SCOTT GENE JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued December 5, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00190-CR
............................
SCOTT GENE JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd District Court
Dallas County, Texas
Trial Court Cause No. F06-00001-WS
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Bridges
        Scott Gene Jackson appeals his assault on a public servant conviction. A jury convicted appellant and, after appellant pled true to two enhancement paragraphs, sentenced him to ninety-nine years' confinement. In two issues, appellant argues the trial court erred in instructing the jury on the lesser-included offense of assault on a public servant and overruling appellant's objection that the State improperly commented on his failure to testify. We affirm the trial court's judgment.
        On August 4, 2005, Dallas police officer Larry Keith Ashley and his partner, Luciano Cano, were flagged down outside a hotel by a woman who “was bleeding around her eyes, her nose, and her ears and said she had just been assaulted.” The woman pointed to appellant who, she said, “did it.” Ashley and Cano asked appellant to stop, but appellant “took off running” and ran into a house. Ashley ran in behind appellant, and the house was very dark with “a lot of individuals in it.” Ashley pursued appellant into a back bedroom where Ashley saw that one of appellant's boots was off and appeared to have crack cocaine inside it. Ashley began “politicking” with appellant in an effort to get him to put his hands behind his back. Cano came in the room and recognized appellant and called him by name. Appellant rushed out of the room and picked up Ashley and Cano. Ashley pulled his Tazer and used it on appellant, but that made the situation worse in that appellant was “like a raging bull.” Still holding Ashley and Cano, appellant turned, causing Cano's hand to hit the window and shatter it. Cano released appellant, who pushed Ashley away and dove out of the broken window.
        Ashley climbed out of the window and pursued appellant on foot, running through a “creek area.” As Ashley ran past a tree, appellant came out from behind the tree and hit Ashley in the head with a branch. Ashley immediately “saw . . . white,” fell into appellant, and “ended up in the bottom of the creek.” In the struggle that followed, appellant attempted to pull Ashley's gun out of its holster, but Ashley pushed the gun back in. Cano heard Ashley fighting with appellant and ran to the scene where he knocked appellant back and attempted to place him in custody. Ashley and Cano both continued to struggle with appellant until additional officers arrived and appellant was finally subdued. Ashley suffered a laceration on the top of his head during his encounter with appellant. Appellant was charged with aggravated assault of a public servant. However, the jury convicted appellant of the lesser-included offense of assault of a public servant. This appeal followed.
        In his first issue, appellant argues the trial court erred in instructing the jury on the lesser- included offense of assault on a public servant. Specifically, appellant argues there was no evidence negating the allegation that appellant used or exhibited a deadly weapon: a stick. A two-prong test must be met before a jury charge instruction on a lesser-included offense must be given: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged and (2) some evidence must exist that, if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Both prongs of the test must be met, regardless of whether such an instruction is requested by the defendant or by the State. Hampton, 109 S.W.3d at 440 (citing Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).
        Appellant concedes that assault of a public servant is a lesser-included offense of aggravated assault of a public servant. We must therefore determine only whether the second prong was met, whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, i.e., there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser. Hampton, 109 S.W.3d at 440 (citing Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). The indictment alleged that appellant caused bodily injury to Ashley by striking him with a stick and “did use and exhibit a deadly weapon to-wit: a STICK, during the commission of the assault . . . .” The court's charge followed the language of the indictment but also charged the jury on the lesser-included offense of assault of a public servant. The charge authorized the jury to convict on the lesser-included offense if it found appellant struck Ashley with just a stick, not a stick that was a deadly weapon.
        Here, the evidence showed appellant struck Ashley in the head with a tree branch, inflicting a laceration on the top of Ashley's head. However, the evidence also showed that Ashley did not require stitches to the laceration on his scalp, and his medical records did not indicate that he suffered a concussion. On cross-examination, Ashley testified he was told he “had a possible concussion” but according to his medical records the injuries he received were not life threatening. Ashley suffered no fractures, and he was back to work within five days. We conclude this testimony constituted some evidence that appellant committed only assault and not aggravated assault on Ashley and that the stick used in the assault was not, in the manner of its use or intended use, capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2006); Hampton, 109 S.W.3d at 440. Accordingly, the trial court did not err in instructing the jury on the lesser-included offense of assault of a public servant. See Hampton, 109 S.W.3d at 440. We overrule appellant's first issue.
        In his second issue, appellant argues the trial court erred in overruling his objection to the prosecutor's comment on appellant's failure to testify. Specifically, appellant complains of the prosecutor's statement during closing argument that the jury had heard no evidence to “refute” that appellant “waited in the woods behind a tree for Officer Ashley to run by him and he hit him over the head.”
        The approved general areas of argument are: summation of the evidence; any reasonable deduction from the evidence; an answer to the argument of opposing counsel; and pleas for law enforcement. Wesbrook, 29 S.W.3d at 115. Here, appellant's counsel argued that there were “three or four main pieces of evidence that could have corroborated” Ashley and Cano's version of events. First, appellant's counsel pointed out the failure of the police to bring forth as a witness the “female prostitute” who was “beat up on the street” and who identified appellant as her assailant. Second, appellant's counsel noted the failure of Ashley or Cano to “radio anyone” that there were drugs in the house where appellant fled or to take the drugs with them.
        Third, appellant's counsel discussed the failure of the State to produce the stick with which appellant struck Ashley. As an explanation for the failure of police to make a “concerted effort to find” the stick, appellant's counsel argued “They didn't want anyone with professional ability out there to come back and say, 'You know, the weapon isn't there; there is no stick out there with blood on it.'” Appellant's counsel argued Ashley's head broke a window at the house during the struggle with appellant, and that was how Ashley cut himself. According to appellant's counsel, Ashley was embarrassed by appellant and had his “head cut open,” and he made up the story about appellant striking him with a stick.
        In response, the prosecutor conceded “all the evidence that could have been presented was not presented.” However, the prosecutor reiterated Ashley's testimony that he received his injuries from appellant hitting him with a stick, and the dazed, disoriented feelings Ashley suffered were “not things that you could make up.” The prosecutor stressed that appellant had “been doing drugs all day” and appellant “was doing anything he could to get away.” The prosecutor summarized the situation as follows:
 
He tries to go through two officers in a barrier, jumps out of a window, runs into a wooded area, hits an officer over the head, still resisting. All that evidence has been presented to you today. There is nothing to refute that.
 
Appellant's counsel did not object to this argument. The prosecutor referred to the pictures of Ashley's lacerated head and the fact that there was “brush, there were tree limbs, all kinds of things down there” in the creek bed. Though police looked for the stick used in the assault they were unable to find it, but “This assault happened. This Defendant waited in the woods behind a tree for Officer Ashley to run by him and he hit him over the head. You haven't heard any evidence to refute that.” The trial judge overruled appellant's objection to this argument. On appeal, appellant argues this constituted a comment on his failure to testify. We disagree. Viewing the prosecutor's statements in context, they are clearly a summation of the evidence and an answer to the arguments of opposing counsel that the failure of the State to produce the stick used in the assault indicated Ashley cut his head on the broken window and lied about the assault. As such, the prosecutor's statements were proper argument and did not constitute a comment on appellant's failure to testify. See Wesbrook, 29 S.W.3d at 115. Further, the prosecutor had made virtually the same argument already without objection. See Greenwood v. State, 740 S.W.2d 857, 860 (Tex. App.-Dallas 1987, no pet.) (no reversible error where same evidence or argument presented elsewhere during trial without objection). We overrule appellant's second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060190F.U05