Ernesto LaFrienza v. State, 08-13-00121-CR

Appellant Ernesto Lafrienza was convicted by a jury of two counts of aggravated robbery (scissors alleged as deadly weapon) and sentenced to 50 years on each count; habitual enhancement alleged and found true.
Facts: Lafrienza was seen placing perfume bottles in a bag and leaving the store without paying; two complainants (Rosales and Marquez) pursued him, a scuffle occurred, and Lafrienza allegedly threatened/assaulted them with scissors during or shortly after the theft.
After the State rested, Lafrienza moved (in limine) to testify free from impeachment by prior felony convictions; the trial court denied the motion and Lafrienza elected not to testify.
Lafrienza requested jury instructions on self-defense and defense of a third person (self-defense given for one count only) and sought a lesser-included instruction for misdemeanor theft (trial court denied).
On appeal Lafrienza argued (1) the court erred by refusing to allow him to testify free from impeachment of priors (leading him to not testify), and (2) the court erred by denying the lesser-included theft instruction.
The court affirmed: (1) error as to impeachment was not preserved because Lafrienza did not testify; (2) there was insufficient evidence to raise theft as a valid, rational lesser-included alternative to robbery. The court reformed the written judgment to correct scrivener’s errors (concurrent sentences, deadly-weapon findings, plea notations, enhancement findings, and fines).

Issue	State's Argument	Lafrienza's Argument	Held
Whether trial court erred by denying motion to testify free from impeachment by prior felonies	Denial proper; priors are crimes of moral turpitude and probative; trial court applied Theus factors	Denial would chill right to testify; priors would unfairly prejudice jury	Not preserved: appellant elected not to testify, so appellate review waived; issue overruled
Whether trial court erred by refusing lesser-included instruction for misdemeanor theft	Evidence showed theft and assaults occurred in course of theft/immediate flight; no evidence appellant was guilty only of theft	Initial theft completed before assaults; at least a scintilla of evidence supports theft-only instruction	No lesser-included instruction required: record does not raise rational fact issue that appellant was guilty only of theft; issue overruled

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992) (factors for balancing impeachment value of prior convictions)
Luce v. United States, 469 U.S. 38 (U.S. 1984) (in limine rulings do not preserve objection unless evidence is actually offered and error affects testimony)
Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999) (defendant must testify to preserve complaint about admission of prior convictions)
Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) (analysis of when assault occurs in the course of committing theft for lesser-included instruction)
Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) (anything more than a scintilla of evidence entitles defendant to lesser charge)
Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985) (no lesser-included instruction required if defendant presents no evidence and record contains no evidence raising the lesser offense)
Coffin v. State, 885 S.W.2d 140 (Tex. Crim. App. 1994) (trial court’s admissibility rulings reviewed for abuse of discretion)
Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011) (abuse-of-discretion standard for extraneous-offense evidence)