COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00039-CR
STEVEN DOUGLAS PRATT APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Steven Douglas Pratt appeals his conviction for felony assault2
on a family member by means of ―intentionally, knowingly, or recklessly
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West 2011). imped[ing] the normal breathing or circulation of the blood by applying pressure
to the throat or neck of Nikki Norman,‖ Pratt’s live-in girlfriend. In his sole issue,
Pratt argues that the trial court erred by denying his request that the jury charge
contain a lesser included offense instruction of misdemeanor assault.3 We will
affirm.
II. BACKGROUND
After having barricaded herself in her apartment’s bathroom on
November 11, 2011, at roughly 10:40 p.m., Norman called 9-1-1 to report a
―domestic dispute.‖ Through tears and labored breathing, Norman explained that
she was calling because Pratt had ―beat[en] [her] up.‖ Norman told the 9-1-1
operator that she was attempting to leave with her ―baby‖ but could not, and that
her mother, father, and brother had come to the apartment to help her leave but
that Pratt had ―attacked‖ her father and brother. When the 9-1-1 operator asked
her where her brother and father were at the time of her call, Norman explained
that they were ―in there trying to detain him because he’s going nuts. He’s
drunk.‖
According to his testimony at trial, City of Granbury Patrol Sergeant Alan
Hicks responded to the 9-1-1 dispatch regarding Norman’s call. By Hicks’s
account, when he arrived at Pratt’s apartment, he first encountered three men,
one of them being Pratt. Hicks testified that Pratt had apparent injuries to his
3 See Tex. Penal Code Ann. § 22.01(a) (West 2011).
2 face. Hicks averred that Pratt explained that Norman’s brother had assaulted
him. Hicks then talked with Norman and noticed that she had ―red marks on the
side of her face, and she had round red marks around her neck.‖ Hicks testified
that these injuries appeared ―fresh.‖ Pictures of Norman’s injuries were
published to the jury, and Hicks confirmed that the photos were taken shortly
after he arrived at the apartment. Upon further investigation, Hicks said that he
also discovered injuries to Norman’s chest. Hicks said that because Norman’s
account of the events was that Pratt had choked her and that his initial
investigation revealed injuries consistent with strangulation, coupled with Pratt’s
―angry [and] intoxicated‖ demeanor, he arrested Pratt that night and charged him
with ―assault family violence impede breathing [or] circulation.‖
Officer Justin McGuire of the Granbury Police Department testified that he
also responded to the dispatch and that while at the apartment he also witnessed
redness and abrasions on Norman’s face and neck. McGuire testified that the
injuries were obvious and fresh. Hicks said that when he inquired of Norman
how she had been injured, Norman said that Pratt had ―choked her.‖ McGuire
further inquired whether Pratt’s actions had ―made it difficult for her to breathe.‖
Norman responded that it had. McGuire also testified that the injuries on
Norman’s person were consistent with her having been choked.
Norman testified that she lived with Pratt and their daughter in the
apartment. Norman explained that earlier that night she told Pratt that she was
3 going to run an errand. Pratt reacted by accusing her of adultery and she
testified that when she began to leave, Pratt hit her. According to Norman, Pratt
then ―got on top of [her] and started to choke‖ her. Explaining the incident
further, Norman described how Pratt had ―put both of his hands around [her]
neck and started to squeeze [her] throat.‖ Norman stated that she ―could not
breathe.‖
After breaking free, Norman said that she ran toward the kitchen, but that
Pratt ―pushed [her] again and got on top of [her] again, and -- with both hands‖
choked her. Norman said that Pratt’s conduct again caused her to lose her
ability to breathe for ―about 15 to 20 seconds.‖ When asked whether she said
anything to him during this time, Norman said ―No . . . I couldn’t speak.‖ Norman
testified that she feared that she might die. By Norman’s account, Pratt repeated
this behavior a third time: ―[H]e got right back on top of me and started to choke
me again.‖ Norman said that she was finally able to break free by kicking Pratt in
the genitals. From there she barricaded herself in the bathroom and called her
mother. After Norman’s mother, father, and brother arrived, and after Pratt
allegedly assaulted her brother, Norman called 9-1-1.
At the close of evidence, Pratt requested that the court’s charge include a
lesser included offense instruction, ―removing the impeding the circulation or
breath, and make it a simple family assault violence case.‖ The trial court denied
4 this request. The jury found Pratt guilty and sentenced him to twenty years’
incarceration. This appeal followed.
III. DISCUSSION
In his sole issue, Pratt argues that the trial court erred by denying his
request that the jury charge include the lesser included offense of misdemeanor
assault. We disagree.
A two-pronged test is used to determine whether a lesser included offense
must be included in the jury charge when requested. A charge on a lesser
included offense is required if (1) the lesser included offense is included within
the proof necessary to establish the charged offense and (2) there is some
evidence that would permit a rational jury to find that, if the accused is guilty, he
is guilty of only the lesser offense. Hall v. State, 225 S.W.3d 524, 526, 535 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993); Royster v. State, 622 S.W.2d 442, 446
(Tex. Crim. App. [Panel Op.] 1981) (plurality op. on reh’g); see Tex. Code Crim.
Proc. Ann. art. 37.09 (West 2006).
With respect to the first prong, an offense is a lesser included offense of
another offense under Article 37.09(1) 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. Ex parte Watson, 306 S.W.3d 259, 273 (Tex.
5 Crim. App. 2009). The resolution of the first prong is a question of law to be
determined by looking at the elements and facts alleged in the charging
instrument, not the evidence presented at trial. Hall, 225 S.W.3d at 535. The
State concedes that the first prong is satisfied in this case. See Tex. Penal Code
Ann. § 22.01.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00039-CR
STEVEN DOUGLAS PRATT APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant Steven Douglas Pratt appeals his conviction for felony assault2
on a family member by means of ―intentionally, knowingly, or recklessly
1 See Tex. R. App. P. 47.4. 2 See Tex. Penal Code Ann. § 22.01(b)(2)(B) (West 2011). imped[ing] the normal breathing or circulation of the blood by applying pressure
to the throat or neck of Nikki Norman,‖ Pratt’s live-in girlfriend. In his sole issue,
Pratt argues that the trial court erred by denying his request that the jury charge
contain a lesser included offense instruction of misdemeanor assault.3 We will
affirm.
II. BACKGROUND
After having barricaded herself in her apartment’s bathroom on
November 11, 2011, at roughly 10:40 p.m., Norman called 9-1-1 to report a
―domestic dispute.‖ Through tears and labored breathing, Norman explained that
she was calling because Pratt had ―beat[en] [her] up.‖ Norman told the 9-1-1
operator that she was attempting to leave with her ―baby‖ but could not, and that
her mother, father, and brother had come to the apartment to help her leave but
that Pratt had ―attacked‖ her father and brother. When the 9-1-1 operator asked
her where her brother and father were at the time of her call, Norman explained
that they were ―in there trying to detain him because he’s going nuts. He’s
drunk.‖
According to his testimony at trial, City of Granbury Patrol Sergeant Alan
Hicks responded to the 9-1-1 dispatch regarding Norman’s call. By Hicks’s
account, when he arrived at Pratt’s apartment, he first encountered three men,
one of them being Pratt. Hicks testified that Pratt had apparent injuries to his
3 See Tex. Penal Code Ann. § 22.01(a) (West 2011).
2 face. Hicks averred that Pratt explained that Norman’s brother had assaulted
him. Hicks then talked with Norman and noticed that she had ―red marks on the
side of her face, and she had round red marks around her neck.‖ Hicks testified
that these injuries appeared ―fresh.‖ Pictures of Norman’s injuries were
published to the jury, and Hicks confirmed that the photos were taken shortly
after he arrived at the apartment. Upon further investigation, Hicks said that he
also discovered injuries to Norman’s chest. Hicks said that because Norman’s
account of the events was that Pratt had choked her and that his initial
investigation revealed injuries consistent with strangulation, coupled with Pratt’s
―angry [and] intoxicated‖ demeanor, he arrested Pratt that night and charged him
with ―assault family violence impede breathing [or] circulation.‖
Officer Justin McGuire of the Granbury Police Department testified that he
also responded to the dispatch and that while at the apartment he also witnessed
redness and abrasions on Norman’s face and neck. McGuire testified that the
injuries were obvious and fresh. Hicks said that when he inquired of Norman
how she had been injured, Norman said that Pratt had ―choked her.‖ McGuire
further inquired whether Pratt’s actions had ―made it difficult for her to breathe.‖
Norman responded that it had. McGuire also testified that the injuries on
Norman’s person were consistent with her having been choked.
Norman testified that she lived with Pratt and their daughter in the
apartment. Norman explained that earlier that night she told Pratt that she was
3 going to run an errand. Pratt reacted by accusing her of adultery and she
testified that when she began to leave, Pratt hit her. According to Norman, Pratt
then ―got on top of [her] and started to choke‖ her. Explaining the incident
further, Norman described how Pratt had ―put both of his hands around [her]
neck and started to squeeze [her] throat.‖ Norman stated that she ―could not
breathe.‖
After breaking free, Norman said that she ran toward the kitchen, but that
Pratt ―pushed [her] again and got on top of [her] again, and -- with both hands‖
choked her. Norman said that Pratt’s conduct again caused her to lose her
ability to breathe for ―about 15 to 20 seconds.‖ When asked whether she said
anything to him during this time, Norman said ―No . . . I couldn’t speak.‖ Norman
testified that she feared that she might die. By Norman’s account, Pratt repeated
this behavior a third time: ―[H]e got right back on top of me and started to choke
me again.‖ Norman said that she was finally able to break free by kicking Pratt in
the genitals. From there she barricaded herself in the bathroom and called her
mother. After Norman’s mother, father, and brother arrived, and after Pratt
allegedly assaulted her brother, Norman called 9-1-1.
At the close of evidence, Pratt requested that the court’s charge include a
lesser included offense instruction, ―removing the impeding the circulation or
breath, and make it a simple family assault violence case.‖ The trial court denied
4 this request. The jury found Pratt guilty and sentenced him to twenty years’
incarceration. This appeal followed.
III. DISCUSSION
In his sole issue, Pratt argues that the trial court erred by denying his
request that the jury charge include the lesser included offense of misdemeanor
assault. We disagree.
A two-pronged test is used to determine whether a lesser included offense
must be included in the jury charge when requested. A charge on a lesser
included offense is required if (1) the lesser included offense is included within
the proof necessary to establish the charged offense and (2) there is some
evidence that would permit a rational jury to find that, if the accused is guilty, he
is guilty of only the lesser offense. Hall v. State, 225 S.W.3d 524, 526, 535 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993); Royster v. State, 622 S.W.2d 442, 446
(Tex. Crim. App. [Panel Op.] 1981) (plurality op. on reh’g); see Tex. Code Crim.
Proc. Ann. art. 37.09 (West 2006).
With respect to the first prong, an offense is a lesser included offense of
another offense under Article 37.09(1) 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. Ex parte Watson, 306 S.W.3d 259, 273 (Tex.
5 Crim. App. 2009). The resolution of the first prong is a question of law to be
determined by looking at the elements and facts alleged in the charging
instrument, not the evidence presented at trial. Hall, 225 S.W.3d at 535. The
State concedes that the first prong is satisfied in this case. See Tex. Penal Code
Ann. § 22.01.
In connection with the second prong of the inquiry, some evidence must
exist in the record that would permit a jury to rationally find that if the accused is
guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v.
State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at
672–73. The evidence must be evaluated in the context of the entire record.
Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). There must be some
evidence from which a rational jury could acquit an accused of the greater
offense while convicting him of the lesser included offense. Id. The court may
not consider whether the evidence is credible, controverted, or in conflict with
other evidence. Id. Anything more than a scintilla of evidence may be sufficient
to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
Here, Pratt posits that ―a number of facts in the record . . . show much
more than just a scintilla of evidence‖ that he did not choke Norman. Specifically,
Pratt argues that because Norman did not seek medical attention on the night of
the assault; because she was able to break free from Pratt’s assailment; because
she was able to call her parents ―[i]mmediately after allegedly being choked;‖
6 because she did not call the police until after her family arrived; and because she
did not take photographs of large bruises that Norman testified appeared on her
neck in the days following the incident, there exists more than a scintilla of
evidence that Pratt did not choke Norman. But as the State responds, none of
these points ―are directly germane to the issue‖ of whether Pratt was only guilty
of the lesser included offense of misdemeanor assault.
Norman testified that Pratt repeatedly pushed her down and choked her.
She described to the jury how on three different occasions during the incident,
Pratt applied pressure to her neck using his hands to the point that she was
either unable to speak, unable to breathe, or barely capable of maintaining
consciousness. The pressure was repeated, continual, and forceful enough that
Norman testified that she thought that she might die. Two officers testified that
when they arrived at the apartment, Norman showed ―obvious‖ signs of trauma
from strangulation and that it appeared to both of them that her wounds were
―fresh.‖ Photographs depicting these injuries that were taken when police arrived
were published to the jury. Although affirmative evidence of the points Pratt now
propounds might have further strengthened the State’s case that Pratt impeded
Norman’s normal breathing or circulation by applying pressure to her throat or
neck, none of the points Pratt raises rationally support an inference that he did
not choke Norman and that he is guilty of only the lesser included offense of
misdemeanor assault requested by him. See Cavazos v. State, 382 S.W.3d 377,
7 385 (Tex. Crim. App. 2012) (―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.‖). We overrule
Pratt’s sole issue.
IV. CONCLUSION
Having overruled Pratt’s sole issue on appeal, we affirm the trial court’s
judgment.
BILL MEIER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: October 17, 2013