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Keenum v. State

Court of Appeals of Texas, Seventh District, Amarillo

July 14, 2017

MARK ALLEN KEENUM, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

         On Appeal from the 242nd District Court Hale County, Texas Trial Court No. B19, 941-1504, Honorable Kregg Hukill, Presiding

          Before Quinn, C.J. and Campbell and Pirtle, J.J.

          MEMORANDUM OPINION

          PER CURIAM

         Mark Allen Keenum (appellant) appeals his conviction for aggravated assault with a deadly weapon and presents three issues. The prosecution arose from what one could call a road rage incident. Appellant and his victim (Ramirez) were driving their respective vehicles when appellant passed her, stopped his car in a manner that allegedly prevented her from continuing, exited the vehicle, and confronted her with a drawn firearm.

         Three issues are presented for our consideration. One involves a constitutional challenge to § 22.02(a)(2) of the Texas Penal Code. Another concerns the trial court's refusal to instruct the jury on a purported lesser included offense, while the third encompasses the wording of the jury charge. We affirm.

         Constitutionality of § 22.02

         Appellant initially contends that "[t]he statute under which Appellant was convicted [i.e., Texas Penal Code § 22.02(a)(2)] is unconstitutional on its face because it does not require a culpable mental state." Because "a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute, " Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); McKinney v. State, No. 07-15-00116-CR, 2016 Tex.App. LEXIS 1765, at *4-5 (Tex. App.-Amarillo Feb. 18, 2016, pet. ref'd) (mem. op., not designated for publication), and the challenge at bar went unmentioned below, it was not preserved for review. Thus, we overrule it.

         Lesser Included Offense

         Next, appellant argues that "[t]he trial court erred in refusing Appellant's lesser included offense instruction as requested, i.e. attempted aggravated assault." He believed himself entitled to the instruction because "[t]here was evidence provided by the testimony of Appellant that he did not intend to threaten the victim in this case, that he did not punch or hit the victim or threaten to kill her, and that he did not point the gun at the victim."

         The following exchange occurred at trial. Appellant's counsel asked the court "to include another lesser-included of attempted [aggravated assault]" or "attempted reckless conduct." This led the trial judge to ask defense counsel: "do you have any- can you point to any fact that would prove he's guilty of the requested lesser-included and not either of the other two offenses already charged? Can you point to any specific evidence?" The answer was "[n]o, sir." So, the trial court denied the request.

         Obviously, the acknowledgement that no evidence could be cited to support the request influenced the trial court's decision. Yet, now appellant urges that the trial court erred because such evidence actually appeared of record. This scenario likens somewhat to invited error. The latter rule serves to prevent a party from taking advantage of an error it invited or caused. Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011). That is, a party is "estopped" from seeking relief based on error it induced. Id. Here, the answer of appellant's own attorney not only tended to negate his position about being entitled to an instruction on the lesser included offense but also provided the trial court basis to rule as it did. Nevertheless, appellant now argues that the trial court erred in ruling as it did despite his previous representation to that court. It would seem that appellant attempts to take advantage of a purported wrong he facilitated, and we hesitate to help him in that endeavor.

         Yet, even if his conduct below did not amount to invited error, we would still have to overrule the issue. That he did not intend to threaten, punch, hit, or point the gun at the victim suggests that he committed no assault. Proof illustrating that no crime occurred does not entitle the accused to a charge on some lesser included offense.[1]Hardin v. State, No. 07-02-00444-CR, 2003 Tex.App. LEXIS 7767, at *5 (Tex. App.- Amarillo Sept. 3, 2003, no pet) (mem. op., not designated for publication). Moreover, appellant failed to explain or cite authority illustrating how the absence of an assault constituted evidence of attempted aggravated assault. We are not in a position at this time to hold that merely thinking about throttling someone can alone expose the person to prosecution for attempted aggravated assault, at least not without explanation as to why that should be so. Thus, the trial court did not abuse its discretion in denying an instruction on attempted aggravated assault. See Gallardo v. State, No. 07-16-00086-CR, 2016 Tex.App. LEXIS 13135, at *10 (Tex. App.-Amarillo Dec. 9, 2016, no pet.) (mem. op., not designated for publication) (stating that we review a trial court's refusal to afford an instruction on a lesser included offense under the standard of abused discretion).

         Erroneous Mens Rea Instruction

         In his last issue, appellant contends that the trial court erred in defining the abstract terms "intentionally" and "knowingly" in its charge. The definitions included verbiage "regarding the result-oriented nature of intentional and knowing" when the language should have been restricted to the accused mens rea regarding the nature of his conduct. The State conceded the point but argued that the error fell short of causing egregious harm. We ...


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