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Click here for the full text of this decision FACTS:The appellant, a prison inmate, approached a correctional officer in the hallway outside the prison cafeteria. During a heated argument, the officer pushed appellant towards his cell. The appellant retaliated by punching the officer in the face. Appellant was charged with the felony of assault on a public servant. At trial, appellant admitted hitting the officer but contended that he offered some evidence that the officer was not “lawfully discharging” his official duties as a correctional officer when he pushed appellant. Therefore, appellant argues that the trial court erred in refusing his request for a jury instruction on the lesser-included offense of misdemeanor assault. The court of appeals affirmed. HOLDING:The court of appeals’ decision is affirmed. In making the decision on whether a judge should instruct the jury on a lesser offense, courts apply the two-prong Aguilar/Rousseau test. The first step requires a court to determine whether the lesser offense actually is a lesser-included offense of the offense charged, as defined by Article 37.09. Because the offense of assault of a public servant differs from misdemeanor assault only because it requires proof of additional facts, the first prong of the Aguilar/Rousseau test is satisfied. The second prong of the Aguilar/Rousseau test asks whether the record contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser-included offense. In other words, there must be some evidence based upon which a rational jury could acquit appellant of assault on a public servant while convicting him of the lesser-included offense of misdemeanor assault. In making this decision, the court evaluates the evidence in the context of the entire record but does not consider whether the evidence is credible, controverted or in conflict with other evidence. The only element of assault of a public servant that appellant claims he has affirmatively negated is the element that the officer was in the “lawful discharge” of his official duties. He asserts that he offered some evidence that the officer acted “unlawfully” when he pushed appellant in the direction of his cell, and the officer therefore stepped outside the lawful performance of his official duties. Texas Penal Code 9.53 states: “An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.” If a correctional officer’s use of force falls within this definition, he is lawfully discharging his official duties, and if assaulted at this time, the actor is guilty of assault of a public servant rather than mere misdemeanor assault. There is no evidence that would support a rational conclusion that the officer was not lawfully discharging his official duties at the time appellant punched him, the court determines. OPINION:Cochran, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Price, Womack, Johnson, Hervey and Holcomb, JJ., joined. Keasler, J., concurred.

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