No. 14-10-00261-CR
Opinion filed April 12, 2011. DO NOT PUBLISH. — Tex. R. App. P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 1211609.
Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.
CHARLES W. SEYMORE, Justice.
A jury convicted appellant, Antonio Morales, of aggravated robbery-deadly weapon and sentenced him to fifteen years' confinement. In a single issue, appellant contends the trial court erred by denying his request for submission of a lesser-included offense in the jury charge. We affirm.
BACKGROUND
In April 2009, the complainant and his uncle were conversing while standing in an apartment parking lot. While they spoke, appellant and another man parked nearby and exited their vehicle. The complainant testified the other man held a "grayish" gun. Appellant and the other man demanded that the complainant and his uncle surrender their money. After misappropriating several items, appellant said, "Shoot [them]." However, appellant and the other man returned to their vehicle and drove away. The complainant and his uncle contacted the police. Shortly thereafter, police officers arrested appellant but were unable to apprehend the other man. The officers did not find a gun on appellant or in his vehicle. LESSER-INCLUDED OFFENSE
In his sole issue, appellant contends the trial court erred by denying his request for an instruction on the lesser-included offense of simple robbery. A. Standard of Review and Applicable Law
We review the trial court's decision regarding submission of a lesser-included-offense charge for abuse of discretion. Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005). In making this determination, we review all of the evidence presented at trial and consider whether any evidence exists in the record that would permit a rational jury to find that the defendant is guilty of only the lesser-included offense. King v. State, 17 S.W.3d 7, 21 (Tex. App.-Houston [14th Dist] 2000, pet. refd). Anything more than a scintilla of evidence is sufficient to entitle a defendant to an instruction on the lesser-included offense. Dobbins v. State, 228 S.W.3d 761, 768 (Tex. App.-Houston [14th Dist.] 2007, pet. dism'd, untimely filed). It is not enough for the jury to disbelieve evidence pertaining to the greater offense; there must be some evidence directly germane to the lesser-included offense for the fact-finder to consider before an instruction on the lesser-included offense is warranted. Id. An offense is a lesser-included offense if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006). A defendant is entitled to a jury instruction on a lesser-included offense under article 37.09 if (1) the elements of the lesser offense are contained within the proof necessary to establish the charged offense as pleaded in the State's indictment, and (2) the record contains some evidence by which a jury rationally could conclude that if the defendant is guilty, he is guilty of only the lesser offense and not the greater one. Hernandez v. State, 171 S.W.3d 347, 351 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd). B. Analysis
The parties agree that simple robbery is a lesser-included offense of aggravated robbery-deadly weapon. The elements of these offenses are the same except aggravated robbery-deadly weapon requires a finding that the defendant used or exhibited a deadly weapon. See Tex. Penal Code Ann. §§ 29.02, 29.03 (West 2003). Thus, we must determine whether there was some evidence presented from which a rational jury could find appellant guilty of simple robbery but not guilty of aggravated robbery. See Hernandez, 171 S.W.3d at 351. Appellant argues he was entitled to an instruction on simple robbery because the complainant and his uncle testified they are not familiar with guns, were unable to see the gun well, and did not know the type of gun used. Further, the complainant's uncle conceded he does not know for certain whether the gun was real. Based on this testimony, appellant contends the jury could have found the State did not prove beyond a reasonable doubt that a real gun was used and, thus, convicted appellant of the lesser-included offense of simple robbery. When, as in this case, a witness concedes the possibility that a gun could have been a BB gun or a toy gun, the concession is regarded as impeachment evidence. See Wilhoit v. State, 638 S.W.2d 489, 499 (Tex. Crim. App. 1982) (holding that officer's testimony the complainant told him she believed the gun was "most likely . . . a toy type gun" operated as impeachment evidence but did not entitle defendant to charge on lesser-include offense). However, the testimony does not operate as direct, substantive evidence of a lesser-included offense that a deadly weapon was not involved in the robbery. See id. at 499; see also Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (concluding State's failure to recover knife was not affirmative evidence supporting contention no knife was used). The complainant's and his uncle's testimony that they were unfamiliar with guns and unsure of the type of gun used or whether it was real operated as impeachment evidence but not as direct, substantive evidence that the gun was not real. Absent affirmative evidence negating a real gun was used, the jury could not have convicted appellant of the lesser offense. Accordingly, the trial court did not err by denying appellant's request for an instruction on the lesser-included offense of simple robbery. See Dobbins, 228 S.W.3d at 769-70 ("Because there is no affirmative evidence in the record that would have permitted a rational jury to find that appellant was guilty only of simple assault, the trial court did not abuse its discretion in refusing to submit the lesser included offense."). Appellant's sole issue is overruled and the trial court's judgment affirmed.