Bell v. State

• Decision Date: 10 July 1985
• Docket Number: No. 67153,67153
• Citation: 693 S.W.2d 434
• Parties: John BELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 434

693 S.W.2d 434

John BELL, Appellant, v.The STATE of Texas, Appellee.

No. 67153.

Court of Criminal Appeals of Texas En Banc.

July 10, 1985.

Paul Tatum, Nacogdoches, for appellant.

Herbert B. Hancock, Dist. Atty. and Martha J. Sullivan, Asst. Dist. Atty., Nacogdoches, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal from a conviction of aggravated assault.Punishment was assessed by the jury at five years confinement 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)and22.02(a)(4).¹In 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.³Martinez 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. 37.09.⁵With respect to subdivision (1) of Art. 37.09, the State specifically asserts that proof of danger of serious bodily injury ⁶ is not established by the same or less facts than proof of a threat of imminent bodily injury.⁷While 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 by the use of a deadly weapon pursuant to V.T.C.A. Penal Code, § 22.02(a)(4).

Under Art. 37.09(1), supra, reckless conduct is a lesser included offense of aggravated assault as charged in the instant case if it is established by proof of the same or less than all the facts required to establish commission of the offense charged.Proof of the factual elements of the offense is "required" to establish "commission" of the offense charged.⁸Sanders v. State, 664 S.W.2d 705, 709(Tex.Cr.App.1982)(Clinton, J. concurring and dissenting on rehearing).Thus, in the case at bar, in order to establish the commission of the offense charged, the State was required to prove beyond a reasonable doubt that:

(1) A person

(2) intentionally or knowingly⁹

(3) threatened another with imminent bodily injury

(4) by [knowingly and intentionally]¹⁰ using a deadly weapon.

The elements of reckless conduct as defined by V.T.C.A. Penal Code, § 22.05(a), are:

(1) A person

(2) recklessly

(3) engages in conduct

(4) that places another in imminent danger of serious bodily injury.

We now turn to consider whether the State established commission of the lesser included offense of reckless conduct by proof of the same or less than all the facts required to establish the offense charged, aggravated assault by the use of a deadly weapon.In this case, when the State established the higher culpable mental state of intent or knowledge, it necessarily established the lower culpable mental state of recklessness.V.T.C.A. Penal Code, § 6.02(e);Briceno v. State, 580 S.W.2d 842(Tex.Cr.App.1979).The precise issue thus becomes whether proof of threatening another with imminent bodily injury by using a deadly weapon constitutes proof that the actor engaged in conduct that placed another in imminent danger of serious bodily injury.

The term "danger" is not statutorily defined: it should therefore be "read in context and construed according to the rules of grammar and common usage."See, Code Construction Act, Art. 5429b-2, § 2.01, V.A.C.S. Webster's New Collegiate Dictionary 285 (1981) defines danger as "exposure or liability to injury, pain, or loss ..."Danger is also defined as "jeopardy; exposure to loss or injury; peril."Black's Law Dictionary 355 (5th ed. 1979).V.T.C.A. Penal Code, § 1.07(a)(11) statutorily defines the term "deadly weapon" and provides:

"(11)'Deadly weapon' means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury."

Patently, threatening another with imminent bodily injury is engaging in conduct.When that threat is accomplished by the use of a deadly weapon, by definition the victim is "exposed" to the deadly character of the weapon and the inherent risk of serious bodily injury.The danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense.It follows, therefore, that proof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury.

We hold that under Art. 37.09(1), V.A.C.C.P., reckless conduct is a lesser included offense of "the offense charged" in the instant case because it is established by proof of the same facts required to establish the commission of aggravated assault by the use of a deadly weapon.

II.

Merely because a lesser offense is included within the proof of a greater offense, however, does not always warrant a jury charge on the lesser offense.Aguilar v. State, 682 S.W.2d 556(Tex.Cr.App.1985).In Royster v. State, 622 S.W.2d 442(Tex.Cr.App.1981)(Opinion on rehearing), Judge Tom Davis, writing for the Court on rehearing, stated the Texas rule:

"Thus, in determining whether a charge on a lesser included offense is required, a two step analysis is to be used.First, the lesser included offense must be included within the proof necessary to establish the offense charged.Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense."(Citation omitted.)

We have employed this two...