian testified that when appellant punched him, it felt like a “metal bar” or a
“metal pole” had struck him. Christian saw that appellant had silver-colored brass
knuckles on his hand.
Christian began punching appellant back. When he did, appellant picked up
the bat. Due to the confined space in the car, appellant was unable to swing the bat
but he hit and jabbed Christian in the head and the arms with the bat in a “spear
fish[ing]” motion. Christian testified that he pressed himself against the car door in
an effort to take the blunt force of the bat with his arms.
When appellant stopped striking him with the bat, Christian tried to escape
but was unable to open the door. Christian testified that when he turned around
again, appellant pointed a shotgun in his face. Appellant then hit Christian on the
right side of his face with the shotgun, told Christian that he was going to “smoke”
him, and cocked the shotgun. Christian testified that, while he was being struck with
the brass knuckles, the bat, and the shotgun, he thought he was going to die. Melissa
then grabbed the shotgun and she and appellant began yelling at each other.
3 Appellant then demanded Christian’s phone. When Christian told him that it
was in his backpack, appellant grabbed the backpack and threw it on the passenger
side front floorboard. While pointing the shotgun in Christian’s face, he ordered
Christian to remove his shirt and pants and to get out of the car. When Christian was
unable to exit the car, appellant got out, opened Christian’s door, and yanked him
out of the car. Appellant told Christian that if he told anyone what had happened,
appellant would come back and “smoke” Christian and his father. Appellant got
back into the car and Melissa “floored it” and drove away. Christian walked to his
father’s house, and his father called the police.
As a result of the attack, Christian sustained a large gash to his head, a
laceration to his hand and one to his ear where his earring had been ripped out, and
bruises to his chest and neck. Emergency medical personnel evaluated Christian’s
injuries and told him that although he “could have used stitches” for the gash on his
head, they were unable to apply them because the injury was a tear rather than a cut.
When Officer Michael Turner with the Pasadena Police Department arrived, he
observed that Christian was covered in blood “pretty much head to toe . . . on his
face, head, arms and legs, chest, [and] torso.” Detective Wright, a sixteen-year
veteran of the Pasadena Police department, testified that a baseball bat is not
designed to be a deadly weapon but that, based on her experience, “[a]ll it takes is a
strike in the right place in the head to kill a person with a baseball bat.”
4 Keeley testified that she noticed that appellant was carrying a shotgun as they
left appellant’s father’s house to drive back to Houston. Keeley further testified that
she thought it was “a little weird” that her mother and appellant decided to drop
Keeley off first before Christian because “normally when [she] bring[s] someone
they get dropped off first[.]” Later that night, Christian’s father called Keeley and
told her what had happened.
Bobby Hairgrove, appellant’s father, testified that he owns five shotguns, he
keeps them in a locked safe in his house, and it would not have been possible for
appellant to take a shotgun from his home. He testified that he walked appellant and
Melissa to the car after their visit and that he would have seen a shotgun if appellant
had taken one with him.
Toward the end of trial, trial counsel requested that the jury be instructed on
the lesser offenses of aggravated assault, robbery, and Class A misdemeanor assault.
The trial court instructed the jury on the charged offense of aggravated robbery and
the lesser-included offense of aggravated assault, but it denied the requested
instructions on robbery and misdemeanor assault. The jury found appellant guilty
of the lesser-included offense of aggravated assault and assessed his punishment at
fifteen years’ confinement.
5 Discussion
In his first and second points of error, appellant contends that the trial court
erred in denying his request to submit instructions to the jury on the lesser-included
offenses of robbery and Class A misdemeanor assault.
A. Standard of Review and Applicable Law
Article 37.08 of the Texas Code of Criminal Procedure provides that “[i]n a
prosecution for an offense with lesser included offenses, the jury may find the
defendant not guilty of the greater offense, but guilty of any lesser included offense.”
TEX. CODE CRIM. PROC. ANN. art. 37.08. We apply a two-step analysis to determine
whether an instruction on a lesser-included offense should be included in the jury
charge. See State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall v.
State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007).
First, we compare the elements of the offense as charged in the indictment
with the elements of the asserted lesser-included offense. See Meru, 414 S.W.3d at
162; Hall, 225 S.W.3d at 535–36. This step is a question of law and does not depend
on evidence adduced at trial. See Hall, 225 S.W.3d at 535. An offense is a
lesser-included offense of the charged offense if the indictment for the
greater-inclusive offense either (1) alleges all of the elements of the lesser-included
offense, or (2) alleges elements plus facts from which all of the elements of the
lesser-included offense may be deduced. See TEX. CODE CRIM. PROC. ANN. art.
6 37.09(1). If the elements of the lesser-included offense can be deduced from facts
alleged in the indictment, they need not be pled in the indictment. See Ex parte
Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (per curiam).
If the analysis under the first step supports a determination that the requested
lesser offense is a lesser-included offense, then we consider “whether a rational jury
could find that, if the defendant is guilty, he is guilty only of the lesser offense.”
Meru, 414 S.W.3d at 162–63. “[A]nything more than a scintilla of evidence may be
sufficient to entitle a defendant to a charge on a lesser offense.” Cavazos v. State,
382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (citing Hall, 223 S.W.3d at 536).
However, “the evidence produced must be sufficient to establish the lesser-included
offense as a ‘valid, rational alternative’ to the charged offense.” Id. (quoting Hall,
225 S.W.3d at 536). “While it is true that the evidence may be weak or contradicted,
the evidence must still be directly germane to the lesser-included offense and must
rise to a level that a rational jury could find that if [the defendant] is guilty, he is
guilty only of the lesser-included offense.” Id. “Meeting this threshold requires
more than mere speculation—it requires affirmative evidence that both raises the
lesser-included offense and rebuts or negates an element of the greater offense.” Id.
A person commits robbery “if, in the course of committing theft . . . and with
intent to obtain or maintain control of the property, he . . . intentionally, knowingly,
or recklessly causes bodily injury to another.” TEX. PENAL CODE ANN. § 29.02(a)(1).
7 A person commits aggravated robbery “if he commits robbery . . . and he uses or
exhibits a deadly weapon[.]” Id. § 29.03(a)(2). A person commits assault if he
“intentionally, knowingly, or recklessly causes bodily injury to another[.]” Id. §
22.01(a)(1). A person commits aggravated assault if the person commits assault and
“uses or exhibits a deadly weapon during the commission of the assault.” Id. §
22.02(a)(2).
“Deadly weapon” means “a firearm or anything manifestly designed, made,
or adapted for the purpose of inflicting death or serious bodily injury . . . or anything
that in the manner of its use or intended use is capable of causing death or serious
bodily injury.” Id. § 1.07(17). Factors that a jury may consider in determining
whether an object is a deadly weapon under this second definition include (1) words
of the accused; (2) the intended use of the weapon; (3) the size and shape of the
weapon; (4) testimony by the victim that he feared death or serious bodily injury;
(5) the severity of any wounds inflicted; (6) the manner in which the assailant
allegedly used the object; (7) physical proximity of the parties; and (8) testimony as
to the weapon's potential for causing death or serious bodily injury. See Romero v.
State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
“Serious bodily injury” means “bodily injury that creates a substantial risk of death
or that causes death, serious permanent disfigurement, or protracted loss or
8 impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46) (West
2014).
Texas courts have concluded that brass knuckles and baseball bats, like any
object, may constitute deadly weapons where the evidence shows that the object was
used in a manner capable of causing serious injury or death. See, e.g., Babcock v.
State, 501 S.W.3d 651, 655 (Tex. App.—Eastland 2016, pet. ref’d) (concluding
rational jury could have found that tree branch was deadly weapon because evidence
indicated that branch was two to three feet long, defendant swung it as he ran toward
complainant, and that if complainant had been hit with branch, he would have been
knocked unconscious and probably killed); English v. State, 171 S.W.3d 625, 628
(Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding evidence was sufficient to
support conclusion that baseball bat constituted deadly weapon where defendant
swung bat at victim’s head with full force, and resulting blow to victim’s head caused
large gash and concussion, and defendant told victim he intended to kill him); see
also White v. State, No. 01-12-00087-CR, 2013 WL 4210827, at *17 (Tex. App.—
Fort Worth Aug. 15, 2013, no pet.) (mem. op., not designated for publication)
(concluding jury could have found that homemade spear, composed of staple and
paper, was deadly weapon where evidence showed defendant used it to jab
correctional officer in cheek because evidence showed object was capable of
puncturing skin and causing injury, from damage to unprotected eye to infection
9 with terminal disease); Chambers v. State, No. 05-92-00547-CR, 1993 WL 25375,
at *2–3 (Tex. App.—Dallas Jan. 29, 1993, pet. ref’d) (per curiam) (not designated
for publication) (concluding evidence was sufficient to permit rational trier of fact
to find that brass knuckles used by defendant constituted deadly weapon where
defendant hit complainant in mouth with brass knuckles, complainant sustained split
lip, and paramedics recommended that complainant receive stiches on his lip). “The
State need not establish that the use or intended use of an implement actually caused
death or serious bodily injury; only that ‘the manner’ in which it was either used or
intended to be used was ‘capable’ of causing death or serious bodily injury.” Moore
v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017) (emphasis in original).
B. Analysis
The indictment alleged that appellant
on or about JUNE 18, 2017, did then and there unlawfully, while in the course of committing theft of property owned by Christian Bankhead, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to Christian Bankhead, and [appellant] did then and there use and exhibit a deadly weapon, namely, a shotgun, a bat and brass knuckles.
The charged offense was aggravated robbery, the trial court instructed the jury on
the lesser-included offense of aggravated assault, and the jury found appellant guilty
of aggravated assault.
Assault is a lesser-included offense of robbery. To prove assault, the State
must prove that the defendant “intentionally, knowingly, or recklessly cause[d] 10 bodily injury to another[.]” TEX. PENAL CODE §22.01(a)(1). To prove robbery, the
State must prove that the defendant, “in the course of committing theft . . . and with
intent to obtain or maintain control of the property, . . . intentionally, knowingly, or
recklessly cause[d] bodily injury to another[.]” Id. § 29.02(a)(1). To prove either
aggravated assault or aggravated robbery, the State had to prove the underlying
offense plus the use or exhibition of a deadly weapon. See id. §§ 22.02(a)(2),
29.03(a)(2).
As alleged in the indictment, the only distinction between the offenses of
aggravated robbery and robbery and between the offenses of aggravated assault and
misdemeanor assault, is appellant’s use and exhibition of a deadly weapon. The
State acknowledges that, as alleged in the indictment, the offenses of robbery,
aggravated assault, and misdemeanor assault constitute lesser offenses of aggravated
robbery.
We must now determine whether a rational jury could find that, if appellant is
guilty, he is guilty only of the lesser offense of robbery or the lesser offense of
misdemeanor assault. To be entitled to an instruction on robbery or misdemeanor
assault, the record must contain some affirmative evidence that would have
permitted a rational jury to find the underlying offense (robbery or assault) and also
that appellant did not exhibit and use a deadly weapon in committing the attack, as
required for both aggravated robbery and aggravated assault. Specifically, there
11 must be affirmative evidence either that appellant had no weapon or that he did not
use the shotgun, the bat, or the brass knuckles in a manner capable of causing serious
bodily injury or death. See Cavazos, 382 S.W.3d at 385.
Appellant argues that, while a shotgun is a deadly weapon per se, there is
affirmative evidence showing that appellant did not have a shotgun. In support of
his argument, appellant points to his father’s testimony that appellant did not take a
shotgun from his house, it was not possible for appellant to have snuck a shotgun
out of his house, and he did not notice a shotgun in the car. Appellant’s father’s
testimony is some evidence that appellant did not have a shotgun. See id.
Appellant also argues that Christian’s testimony raised serious doubts about
whether the baseball bat and brass knuckles constituted deadly weapons—that is,
whether they were “capable of causing death or serious bodily injury” in the manner
of their use or intended use during the assault. In this regard, appellant points to the
evidence showing that (1) the assault occurred in a car and therefore appellant was
prevented from swinging the bat and, instead, only jabbed at Christian as if “spear
fishing”; (2) emergency medical personnel did not treat Christian’s injuries, he
received no stitches, no medical records were admitted at trial, and Keeley testified
that the only injuries she observed the day after the assault were “little scrapes and
bruises.”
12 While the evidence showed that the assault took place in a confined space
which prevented appellant from swinging the bat, it also showed that Christian was
in close physical proximity to appellant and had little opportunity to defend himself
against being struck by the bat. The jury heard evidence that appellant repeatedly
jabbed at Christian’s head and arms with the bat, that Christian had to press himself
against the car door in an attempt to take the blunt force with his arms, that when he
attempted to flee the car he could not open the door, and that he thought he was
going to die. See Romero, 331 S.W.3d at 83 (noting jury may consider, among other
factors, victim’s testimony that he feared death or serious bodily injury and physical
proximity of parties in determining whether object is deadly weapon). Detective
Wright, a sixteen-year veteran of the Pasadena Police Department, testified that a
baseball bat is not designed to be a deadly weapon but that, based on her experience,
it could be used as one because “[a]ll it takes is a strike in the right place in the head
to kill a person with a baseball bat.” See id. (listing testimony regarding weapon’s
potential for causing death or serious bodily injury as another factor jury may
consider in deadly weapon determination).
With regard to appellant’s assertion that Christian did not sustain serious
injuries, the State only needed to prove that the manner in which appellant used or
intended to use the brass knuckles and baseball bat was capable of causing death or
serious bodily injury. See Moore, 520 S.W.3d at 908. The jury heard evidence that
13 appellant repeatedly punched Christian with the brass knuckles from his waistline to
the top of his head. Christian testified that, when appellant struck him with the
knuckles, he felt as if he had been hit with a “metal bar” or “metal pole.” At the time
of trial, Christian still bore a scar on his hand where appellant had struck him with
the knuckles. Photos admitted at trial showed that Christian sustained a gash to the
top of his head, a laceration on his hand, a laceration on his ear where his earring
was ripped out and bruising to his chest and neck. Emergency medical personnel
evaluated Christian’s injuries and told him that although he “could have used
stitches” for the gash on his head, stiches were not an option because the injury was
a tear rather than a cut. Officer Turner testified that when he made contact with
Christian, he was “covered in blood . . . pretty much head to toe . . . on his face, head,
arms and legs, chest, [and] torso.” Here, appellant’s use of brass knuckles and a
baseball bat could have resulted in striking Christian in the eye, temple, or other area
of the head that could have resulted in a serious or fatal head or eye injury. See id.
The evidence established that in the manner in which appellant used or
intended to use the knuckles and baseball bat—by punching Christian in the head
and by striking, jabbing, and spearing him in the head—both weapons were capable
of causing death or serious bodily injury. There was no affirmative and directly
germane evidence from which a rational jury could have found that if appellant was
guilty, he was guilty only of either the lesser offense of robbery or the lesser offense
14 of misdemeanor assault. See Cavazos, 382 S.W.3d at 385. Therefore, appellant was
not entitled to instructions on these offenses, and the trial court did not err in refusing
to submit these instructions to the jury. See Barnett v. State, 344 S.W.3d 6, 16 (Tex.
App.—Texarkana 2011, pet. ref’d) (finding no evidence from which rational jury
could convict defendant of lesser-included offense of assault, instead of aggravated
assault, where evidence did not negate allegation that defendant used deadly weapon
during assault); see also Mass v. State, No. 01-12-01004-CR, 2014 WL 298439, at
*5 (Tex. App.—Houston [1st Dist.] Jan. 28, 2014, no pet.) (mem. op., not designated
for publication) (holding trial court did not err in refusing to instruct jury on lesser
offense of misdemeanor assault, in defendant’s trial for aggravated robbery, where
record did not contain affirmative evidence that would have permitted rational jury
to find that defendant did not use deadly weapon in committing assault).
Accordingly, we overrule appellant’s first and second points of error.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd Justice
Panel consists of Justices Keyes, Bland, and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b). 15