Dean, Shawn Allen v. The State of Texas--Appeal from 344th District Court of Chambers County

Affirmed and Opinion filed  November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01139-CR

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SHAWN ALLEN DEAN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Cause No. 11242

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O P I N I O N

Shawn Allen Dean appeals a conviction for aggravated assault on a peace officer on the ground that the trial court erred in refusing his request for a lesser included offense instruction on deadly conduct in the jury charge. We affirm.

A defendant is entitled to an instruction on a lesser included offense if: (1) the offense for which an instruction was requested is a lesser included offense of the charged offense;[1] and (2) there is some evidence in the record that would permit a rational jury to find that the defendant is guilty only of the lesser offense. Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002). As to the second prong, anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser included offense charge. Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001). The second condition is satisfied if there is evidence from any source that negates or refutes the element establishing the greater offense, or the evidence of the charged offense is subject to different interpretations, one of which negates or rebuts a differing element of the charged offense. See Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Solomon v. State, 49 S.W.3d 356, 369 (Tex. Crim. App. 2001).

In this case, appellant was convicted of aggravated assault for threatening a police officer with injury by intentionally or knowingly driving his vehicle in the officer s direction. Appellant s brief acknowledges the testimony of various witnesses that appellant swerved his vehicle at the officer deliberately. However, to satisfy the requirement that there be some evidence in the record that would permit a rational jury to find that he is guilty only of the lesser offense of deadly conduct, appellant s brief merely argues that the jury could have reasonably concluded that his conduct was reckless rather than knowing or intentional. Yet, his brief cites no testimony or other evidence from which any such inference could be drawn. Because appellant s sole issue thereby fails to demonstrate that appellant was entitled to a lesser included offense instruction, that issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981) (defining lesser included offense as an offense that is established by proof of the same or less than all the facts required to establish the commission of the offense charged).