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Click here for the full text of this decision FACTS:Waco Police Officer Benjamin Rush began chasing Willie Frank Campbell, who was wanted on outstanding warrants, on foot. According to Rush, he caught up to Campbell and put his arms around in him in a bear hug. As the two struggled, Rush noticed that Campbell was bending over, then said “get back.” When Rush realized that Campbell had a gun, he turned Campbell around while he also pushed him away and then turned to run. Rush never saw Campbell point the gun at him. Instead, Campbell threw the gun up on the roof as he fled again. Campbell was later caught by other officers, and the gun was retrieved. It was not loaded. Campbell said that while he did struggle, and did pull out a gun, his sole intention was to get rid of it, not to threaten Rush with it. And he did not say, “get back.” Campbell was charged with using a handgun to threaten a police officer. He was convicted and sentenced to 33 years in prison. This court of appeals overruled most of Campbell’s arguments on Jan. 8, 2003. However, the court sustained Campbell’s one argument that the trial court erred by denying a jury instruction on the lesser-included offense of resisting arrest using a deadly weapon. The state filed a motion for rehearing. One of the judges on the original panel has since retired, but the remaining judges did not vote on the state’s motion. HOLDING:Motion denied. CONCURRENCE:Vance, J., concurs in the denial of rehearing, and writes separately to address the state’s argument. The concurrence explains why the omission of the jury instruction on the lesser-included offense was error, and not a harmless one. The concurrence applies the two-step test known as the Aguilar/Rousseautest to determine if the jury charge was necessary: was the offense actually a lesser-included offense of the offense charged, and whether the record contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. The elements of aggravated assault, as charged, are: Campbell 1. intentionally or knowingly, 2. threatened Rush with imminent bodily injury, 3. using or exhibiting a deadly weapon during the commission of the assault, 4. knowing that Rush was a public servant, and 5. while Rush was lawfully discharging an official duty. The elements of resisting arrest pertinent to this discussion are: Campbell 1. intentionally, 2. prevented or obstructed, 3. Rush, a person Campbell knew to be a peace officer, 4. from effecting an arrest, search, or transportation of Campbell, 5. by using force against Rush, and 6. used a deadly weapon to resist the arrest or search. The concurrence says that the second element of the aggravated assault charge and the fifth element of the resisting arrest offense do not easily match up, but, ultimately, they are the same. The concurrence says there is no direct evidence of a threat. Campbell may or may not have said “get back,” and by Rush’s own admission, Campbell did not point the gun at him. Thus, the same or less than all the facts required to prove Campbell threatened Rush with imminent bodily harm also established a “use of force against” Rush by Campbell in resisting arrest. The concurrence also says that the element that Campbell “used” the gun to resist arrest is the same as “exhibiting” a gun during an aggravated assault. The resisting arrest charge was a valid rational alternative to the aggravated assault charge, and the trial court’s failure to include the charge was not harmless error. DISSENT:Gray, C.J., dissents to the denial of the motion for rehearing. The dissent would not have acted on the motion without first receiving a response from the other side to help focus the court’s examination of the disputed issue. On the merits, the dissent says that no rational person would conclude from the facts that Campbell threatened Rush. “To be a threat, the gun does not have to be pointed at the officer. To be a threat, no words need be spoken. To be a threat, we do not need to know what action the officer takes. In summary: pursuit + gun = threat.” The dissent also expresses its desire to conduct a thorough review of the court’s jurisprudence on jury charges and throw away those cases “that can be fairly characterized as aberrations to an overall comprehensive analysis of this area of law.”

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