NUMBER 13-04-614-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

___________________________________________________________________

STUART BUSBY,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

___________________________________________________________________

                  On appeal from the 130th District Court

                         of Matagorda County, Texas.

___________________________________________________  _______________

                     MEMORANDUM OPINION^[1]

         Before Chief Justice Valdez and Justices Rodriguez and Garza

                      Memorandum Opinion by Justice Rodriguez

Appellant, Stuart Busby, was charged with the offense of aggravated robbery.  See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003).  A jury found appellant guilty and assessed punishment at ninety-nine years' confinement in the Texas Department of Criminal Justice-Institutional Division.  The trial court has certified that this is not a plea bargain case, and the defendant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  By his sole issue, appellant contends the trial court erred in denying his request for a jury charge on the lesser-included offense of robbery.  We affirm.

I.  Background

On December 4, 2003, appellant and Benny Arnold, Jr. (Arnold), entered the First State Bank in Blessing, Texas, wearing ski masks.  Once inside the bank, one of the men pointed a gun at the tellers while the other individual opened the tellers' drawers, took money from the drawers, and placed the money in a bag.  The two men then fled the bank with the bag of money.  Appellant was arrested and indicted for the offense of aggravated robbery.  At trial,^[2] appellant requested that the jury be charged on the lesser-included offense of robbery.  The trial court denied appellant's request. The jury was instructed on the law of parties and charged with alternate theories of aggravated robbery upon which it could find appellant guilty.  The jury found appellant guilty of the offense of aggravated robbery.  This appeal ensued.   

II.  Lesser-Included Offense

By his sole issue, appellant contends the trial court erred in denying his request for a jury charge on the lesser-included offense of robbery.^[3]

A.  Standard of Review

To determine whether a charge on a lesser-included offense is warranted, we apply a two-prong test.  Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (en banc) (citing Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002)).  We first determine whether the offense is actually a lesser-included offense of the offense charged.  Id.; see Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981) (providing that 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).  Next, we review the entire record to determine whether it contains some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser-included offense.  Threadgill, 146 S.W.3d at 665 (citing Feldman, 71 S.W.3d at 750).  When the State has charged a defendant on alternate theories of the same offense, the second prong is satisfied "only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater."  Arevalo v. State, 970 S.W.2d 547, 549 (Tex. Crim. App. 1998) (per curiam) (emphasis added) (citing Schweinle v. State, 915 S.W.2d 17, 19-20 (Tex. Crim. App. 1996)).  "Only if every theory properly submitted is challenged would the jury be permitted to find the defendant guilty only of the lesser offense."  Id.

B.  Analysis

It is well settled that robbery is a lesser-included offense of aggravated robbery. Ex parte Walton, 626 S.W.2d 528, 530 (Tex. Crim. App. 1981) (en banc); see Tex. Pen. Code Ann. '' 29.02, 29.03 (Vernon 2003).^[4]  Therefore, the first prong of our two-prong test is satisfied.  See Threadgill, 146 S.W.3d at 665; see also Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).  Thus, we need only determine whether the record contains evidence to satisfy the second prong of the test.  See Threadgill, 146 S.W.3d at 665 (citing Feldman, 71 S.W.3d at 750).

The State presented alternate theories of the greater offense of aggravated robbery upon which the jury could find appellant guilty.  First, the State charged appellant with aggravated robbery based on his own conduct.^[5]  Secondly, the State charged appellant with aggravated robbery under the law of parties^[6] based on the combination of his own conduct and Arnold's conduct.^[7]  In order to satisfy the second prong of the test, and to be entitled to a jury charge on the lesser-included offense of robbery, the record had to contain evidence "which, if believed, refute[d] or negate[d] every theory which elevate[d] the offense from the lesser to the greater."  Arevalo, 970 S.W.2d at 549 (citing Schweinle, 915 S.W.2d at 19-20).  Therefore, under the first theory of aggravated robbery presented by the State, the record had to contain evidence which, if believed, refuted that appellant, himself, used or exhibited a deadly weapon during the commission of the robbery.  See id.; see also Tex. Pen. Code Ann. '' 29.02, 29.03 (Vernon 2003).  Under the second theory of aggravated robbery presented by the State, the record had to contain evidence which, if believed, refuted (1) that Arnold used or exhibited a deadly weapon during the commission of the robbery and (2) that appellant acted with intent to assist the commission of the offense and aided Arnold to commit the offense.  See Arevalo, 970 S.W.2d at 549 (citing Schweinle, 915 S.W.2d at 19-20); see also Tex. Pen. Code Ann. 7.02(a)(2), 29.02, 29.03 (Vernon 2003).  Only if both theories were refuted would the second prong be satisfied and would appellant be entitled to a jury charge on the lesser-included offense of robbery.  See Arevalo, 970 S.W.2d at 549 (citing Schweinle, 915 S.W.2d at 19-20).

With regard to the second theory presented by the State, appellant does not challenge that Arnold exhibited a deadly weapon during the commission of the robbery.  Moreover, the record does not contain evidence to refute that appellant acted with intent to assist the commission of the offense and aided Arnold to commit the offense.  Therefore, we conclude the record does not contain evidence that refutes the second theory of aggravated robbery presented by the State.  See id.  Because it is necessary for both theories to be refuted in order for the second prong of the test to be satisfied, see id., we need not determine whether the record contains evidence refuting the first theory of aggravated robbery presented by the State.  See Tex. R. App. P. 47.1. 

Thus, we conclude the second prong of the two-prong test is not satisfied, and  appellant, therefore, was not entitled to an instruction on the lesser-included offense of robbery.  We overrule appellant's sole issue.  

III.  Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 25th day of May, 2006.