Todd Meine v. State, 2011 Tex. App. LEXIS 6603

Meine was convicted by a jury on two counts each of aggravated assault on a public servant and attempted capital murder.
The acts occurred in the parking garage of the American Bank Center in Corpus Christi, where Meine fired at security officers after appearing intoxicated.
Officers Nunez and Saenz were peace officers; other Center employees responded to disturbances.
Meine’s blood alcohol level was .314 about two hours after arrest.
The trial court sentenced Meine to life for each attempted capital murder count and 99 years for each aggravated assault count.
The court of appeals vacated the aggravated-assault convictions but affirmed the attempted-capital-murder convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is there double jeopardy when convicting on both aggravated assault and attempted capital murder?	Meine contends aggravated assault is a lesser-included offense of attempted capital murder.	The State seeks separate punishments for distinct offenses.	Aggravated assault is a lesser-included offense of attempted capital murder; vacate aggravated-assault convictions.
Was Meine entitled to an insanity-by-intoxication instruction during punishment?	Intoxication could show temporary insanity.	Evidence did not show lack of knowledge of wrong or inability to conform conduct.	Insanity-by-intoxication instruction denied; no temporary insanity proven.
Should the jury have been instructed on deadly conduct as a lesser-included offense?	There was evidence supporting deadly conduct as a lesser offense.	No affirmative evidence that Meine acted recklessly without intent to kill.	No entitlement to deadly-conduct instruction; record lacks affirmative lower-culpability proof.
Did the trial court err by a jury charge that did not track the indictment?	Counts 3 and 4 alleged attempted capital murder by firing a gun; instruction allowed merely pointing a gun.	Charge tracked indictment in essential respect; any error was not egregious.	No reversible harm; egregious-harm standard not met; charge affirmed.

Littrell v. State, 271 S.W.3d 273 (Tex. Crim. App. 2008) (double jeopardy; lesser-included offenses; state-law elements analysis)
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (articulates analysis of lesser-included offenses and charging instruments)
Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (same-acts/intent theory for multiple punishments)
Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App. 2006) (when proven acts establish multiple offenses, may bar separate punishments)
Johnson v. State, 983 S.W.2d 800 (Tex. App.—Houston [14 Dist.] 1998) (aggravated assault can be lesser included of attempted capital murder)
Pitonyak v. State, 253 S.W.3d 834 (Tex. App.—Austin 2003) (requires affirmative evidence for lesser offense; not mere disbelief of charged offense)
Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) (fundamental standard for lesser-included offenses and jury instructions)
Schroeder v. State, 123 S.W.3d 398 (Tex. Crim. App. 2003) (analysis of evidentiary sufficiency for lesser offenses)
Cordova v. State, 733 S.W.2d 175 (Tex. Crim. App. 1987) (temporary insanity by intoxication requires lack of knowledge of wrong or ability to conform conduct)
Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (remedial approach for multiple punishments; vacatur of lesser offenses)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (Almanza standard for unpreserved jury-charge error with egregious-harm analysis)