Tucker v. State

519 S.E.2d 745, 238 Ga. App. 645, 99 Fulton County D. Rep. 2630, 1999 Ga. App. LEXIS 894

• Court: Court of Appeals of Georgia
• Decided: June 23, 1999
• Docket: A99A1527
• Status: Published

Opinion

Blackburn, Presiding Judge.

William Thomas Tucker appeals from his conviction of aggravated assault, following a jury trial. Tucker enumerates as error the trial court’s failure to charge the jury on reckless conduct and simple battery as lesser included offenses of aggravated assault. Tucker also contends the trial court erred by failing to give a charge on reckless conduct where the evidence supported giving such a charge. We affirm.

Decided June 23, 1999. Jill L. Anderson, Mary Erickson, for appellant. David McDade, District Attorney, Christy E. Draper, Assistant District Attorney, for appellee.

At trial, Tucker made no written request to charge on either reckless conduct or simple battery.

[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. . . . [However, t]he failure to instruct on a lesser included crime is not error, regardless of whether the evidence would have authorized or demanded such a charge, in the absence of a written request.

(Punctuation omitted.) Taylor v. State, 232 Ga. App. 825, 826 (4) (502 SE2d 540) (1998); Sparks v. State, 232 Ga. App. 179 (1) (501 SE2d 562) (1998). As there was no written request, the trial court did not err by failing to give a charge on the lesser included offense.

Judgment affirmed.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.