Bell v. State

693 S.W.2d 434, 1985 Tex. Crim. App. LEXIS 1697
Court of Criminal Appeals of Texas·Decided July 10, 1985·No. 67153·Published·Cited by 311 cases

Opinions

OPINION

MILLER, Judge.

This is an appeal from a conviction of aggravated assault. Punishment was assessed by the jury at five years confine[436] ment in the Texas Department of Corrections.

On November 26, 1979, appellant fired four shots from a .22 calibre semi-automatic rifle into the occupied trailer home of his long time, across-the-street neighbor. One bullet passed completely through the trailer. No injuries were sustained. Appellant was convicted of aggravated assault pursuant to V.T.C.A. Penal Code, §§ 22.01(a)(2) and 22.02(a)(4).1 In his first ground of error, appellant contends the trial court erred in failing to grant his requested charge upon the lesser included offense of reckless conduct. We agree and reverse the judgment of the trial court. This is a case of first impression.2

I.

V.T.C.A. Penal Code, § 22.05 (Reckless Conduct) provides:

“(a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(b) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.
(c) An offense under this section is a Class B misdemeanor.”

Appellant asserts that reckless conduct is a lesser included offense of aggravated assault, citing Gallegos v. State, 548 S.W.2d 50 (Tex.Cr.App.1977). In Gallegos, the defendant was convicted of reckless conduct and contended on appeal that the trial court erred in failing to charge the jury on the lesser included offense of assault. In rejecting the defendant’s contention, we stated:

“V.T.C.A. Penal Code, Secs. 22.01 to 22.-04, provide that reckless acts that cause bodily injury constitute assault, but that reckless acts that fall short of injuring another are excluded. V.T.C.A. Penal Code, Sec. 22.05 (Reckless Conduct) applies to those acts that fall short of injuring another. Accordingly, reckless conduct is a lesser and included offense to assault under the Penal Code. This is exactly the reverse of [the defendant’s] contention.” (Emphasis deleted.)

Id. at 50, 51. The State argues the statement in Gallegos that “reckless conduct is a lesser and included offense to assault” is overbroad and mere dictum. We agree.

Whether one offense bears such a relationship to the offense charged so as to constitute a lesser included offense under Art. 37.09, V.A.C.C.P., is an issue which must await a case by case determination. Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980); Ex parte McClelland, 588 S.W.2d 957 (Tex.Cr.App.1979); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976); Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975) (Opinion on Rehearing). A given section of the Penal Code may define more than one way in which an offense can be committed. An allegation that an offense has been committed in one way may include a lesser offense, while an allegation that the offense was committed in another way would not include the lesser offense.3 [437] Martinez v. State, 599 S.W.2d 622 (Tex.Cr.App.1980). V.T.C.A. Penal Code, § 22.01(a) provides three different ways in which the offense of assault may be committed. Thus, Gallegos, supra, should not be read to hold that reckless conduct is a lesser included offense of each form of assault under V.T.C.A. Penal Code, § 22.01(a)(1), (2)or (3). The statement in Gallegos is simply too broad and bypasses analysis.

In addressing appellant’s contention, we begin with the statutory definitions of a lesser included offense set forth in the Code of Criminal Procedure. Article 37.09, V.A.C.C.P. provides:

“An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4)it consists of an attempt to commit the offense charged or an otherwise included offense.”

Each definition of a lesser included offense in Art. 37.09 is stated with reference to “the offense charged,” and specifically states the manner in which the lesser included offense differs from the offense charged. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976) (Opinion on Rehearing). In the instant case, the “offense charged” alleged in pertinent part that appellant:

"... did then and there knowingly and intentionally use a deadly weapon, to wit: a firearm, and did then and there threaten George Smith with imminent bodily injury by the use of said deadly weapon.” 4

The State contends that reckless conduct is not a lesser included offense of the offense charged in this case under any of the provisions of Art. 37.09.5 With respect to subdivision (1) of Art. 37.09, the State specifically asserts that proof of danger of serious bodily injury6 is not established by the same or less facts than proof of a threat of imminent bodily injury.7 While this contention may have merit with respect to simple assault as denounced by V.T.C.A. Penal Code, § 22.01(a)(2), it is not persuasive when the assault is aggravated [438] by the use of a deadly weapon pursuant to V.T.C.A. Penal Code, § 22.02(a)(4).

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Bell v. State, 693 S.W.2d 434, 1985 Tex. Crim. App. LEXIS 1697 (Tex. 1985).

693 S.W.2d 434 (Bell v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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