An instruction on a lesser-included offense is warranted when the evidence is such as to allow a jury rationally to find that the offender is guilty only of the lesser offense, and not of the greater offense. The Court of Appeals held that because the evidence in this case was subject to two possible interpretations-one interpretation supporting a conviction for assault and the other for resisting arrest-then appellant was entitled to an instruction on the lesser-included offense. The State argues the Court of Appeals' holding ignores the requirement in our law that the two interpretations be mutually exclusive. The State is right about this. But the Court of Appeals should be affirmed on other grounds.

A person commits felony assault of a public servant by "intentionally, knowingly or recklessly caus[ing] bodily injury to . . . a person the actor knows is a public servant while the public servant is lawfully discharging an official duty." Tex. Penal Code §§ 22.01(a), 22.01(b)(1). A person resists arrest by "intentionally prevent[ing] or obstruct[ing] a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor by using force against the peace officer or another." Texas Penal Code § 38.03(a). In order to be entitled to an instruction on the lesser offense of resisting arrest, there must be some evidence to permit a jury rationally to find that appellant is guilty only of the lesser, and not of the greater. Therefore, in the instant case, there must be some evidence that appellant intentionally prevented or obstructed his arrest by using force against Officer Munoz, and that appellant did not "intentionally, knowingly or recklessly cause bodily injury" to Munoz. Under the facts of this case, these two theories are not mutually exclusive.

Appellant denied resisting Munoz's efforts to arrest, denied stating that he would not be arrested, denied harming anyone in any way, and denied even touching Munoz or the other officer. Certainly appellant's testimony does not raise an issue as to the lesser-included offense of resisting arrest. Munoz testified that appellant stated, "You're not arresting me, you'll have to kill me first." He further testified that appellant attempted to leave the room at a fast pace, and that appellant fought against being restrained by striking and hitting Munoz with his hands and fists. Munoz's testimony is consistent with a finding that appellant "intentionally prevented or obstructed his arrest by using force against" Munoz. But it is not consistent with a finding that appellant did not assault Munoz. The force used by appellant against Munoz was the striking and hitting of Munoz with his hands and fists. But in using such force appellant at least recklessly caused bodily injury ⁽¹⁾ to Munoz. Even if appellant by his actions had intended to prevent the arrest, this does not negate the evidence that his chosen method of doing so was to assault the arresting officer. There is no evidence of another method of "force" used by appellant in resisting Munoz's efforts to arrest appellant. ⁽²⁾

The Court of Appeals stated that "the jury could have rationally believed that appellant intended to obstruct the arrest and the force he used was incident to that intent." Lofton, 6 S.W.3d at 800 (emphasis added). But the fact that appellant's primary objective might have been to prevent the arrest and the force he used was "incident to" or a way of acting on that primary intent, does not negate that the "incidental" force used toward that objective was assault. The existence of intent to resist arrest does not preclude forming the requisite mental state for committing one of the acts, the use of force, necessary in obstructing the arrest. For these reasons, the Court of Appeals erred in its holding.

Nonetheless, the judgment of the Court of Appeals should be affirmed on the basis of other evidence supporting the instruction on the lesser-included offense. The Court of Appeals' and majority's opinions ignore the existence of evidence of force used by appellant that did not cause bodily injury to Officer Munoz. An instruction on resisting arrest should have been given on the basis of this evidence.

Appellant denied resisting Munoz's efforts to arrest, denied stating that he would not be arrested, denied harming anyone in any way, and denied even touching Munoz or the other officer. A jury could have rationally disbelieved all of appellant's testimony. ⁽³⁾ Munoz testified that appellant stated, "You're not arresting me, you'll have to kill me first." He further testified that appellant attempted to leave the room at a fast pace, and that appellant fought against being restrained by striking and hitting Munoz with his hands and fists. Munoz testified that when he and appellant fell onto the kitchen table and broke it, appellant continued to resist Munoz's and Officer Elliott's efforts to arrest him:

• What happened [after the table broke]?

• Well, he fell kind of like on his face side and I had to dig out his right arm and at that time I think I had his head, too, and we were able to get it - I was able to get his arm and put one cuff on him, on the right hand and turn him over so he would be face down. . . . I felt [Office Elliott] as all this happened coming in behind me to my, to my left and he then, then I saw him. He was starting to help me try to get the other hand because he was fighting me. He wasn't cooperating in any way, so we had to literally force his hands back behind him so we could cuff the other.

• All right. So is it fair to say [appellant] continued to struggle with both of you?

• Sure.

(Emphasis added). Officer Elliott also testified to the force used by appellant in resisting arrest,

apart from the evidence of blows to Munoz's face:

• . . . can you describe that, the amount of physical activity that was part of that attempt to cuff him?

• He was still struggling quite a bit, screaming and cursing as we had him down to the floor on top of the table which had collapsed to the floor . . . We continued to struggle. We had to wrestle with him to get the cuffs on him. . . .

(Emphasis added). A jury could have disbelieved the testimony that appellant struck Munoz, but believed the testimony regarding the other force appellant used in resisting the arrest. ⁽⁴⁾ If the jury had disbelieved the evidence that appellant struck and caused bodily injury to Munoz, there remains other evidence that appellant resisted arrest by the use of force that did not cause bodily injury. This is some evidence that appellant was guilty only of resisting arrest. Appellant was entitled to the instruction on the lesser offense on this basis.

For these reasons, I dissent.

Delivered May 2, 2001

Publish

1. "Bodily injury" means "physical pain, illness, or any impairment of physical condition." Tex. Penal Code § 1.07(a)(8).

2. A defendant does not always commit assault in resisting arrest. The most obvious example would be in the case where the force used to resist the arrest did not actually cause bodily injury to the officer.

3. The majority holds that "[b]ecause appellant denied taking any offensive or defensive action against Munoz, a lesser-included offense instruction on resisting arrest was inappropriate." Majority opinion at 6. This holding does not account for the fact that there may be evidence from another source raising the issue of the lesser-included offense. See Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998). In this case there is evidence from another source raising the issue-Officer Munoz's and Officer Elliott's testimony that appellant resisted arrest.

4. "Force" is defined as "[p]ower dynamically considered, that is, in motion or in action; constraining power, compulsion; strength directed to an end. Black's Law Dictionary 330 (5^th ed. 1983).