Saunders, Richard Wayne v. State

• Court: Court of Appeals of Texas
• Decided: May 20, 2004
• Docket: 14-02-00734-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 20, 2004

Affirmed and Memorandum Opinion filed May 20, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00734-CR

RICHARD WAYNE SAUNDERS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 899,913

M E M O R A N D U M   O P I N I O N

The jury convicted appellant of robbery and assessed punishment at five years= confinement, probated, and a $1,000 fine.  In a single issue, appellant contends the trial court erred by refusing to charge the jury on the lesser-included offense of assault.  We affirm.

FACTUAL BACKGROUND

On January 19, 2002, James Gatto noticed a pickup truck blocking his car when he and Christy Lersch were leaving Einstein=s Pub in Katy.  Brian Stanton was sitting in the passenger seat of the truck and appellant was sitting in the passenger seat.  Gatto asked Stanton to move the truck and Stanton did so.

Stanton then asked him for directions.  As Gatto replied, Stanton got out of the truck and punched Gatto, who fell to the ground.  Appellant got out of the truck and joined Stanton in kicking and punching Gatto.

After five or ten seconds, Stanton and appellant fled the scene in the truck.  Gatto pursued them in his car and called the police from Lersch=s cellular phone.  An officer pulled Stanton=s truck over and arrested Stanton and appellant.  Gatto=s cellular phone and the contents of his wallet were found in Stanton=s truck, behind the passenger seat occupied by appellant.

ANALYSIS

In his only issue, appellant contends the trial court erred by refusing to charge the jury on the lesser-included offense of assault.  Appellant argues that the jury could have determined that he was guilty of assault instead of robbery because there was some evidence that he did not intend to commit theft at the time of the assault.

We apply a two-pronged test to determine whether a defendant is entitled to a charge on a lesser-included offense.  Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).  First, the charge sought must actually be a lesser-included offense.  Id.  Because assault is a lesser-included offense of robbery, this prong of the test is satisfied.  See Tex. Penal Code '' 22.01(a), 29.02(a); Jones v. State, 984 S.W.2d 254, 256 (Tex. Crim. App. 1998).  Second, Athere must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense.@  Feldman, 71 S.W.3d at 750B51.

The second prong of the test may be satisfied (1) if there is evidence that refutes or negates other evidence establishing the greater offense, or (2) if the evidence presented is subject to different interpretations.  Saunders v. State, 840 S.W.2d 390, 391B92 (Tex. Crim. App. 1992).  Anything more than a scintilla of evidence raising the lesser-included offense will suffice, even if the evidence was weak, impeached, or contradicted.  Jones, 984 S.W.2d at 257.

Therefore, in order for appellant to be entitled to a charge on assault, there must be more than a scintilla of evidence that the assault was not committed Ain the course of committing theft . . . and with intent to obtain or maintain control of the property.@  Tex. Penal Code 29.02(a).  Appellant does not contest that theft occurred, but he argues that there is evidence that the assault was not committed with the intent to commit the theft.

The intent to commit theft can be formed either before or during the assault.  Cf. Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995) (AIn order for a murder to qualify as capital murder under ' 19.03(a)(2), the killer=s intent to rob must be formed before or at the time of the murder.@).  If appellant formed the intent to commit theft after the assault was completed, he would not have committed robbery.  Cf. Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App.  1992) (A[P]roof of a robbery committed as an afterthought and unrelated to a murder would not provide sufficient evidence of capital murder pursuant to Tex. Penal Code Ann. ' 19.03(a)(2).@).  However, as a general rule, Aa theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft.@  Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002).

The evidence that appellant relies on to support the contention that he formed the intent to commit theft after the assault can be categorized as (1) testimony that either Gatto started the fight or that the fight started spontaneously, and (2) testimony that no one saw when or how Gatto=s property was taken.^[1]  Although testimony that either Gatto started the fight or that the fight started spontaneously constitutes some evidence that the intent to commit theft was not formed before the assault, it does not negate the possibility that the intent to commit theft was formed during the assault.  See Robertson v. State, 871 S.W.2d 701, 706B07 (Tex. Crim. App. 1993).  Nor does the lack of evidence as to when or how Gatto=s property was taken negate the possibility that the intent to commit theft was formed during the assault; there must be some affirmative evidence that the intent was formed after the assault was complete.  See Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).  Because there was no evidence that, if believed, would allow the jury to find appellant guilty only of assault, we overrule his only issue.

We affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 20, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant also cites evidence that Lersch contradicted both herself and Gatto, but any such contradictions do not constitute evidence negating intent.