No. 01-06-00398-CR
Opinion issued February 15, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 338th District Court Harris County, Texas. Trial Court Cause No. 1041805
Justices Nuchia, Keyes, and Higley.
Laura Carter Higley, Justice.
Appellant, Ricardo Deleon, was charged by indictment with the felony offense of aggravated assault, to which he pleaded not guilty. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2006). A jury found appellant guilty. The trial court assessed punishment at eight years' confinement, pursuant to an agreed plea. In one issue, appellant contends that the trial court erred by denying his requested instruction on the lesser-included offense of deadly conduct. We affirm.
Background
On September 26, 2005, the complainant, Dina Lopez, went to a laundromat to wash a blanket. When she entered, appellant, who was a stranger to Lopez, approached and asked if she needed help. Lopez declined. As Lopez began her wash, appellant began making derogatory remarks about her. Lopez saw her friend, Elizo Soliz, nearby and went over to talk with him. Appellant approached and asked Soliz, "Is this F'ing . . . puta [sic] bothering you?" Soliz replied that Lopez was a friend. Appellant then said to Lopez, "The hurricane should have took [sic] you away." Lopez responded, "You don't even know me, so you shouldn't be talking to me like that." Appellant said, "No, you don't know me" and took out a box cutter, from which protruded a rusty blade. Appellant, who was three to four feet away from Lopez, pointed the blade at her and said, "You know, I could kill you." Lopez was scared and believed that appellant was going to stab or kill her. Lopez and Soliz retreated from appellant, but appellant advanced toward them, waving the box cutter. An employee of the laundromat told appellant to leave, and he complied. Lopez then hid behind a washer and borrowed a cellular telephone from another patron to call the police. Lopez was scared and was unable to dial the phone. Moments later, appellant came running back inside and toward Lopez, with the box cutter in hand. The employee ushered Lopez into a small cashier's room, where Lopez finished her call to the police behind a locked door. Appellant continued to threaten Lopez through the door and then left. The responding police officers, M. Hernandez and J. Martinez, arrested appellant a few blocks from the laundromat, carrying the box cutter. The officers testified that appellant was intoxicated and belligerent. Officer Hernandez testified that the box cutter was capable of causing serious bodily injury or death, if it was put in the proper place on the body. Appellant was charged with the felony offense of aggravated assault. After the close of evidence at trial, appellant requested that an instruction on a lesser-included offense of deadly conduct be included in the charge, which the trial court denied. Appellant was found guilty of aggravated assault, and this appeal followed. Instruction on Lesser-included Offense
In his sole issue, appellant contends that the trial court erred by denying an instruction on the lesser-included offense of deadly conduct. A. Standard of Review and the Law
A defendant is entitled to an instruction on a lesser-included offense if (1) the lesser offense is a lesser — included offense of the charged offense and (2) there is some evidence from which a jury could rationally find that, if the defendant is guilty, he is guilty of only the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex Crim. App. 2006). Under prong one, to be considered a lesser-included offense, the lesser offense must be included within the proof necessary to establish the offense charged. Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App. 2004). This means that the offense must come within the provisions of article 37.09 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Campbell, 149 S.W.3d at 152. Article 37.09 provides that 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. Tex. Code Crim. Proc. Ann. art. 37.09; see Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). Because article 37.09 defines a lesser-included offense in terms of the offense charged and the facts of the case, the determination of whether an offense is a lesser included offense must be settled on a case-by-case basis. Campbell, 149 S.W.3d at 152. If none of the subsections of article 37.09 apply, the lesser offense is not a lesser-included offense as a matter of law and the inquiry ends. Ford v. State, 38 S.W.3d 836, 842 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). If the first prong is satisfied, then we determine, in prong two, if there is some record evidence from which a jury could rationally find that, if the defendant is guilty, he is guilty only of the lesser offense. See id. If both of these prongs are met, the defendant is entitled to a charge on the lesser-included offense. Guzman, 188 S.W.3d at 189. B. Analysis
We begin by setting out the statutory elements of the offense claimed to be a lesser-included offense. Id. Here, the elements of deadly conduct are as follows: (1) the defendant (2) recklessly (3) engaged in conduct that placed another in imminent danger of serious bodily injury. See Tex. Pen. Code Ann. § 22.05 (Vernon 2003). We then compare these elements to the elements of aggravated assault as alleged in the indictment. Guzman, 188 S.W.3d at 189. Here, appellant was charged in the indictment with having "intentionally and knowingly threaten[ed] [Lopez] with imminent bodily injury by using and exhibiting a deadly weapon, namely, A BOX CUTTER." The elements of the offense, that of aggravated assault, as charged in the indictment are: (1) the defendant, Ricardo Deleon (2) "intentionally and knowingly" (3) threatened Dina Lopez with imminent bodily injury, (4) "by using and exhibiting a deadly weapon, namely, A BOX CUTTER." See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2006); Guzman, 188 S.W.3d at 189. We consider whether, in proving aggravated assault as it was alleged in the indictment, the State necessarily had to prove all of the elements of deadly conduct. See Guzman, 188 S.W.3d at 189 n. 7 (citing Jacob v. State, 892 S.W.2d 905, 907-08 (Tex.Crim.App. 1995) (applying article 37.09)). At trial, appellant contended that deadly conduct was a lesser included offense of aggravated assault on the basis that all four of the provisions of article 37.09 were satisfied in this case, as follows: [Counsel]: All those requirements are met in that deadly conduct is clearly a case of where the — it's a set — a subset of the larger set, which is aggravated assault. . . . [Trial Court]: Where is it that you see that? . . . I may be paraphrasing it, but, I believe, it says for that particular offense that it would be a person that commits the offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury, correct? Now, with regard to aggravated assault threat by a deadly weapon, that would require intentionally and knowingly threatening with a deadly weapon, bodily injury; am I correct? [Counsel]: Uh-huh. [Trial Court]: So, actually, a lesser-included offense requires something more than the charged offense, correct? [Counsel]: Is that what you heard from me, you heard me say that? [Trial Court]: I'm asking if that is correct. [Counsel]: That the lesser included offense would include an element not included in the proof of an aggravated assault? [Trial Court]: I'm asking you to address that issue. [Counsel]: I'm sorry. I'm not sure I understand. [Trial Court]: Well, you pointed to 37.09. 37.09(3) says different from the offense charged only in respect that a less culpable mental state suffices to establish its commitment. What I'm pointed to [sic], the lesser you're asking for would require proof of imminent danger of serious bodily injury. The offense of aggravated assault, as charged in the indictment here, would only require proof of threat, bodily injury. Am I not correct? Imminent bodily injury as opposed to serious bodily injury, which deadly conduct would require. [Counsel]: Well, that's what the statute says, Judge, but I — I would still —. [Trial Court]: In fairness to you, I'm giving you an opportunity to address that. I'm looking at that differently. But you had made the assertion that under 37.09 it fit all of those. And I'm pointing to 37.09(3) as to whether that is accurate or not. [Counsel]: Well, I think the lesser — the less culpable mental state that is talked about in 37.09(3), Judge, is that in order to commit the offense of aggravated assault, you have to knowingly or intentionally commit the offense of deadly conduct, the lesser culpable mental state is required of reckless. [sic] [Trial Court]: No question about that. But it requires proof of something different, correct, serious bodily injury as opposed to bodily injury? [Counsel]: Well, this is — 3 only talks of the culpable mental state. [Trial Court]: It differs from the charged offense only in the respect that a less culpable mental state suffices to establish its commission. [Counsel]: I'm saying that's what we have. Deadly conduct requires reckless, and that's all the mental culpability, mental state it requires. Aggravated assault requires something higher, knowingly and intentionally. [Trial Court]: Also, it indicates 37.09. It differs only in the respect that a less serious risk of injury to the same person or property or public, establishes its commission. I guess what I'm asking you to address is deadly conduct seems to require something more in terms of that. After further discussion of case law, the trial court denied appellant's proposed instruction, in part, on the basis that the proffered lesser-included offense, deadly conduct, failed prong one of the analysis because it was not included within the proof necessary to establish the charged offense of aggravated assault. See Guzman, 188 S.W.3d at 188 (requiring, in prong one of two-prong test, that lesser offense must be a lesser-included offense of charged offense). As the above excerpt shows, the trial court considered the differences in the level of culpability required to establish each offense and the differences in the degree of injury required to establish each offense. On appeal, appellant confines his issue under prong one to the contention that the trial court erred by "ruling that as a matter of law deadly conduct was not a lesser included offense of aggravated assault in the context of this case based on a misinterpretation of the relative culpabilities implied by the different mental states requirements [sic] of aggravated assault and deadly conduct." (Emphasis added.) We disagree that this is the basis of the trial court's denial of appellant's requested instruction. Article 37.09(3) provides that an offense is a lesser included offense if "it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." Tex. Code Crim. Proc. Ann. art. 37.09(3). Deadly conduct requires a showing that appellant acted with a reckless state of mind. Aggravated assault, in this case, requires a showing that appellant acted intentionally or knowingly. As appellant contends, a reckless mens rea is a less culpable mental state than an intentional or knowing mens rea. See Bell v. State, 693 S.W.2d 434, 438 (Tex.Crim.App. 1985). However, in order for deadly conduct to be considered a lesser included offense of aggravated assault on this basis under article 37.09, the differences in the level of culpability would have to be the only respect in which the offenses differ. See Tex. Code Crim. Proc. Ann. art. 37.09(3) (providing that an offense is a lesser included offense if "it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission"). As the trial court pointed out and as the State contends on appeal, the level of culpability is not the only manner in which the offenses differ. Not only do the offenses differ with regard to the level of culpability required to establish commission of the offense, but the offenses differ with respect to the degree of injury or risk of injury that suffices to establish commission of each offense. Deadly conduct requires a showing involving "serious bodily injury," whereas aggravated assault involves only "bodily injury." We conclude that subsection (3) of article 37.09 is not applicable in this case. Appellant has not argued on appeal that any other subsection of 37.09 applies. Because appellant has not shown that deadly conduct is a lesser included offense of aggravated assault based on any provision of article 37.09, he has not satisfied prong one of the analysis. Because he has not satisfied prong one, we do not reach prong two. Accordingly, we overrule appellant's sole issue. Conclusion
We affirm the trial court's judgment.