Anthony Robert Safian v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00153-CR
NO. 02-15-00154-CR
NO. 02-15-00155-CR
ANTHONY ROBERT SAFIAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1383629D, 1383630D, 1386101D
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MEMORANDUM OPINION1
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In three points, appellant Anthony Robert Safian appeals his convictions
for aggravated assault on a public servant and possession of less than one gram
1
See Tex. R. App. P. 47.4.
of heroin.2 In a fourth point, he appeals a deadly weapon finding associated with
his conviction for evading arrest while using a vehicle.3 We overrule all of
appellant’s points; modify the judgment in the heroin possession case, trial court
number 1386101D;4 affirm that judgment as modified; and affirm the judgments
in trial court cause numbers 1383629D and 1383630D in all respects.
Background Facts
In September 2014, Fort Worth Police Department (FWPD) Officer Juan
Trujillo and another officer, while undercover, were monitoring a home where
they suspected that illegal drug sales were occurring. The home was in an area
in which drug-related crime was common. The officers saw a truck pull into the
driveway of the home, and appellant got out of the truck and went inside. Less
than five minutes later, he left the home, got back into the truck, and drove away.
In an unmarked car, Officer Trujillo and his partner began to follow him.
Eventually, appellant stopped in the middle of a narrow residential road
that had overgrown vegetation and uneven pavement on its sides.5 Officer
Trujillo’s partner honked a horn several times, but the truck remained in the road
2
See Tex. Penal Code Ann. § 22.02(a)(2), (b)(2)(B) (West 2011); Tex.
Health & Safety Code Ann. § 481.115(a)–(b) (West 2010).
3
See Tex. Penal Code Ann. § 38.04(a) (West Supp. 2015).
4
This cause number relates to appellate cause number 02-15-00155-CR.
5
Officer Trujillo opined that two cars would not be able to safely pass each
other on the road. He also testified that the road has deep potholes.
2
approximately fifteen feet in front of the officers’ car. The officers saw appellant
lean toward his truck’s center console; Officer Trujillo believed that appellant was
“ingesting . . . narcotics in his arm.”
Officer Trujillo called for a marked police unit to join him and his partner
there. FWPD Officer Matthew Pearce arrived. He parked his patrol car about
ten feet in front of appellant’s truck with the vehicles facing each other and got
out of the car. He saw the truck remaining in the middle of the road, which he
believed to be a traffic offense. After Officer Pearce had taken a few steps
toward appellant’s truck and had unholstered his gun, according to Officer
Trujillo, appellant sat up “really straight,” put the truck into gear, and quickly
“sped towards Officer Pearce.” Officer Trujillo saw Officer Pearce’s eyes “get
really big” as the truck spun its tires and moved toward Officer Pearce. From
Officer Trujillo’s vantage point, he initially thought that the truck had hit Officer
Pearce. But Officer Trujillo then saw Officer Pearce get into his patrol car and
begin following appellant. From a distance, Officer Trujillo and his partner also
followed Officer Pearce and appellant.
After a long chase in which appellant ran stop signs, drove the wrong way
into oncoming traffic to avoid a traffic buildup, and traveled at speeds of forty to
fifty miles over the limit, he crashed with another vehicle. Appellant’s truck
sustained heavy damage.6 Officer Pearce approached the truck and
6
Exhibits that the trial court admitted show that appellant’s truck sustained
significant damage and that the other vehicle involved in the accident had
3
commanded appellant to show his hands. Appellant did not do so, and because
the driver’s side door to the truck would not open, Officer Pearce broke
appellant’s window. Officer Pearce said to appellant that appellant had almost
“killed all these people,” and he also told appellant that he was in a “lot of trouble”
because he had “[run] from [Officer Pearce].” Appellant said to Officer Pearce, “I
can’t believe I did that.” Later, Officer Pearce again told appellant that he had
run from the police.
After appellant got out of the truck, the police conducted an inventory of it.
On the driver’s-side floorboard of the truck, Officer Pearce found a silver metal
spoon with heroin on it.7 Officer Pearce also found needles “strewn throughout
the vehicle.”
Through separate indictments, a grand jury charged appellant with
aggravated assault against a public servant, possession of less than a gram of
heroin, and evading arrest or detention while using a vehicle. The indictment for
appellant’s evading arrest charge included a paragraph alleging that he had used
a deadly weapon during that offense. All three indictments contained a
paragraph alleging that appellant had been previously convicted of at least one
substantial damage to its front end. A video recording admitted into evidence
indicates that the driver of the other vehicle sustained physical injuries that
required a neck brace and transport to a hospital.
7
The spoon had a dark substance on it, and the bottom side of the spoon
appeared to be burnt. A forensic chemist tested the dark substance on the
spoon and determined that it was heroin.
4
felony; the indictment for possession of heroin alleged that he had been
previously convicted of two state jail felonies. Appellant filed several pretrial
motions, chose the trial court to assess his punishment if he was convicted of the
charges, and pled not guilty to all of them. He also pled not true to the
indictments’ enhancement and deadly weapon allegations.
At trial, Officer Pearce testified that as he pulled up to the scene, his patrol
lights were flashing, but appellant was looking down while sitting in the truck.
Officer Pearce explained that when he got out of his car, he and appellant
“locked eyes.” Appellant looked surprised to see Officer Pearce there.
According to Officer Pearce, from just over ten feet away, appellant “yanked . . .
down” the gearshift, “hit the gas[,] and accelerated towards” Officer Pearce.
Officer Pearce explained that all of this “happened kind of simultaneously,” within
the span of just a few seconds. Officer Pearce’s driver’s-side door was still open,
so he retreated to his car and threw himself inside of it to avoid getting hit. As
appellant passed by the driver’s side door, most of Officer Pearce’s body was in
his car, but his legs were hanging out. Officer Pearce testified that he was afraid
of getting hit and of appellant hitting the door, which could have pinned Officer
Pearce’s legs. Officer Pearce opined that appellant’s truck came “within a foot of
striking [his patrol car’s] door.”
After receiving the parties’ evidence and arguments, the jury found
appellant guilty of all of the charges and found that he had used a deadly weapon
5
while evading arrest.8 The trial court received further evidence and arguments
concerning appellant’s punishment. The court found the enhancement
paragraph in each indictment to be true and sentenced him to eighteen years’
confinement for evading arrest or detention while using a vehicle, eighteen years’
confinement for aggravated assault against a public servant, and ten years’
confinement for possessing less than a gram of heroin. The trial court included a
deadly weapon finding in the judgments for evading arrest and for aggravated
assault against a public servant and ordered all of the sentences to run
concurrently. Appellant brought these appeals.
Evidentiary Sufficiency
In his first, second, and fourth points, appellant contends that the evidence
is insufficient to support his convictions for aggravated assault of a public servant
and possession of less than a gram of heroin and to support the jury’s finding
that he used a deadly weapon during the evading arrest offense. In our due-
process review of the sufficiency of the evidence to support a conviction, we view
8
The jury deliberated for hours. At one point during the deliberation, the
jury sent a note to the trial court that stated that the jury had made a decision on
the charges for evading arrest and possessing heroin but that the jury was at a
stalemate on the aggravated assault charge. The trial court gave the jury an
Allen charge, and less than an hour later, the jury found appellant guilty of
aggravated assault. See Allen v. United States, 164 U.S. 492, 501–02, 17 S. Ct.
154, 157 (1896); see also Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim.
App. 2006) (“An Allen charge is a supplemental charge sometimes given to a jury
that declares itself deadlocked. It reminds the jury that if it is unable to reach a
verdict, a mistrial will result, . . . and there is no guarantee that a second jury
would find the issue any easier to resolve.”).
6
all of the evidence in the light most favorable to the verdict to determine whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014);
see also Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (applying
the Jackson standard to review a deadly weapon finding).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Dobbs, 434 S.W.3d at 170. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Dobbs, 434 S.W.3d at 170. Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The standard of review is the
same for direct and circumstantial evidence cases; circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor. Dobbs, 434
S.W.3d at 170; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
We determine whether the necessary inferences are reasonable based
upon the cumulative force of the evidence when viewed in the light most
favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.
2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We
7
must presume that the factfinder resolved any conflicting inferences in favor of
the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at
2793; Dobbs, 434 S.W.3d at 170.
Aggravated assault
In his first point, appellant argues that the evidence is insufficient to
support his conviction for aggravated assault of a public servant. To obtain a
conviction for aggravated assault of a public servant under the facts of this case,
the State was required to prove that appellant intentionally or knowingly
threatened Officer Pearce with imminent bodily injury, used or exhibited a deadly
weapon (his truck), and knew that Officer Pearce was a public servant and was
lawfully discharging an official duty. See Tex. Penal Code Ann. §§ 22.01(a)(2)
(West Supp. 2015), 22.02(a)(2), (b)(2)(B). A jury may infer a defendant’s intent
from circumstantial evidence such as the defendant’s words or conduct. Lozano
v. State, 359 S.W.3d 790, 814 (Tex. App.—Fort Worth 2012, pet. ref’d).
Appellant expressly limits his argument to challenging the proof concerning
the intentional or knowing threat of Officer Pearce with a deadly weapon; he does
not assert that the evidence is insufficient to prove that he knew Officer Pearce
was a public servant who was lawfully discharging an official duty. The gist of
appellant’s argument is that the evidence shows only that he “unthinkingly
attempted to get away from [Officer] Pearce by driving past him”; appellant
contends that the evidence of his “operation of [the truck] was not indicative of an
attempt to convey a threat of imminent bodily injury.” The State contends that
8
appellant’s actions and words allowed a rational jury to find that he intentionally
or knowingly threatened Officer Pearce.
This is the classic example of an appeal in which we must defer to the
jury’s resolution of conflicting reasonable inferences that the evidence produced.
See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170; see
also Raybon v. State, No. 02-12-00071-CR, 2013 WL 4129126, at *5 (Tex.
App.—Fort Worth Aug. 15, 2013, pet. dism’d) (mem. op., not designated for
publication) (“[T]he jury was entitled to choose between two reasonable
inferences, and we must defer to that choice.”). Specifically, the jury could have
reasonably inferred that appellant intentionally or knowingly threatened Officer
Pearce with a deadly weapon from (1) Officer Trujillo’s testimony that upon
appellant’s seeing Officer Pearce, appellant “sped towards [him]” at a high
enough rate of speed to spin his tires and kick up dust from the rear of the truck;
(2) Officer Trujillo’s testimony that appellant’s truck drove close enough to Officer
Pearce that he thought it hit Officer Pearce; (3) Officer Pearce’s testimony that
after he and appellant made eye contact and he told appellant to not move,
appellant “yanked . . . down” the gearshift, “hit the gas[,] and accelerated towards
[Officer Pearce]”; (4) Officer Pearce’s testimony that he had to throw himself into
his patrol car to avoid getting hit and that the truck would have struck him had he
not done so;9 (5) Officer Pearce’s testimony that appellant’s truck came within a
9
Given this evidence, we cannot agree with appellant’s statement that “any
fear allegedly felt by [Officer] Pearce was manifestly not reasonable.”
9
foot of striking his patrol car’s door; and (6) Officer Pearce’s testimony that he
feared for his safety. Cf. Swartz v. State, Nos. 05-03-00577-CR, 05-03-00578-
CR, 05-03-00579-CR, 2004 WL 1234047, at *1, *5 (Tex. App.—Dallas June 4,
2004, pets. ref’d) (not designated for publication) (holding that the jury could infer
a defendant’s intent to threaten an officer when the defendant smiled and
accelerated toward the officer and almost hit the officer); see also Creighton v.
State, No. 08-09-00022-CR, 2011 WL 743073, at *3 (Tex. App.—El Paso Mar. 2,
2011, no pet.) (not designated for publication) (reaching the same conclusion
under similar circumstances). Conversely, a jury could have reasonably inferred
that appellant did not intend to threaten Officer Pearce, but only had the mindset
of evading him, from (1) the evidence indicating that the road’s conditions
necessarily required appellant to drive close to Officer Pearce to get around him;
(2) the officers’ testimony that appellant did not attempt to drive toward Officer
Pearce again after passing him; (3) the heroin found in appellant’s truck, which
may have given him motivation to evade capture; (4) Officer Pearce’s statements
after appellant’s wreck that focused on appellant’s evasion of him and did not
mention that he had felt threatened; (5) Officer Pearce’s testimony that he did not
see appellant turn the truck specifically in his direction; and (6) the evidence
showing that appellant was not violent or hostile toward Officer Pearce during
their conversation that occurred after the wreck.
Viewing the evidence in the light most favorable to the jury’s verdict and
deferring to the jury’s implicit choice between these reasonable conflicting
10
inferences, we conclude that a rational jury could have found beyond a
reasonable doubt that appellant intentionally or knowingly threatened Officer
Pearce with a deadly weapon. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Dobbs, 434 S.W.3d at 170. We therefore conclude that the evidence is sufficient
to sustain appellant’s conviction for aggravated assault, and we overrule his first
point.
Deadly weapon finding on evading arrest conviction
In his second point, appellant contends that the evidence is insufficient to
support the deadly weapon finding associated with his conviction for evading
arrest. As we have recently explained,
A deadly weapon is “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.”
For evidence to be sufficient to sustain a deadly weapon finding, it
must demonstrate that the object meets the statutory definition of a
deadly weapon, that the deadly weapon was used or exhibited
“during the transaction from which” the felony conviction was
obtained, and that other people were put in actual danger. “A motor
vehicle may become a deadly weapon if the manner of its use is
capable of causing death or serious bodily injury. Specific intent to
use a motor vehicle as a deadly weapon is not required.”
Daniel v. State, No. 02-14-00246-CR, 2015 WL 4043351, at *5 (Tex. App.—Fort
Worth July 2, 2015, no pet.) (citations omitted); see also Tex. Penal Code Ann.
§ 1.07(a)(17) (West Supp. 2015); Cates v. State, 102 S.W.3d 735, 738 (Tex.
Crim. App. 2003) (“An automobile can be a deadly weapon if it is driven so as to
endanger lives.”).
11
We cannot agree with appellant’s position that the State failed to prove
these elements. The evidence shows that in the afternoon rush hour and on an
approximate two-mile stretch of roadway where other cars were present,
appellant committed numerous traffic violations, including running stop signs and
driving into oncoming traffic;10 that he traveled at speeds of forty to fifty miles per
hour over the speed limit; and that he was eventually involved in an accident that
disabled the automobile that he crashed with and caused its airbag to deploy,
caused physical pain to the driver of that automobile, and sprayed debris from
the two vehicles across a roadway. Officer Pearce testified more than once that
appellant’s truck was capable of causing death or serious bodily injury, and he
also explained that there was significant traffic on the road where the accident
occurred at that time of day.
Viewing all of the evidence in the light most favorable to the deadly
weapon finding, we conclude that a rational jury could have found beyond a
reasonable doubt that appellant’s truck qualified as a deadly weapon in the
manner of its use during the evading arrest offense. See Tex. Penal Code Ann.
§ 1.07(a)(17)(B); Drichas, 175 S.W.3d at 798; Daniel, 2015 WL 4043351, at *5–
6; see also State v. Sneed, No. 09-14-00232-CR, 2014 WL 4755502, at *2–3
10
Officer Pearce testified that appellant “crossed into oncoming traffic to
get around the traffic that was slow moving at the light.” [Emphasis added.]
Furthermore, the video from Officer Pearce’s body camera shows the presence
of other cars at the scene of the accident. And the accident occurred close to a
Wal-Mart store. Given these facts, we cannot agree with appellant’s assertion on
appeal that there is “little evidence that other motorists were present.”
12
(Tex. App.—Beaumont Sept. 24, 2014, pet. ref’d) (mem. op., not designated for
publication) (holding that evidence was sufficient to support a deadly weapon
finding when in the course of evading arrest, the defendant exceeded the speed
limit, swerved in and out of traffic, struck a curb on two occasions, and failed to
stop or slow down at intersections); Turner v. State, No. 08-11-00318-CR, 2013
WL 5516447, at *4 (Tex. App.—El Paso Oct. 2, 2013, no pet.) (not designated for
publication) (holding that the evidence was sufficient to show that a defendant
used his vehicle as a deadly weapon when he exceeded the speed limit around
other vehicles, swerved between lanes, drove through a red light, and nearly
collided with another car).11 We overrule appellant’s second point.
Possession of heroin
In his fourth point, appellant asserts that the evidence is insufficient to
support his conviction for possessing less than a gram of heroin. To obtain
appellant’s conviction for that offense, the law required the State to prove that he
intentionally or knowingly possessed less than a gram of heroin. See Tex.
Health & Safety Code Ann. § 481.115(a)–(b). He possessed the heroin if he had
actual care, custody, control, or management of it and knew that it was a
controlled substance. Id. § 481.002(38) (West Supp. 2015); Evans v. State, 202
S.W.3d 158, 161 (Tex. Crim. App. 2006). The State must have proved through
direct or circumstantial evidence that his connection with the heroin was more
11
We have reviewed the three comparative cases cited in appellant’s brief
on this point, and we conclude that they are distinguishable.
13
than fortuitous. Evans, 202 S.W.3d at 161–62. Links that may establish a
defendant’s connection to illegal drugs include the defendant’s presence when a
search is conducted, whether the contraband was in plain view, the defendant’s
proximity to and the accessibility of the narcotic, whether the defendant
possessed other contraband or narcotics when arrested, whether the defendant
attempted to flee, whether the defendant made furtive gestures, whether other
contraband or drug paraphernalia were present, and whether the defendant
owned or had the right to possess the place where the drugs were found. Id. at
162 n.12; see Burrell v. State, 445 S.W.3d 761, 765 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d) (“It is not the number of links that is dispositive, but rather,
the logical force of all the evidence, both direct and circumstantial.”).
We conclude that the evidence is sufficient to show that appellant had care
and management over the heroin and knew that it was a controlled substance.
See Evans, 202 S.W.3d at 161. Specifically, the record shows that Officer
Trujillo was conducting surveillance on a confirmed drug house;12 that appellant
went inside the house and left it minutes later; that appellant then stopped his
truck in the middle of a road while leaning toward the center console (which
Officer Trujillo perceived as appellant’s attempt to use drugs); that appellant
became alarmed when he saw Officer Pearce standing near the truck; that
12
Officer Trujillo testified that the police had received complaints that the
house was a “narcotics location” and that the police had used someone to
conduct a controlled purchase of drugs there.
14
appellant fled from the police after passing Officer Pearce;13 and that Officer
Pearce later discovered heroin, a burnt spoon, and several needles in plain view
inside the truck that appellant had solely occupied. Viewing these facts and the
remaining evidence in the light most favorable to the jury’s verdict, we conclude
that the jury could have rationally found beyond a reasonable doubt that
appellant intentionally or knowingly possessed heroin. See Dobbs, 434 S.W.3d
at 170; see also Harmond v. State, 960 S.W.2d 404, 406–07 (Tex. App.—
Houston [1st Dist.] 1998, no pet.) (en banc) (holding that evidence was sufficient
to support a conviction for possession of cocaine because the defendant was
alone in a car with drug paraphernalia in plain view and easily accessible to
him).14 We overrule appellant’s fourth point.
Alleged Jury Charge Error
In his third point, appellant argues that the trial court erred by denying his
request for an instruction concerning deadly conduct as a lesser-included offense
in the jury charge for aggravated assault. All alleged jury-charge error must be
13
In his reply brief, appellant concedes that it is “reasonable to infer that
[his] flight indicates his consciousness of guilt to the crime of possession of a
controlled substance.”
14
Roberson v. State, which appellant relies on for comparison, is
distinguishable. See 80 S.W.3d 730, 736–41 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) (holding that the evidence was insufficient to link a defendant to
drugs when the defendant drove a car that had three occupants, the drugs were
found close to one of the occupant’s seats, the occupants gave different stories
about details of their trip, and the defendant attempted to disassociate himself
from one of the passengers).
15
considered on appellate review. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.
Crim. App. 2012). In our review of a jury charge, we first determine whether error
occurred; if error did not occur, our analysis ends. Id.
After the parties rested and closed during the guilt-innocence phase of the
trial, the trial court held a conference concerning the jury charge. During the
conference, appellant’s counsel stated,
[W]e would submit that there is evidence to support a lesser included
on deadly conduct, reckless -- deadly conduct is a lesser-included
offense of aggravated assault by threat. And, basically, what has to
be shown is use of a deadly weapon recklessly puts someone in
danger of serious bodily injury. And we believe that there are facts
that would support a finding that he acted recklessly even if he didn’t
intend or knowingly threaten the officer when he drove by him.
The trial court denied appellant’s request to include the offense of deadly conduct
in the charge for aggravated assault.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must qualify as
a lesser-included offense under article 37.09 of the code of criminal procedure.
Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d
4, 8 (Tex. Crim. App. 1998). Second, some evidence must exist in the record
that would permit a jury to rationally find that if the appellant is guilty, he is guilty
only of the lesser offense. Hall, 225 S.W.3d at 536; Rousseau, 855 S.W.2d at
672–73.
16
An offense is a lesser-included offense of another offense, under article
37.09(1), if the indictment for the greater-inclusive offense either: (1) alleges all
of the elements of the lesser-included offense, or (2) alleges elements plus facts
(including descriptive averments, such as non-statutory manner and means, that
are alleged for purposes of providing notice) from which all of the elements of the
lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259,
273 (Tex. Crim. App. 2009) (op. on reh’g). Both statutory elements and any
descriptive averments alleged in the indictment for the greater inclusive offense
should be compared to the statutory elements of the lesser offense. Id. If a
descriptive averment in the indictment for the greater offense is identical to an
element of the lesser offense, or if an element of the lesser offense may be
deduced from a descriptive averment in the indictment for the greater-inclusive
offense, this should be factored into the lesser-included offense analysis in
asking whether all of the elements of the lesser offense are contained within the
allegations of the greater offense. Id.
As charged through the indictment pertinent to this point, a person
commits aggravated assault on a public servant by intentionally or knowingly
threatening a public servant with imminent bodily injury and using or exhibiting a
deadly weapon during the commission of the offense. See Tex. Penal Code
Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B). A person commits deadly conduct if
he “recklessly engages in conduct that places another in imminent danger of
serious bodily injury.” Id. § 22.05(a) (West 2011).
17
Appellant relies on the court of criminal appeals’s decision in Bell v. State
to contend that deadly conduct is a lesser-included offense of aggravated assault
by threat. See 693 S.W.2d 434, 439 (Tex. Crim. App. 1985). There, the
defendant fired four gunshots into his neighbor’s trailer, was convicted of
aggravated assault, and contended on appeal that the trial court should have
granted his request for a lesser-included instruction on reckless conduct (which is
now known as deadly conduct). See id. at 436. In resolving that argument, the
court of criminal appeals noted that whether
one offense bears such a relationship to the offense charged so as
to constitute a lesser included offense under [article 37.09] is an
issue which must await a case by case determination. 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.
Id. (citations omitted).
The defendant in Bell had been charged through an indictment that alleged
that he “knowingly and intentionally use[d] 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.” Id. at 437 (emphasis added). In concluding that
reckless conduct was a lesser-included offense of aggravated assault as charged
under this language, the court of criminal appeals stated,
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.
18
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. 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.
....
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 [article 37.09], 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.
Id. at 438–39 (emphasis added) (citations omitted); see also Guzman v. State,
188 S.W.3d 185, 190 & n.9 (Tex. Crim. App. 2006) (citing Bell approvingly and
holding that deadly conduct was a lesser-included offense of aggravated assault
under specific circumstances).
But deadly conduct is not a lesser-included offense of aggravated assault
under all circumstances. See Hall, 225 S.W.3d at 531, 535 (stating that the
“pleadings approach is the sole test for determining in the first step whether a
party may be entitled to a lesser-included-offense instruction” and noting that
19
when “the greater offense may be committed in more than one manner, the
manner alleged will determine the availability of lesser-included offenses”). And
courts have distinguished Bell to hold that deadly conduct is not a lesser-included
offense of aggravated assault when, as here, the indictment alleges that the
defendant used or exhibited a deadly weapon.
For example, in Miller v. State, Miller was indicted for aggravated assault
against a public servant under the following language: “[Miller] did then and
there intentionally or knowingly threaten [the victim] with imminent bodily injury
and did then and there use or exhibit a deadly weapon, . . . during the
commission of said assault and the defendant did then and there know that the
[victim] was then and there a public servant.” 86 S.W.3d 663, 664 (Tex. App.—
Amarillo 2002, pet. ref’d) (emphasis added). On appeal, Miller argued that the
trial court should have charged the jury on deadly conduct as a lesser-included
offense. Id. Distinguishing Bell, the Amarillo court held that Miller was not
entitled to such a charge, explaining,
In appellant’s case, . . . the indictment reads differently than
the language used in the indictment that was central to the Bell
court’s disposition of that case. Whereas the indictment in Bell
charged the defendant . . . with committing the offense of
aggravated assault by “using” a deadly weapon, the indictment in
appellant’s case charged appellant with committing the offense by
“using or exhibiting” a deadly weapon. Thus, proving the offense as
alleged in the indictment does not require proof that appellant “used”
a deadly weapon; proof that appellant “exhibited” a deadly weapon
in the commission of the offense would suffice. The difference is
dispositive, as it does not necessarily follow that the danger of
serious bodily injury is established when a deadly weapon is
“exhibited” in the commission of the offense as opposed to being
20
“used.” Therefore, under the circumstances of this case, deadly
conduct is not a lesser-included offense of aggravated assault as
charged because the statutory elements of deadly conduct would
not necessarily be established by proof of the same or less than all
the facts required to establish the commission of the offense
charged. The trial court, therefore, did not commit error in refusing
to charge the jury on deadly conduct as a lesser-included charge.
Id. at 666–67 (emphasis added).
We agree with the reasoning in Miller that the necessary implication of the
elements of deadly conduct (in particular, placing another in “imminent danger of
serious bodily injury”) that arises when a defendant threatens bodily injury by
using a deadly weapon does not necessarily arise when a defendant threatens
bodily injury by using or exhibiting a deadly weapon.15 See id.; see also
Schreyer v. State, No. 05-03-01127-CR, 2005 WL 1793193, at *7–8 (Tex. App.—
Dallas July 29, 2005, pet. ref’d) (not designated for publication) (following Miller
and determining that deadly conduct was not a lesser-included offense of
aggravated assault under similar circumstances). Therefore, we hold that deadly
conduct was not a lesser-included offense of aggravated assault under article
37.09 as the latter offense was charged here.16 See Tex. Code Crim. Proc. Ann.
15
We recognize that another court has reached a conclusion contrary to
the one in Miller. See Amaro v. State, 287 S.W.3d 825, 829 (Tex. App.—Waco
2009, pet. ref’d).
16
Appellant’s indictment for aggravated assault on a public servant states,
ANTHONY ROBERT SAFIAN, hereinafter called Defendant, in the
County of Tarrant and State aforesaid, on or about the 2nd day of
September 2014, did
21
art. 37.09; Miller, 86 S.W.3d at 666–67. We hold that the trial court did not err by
denying appellant’s request for an instruction on deadly conduct, and we overrule
his third point. See Hall, 225 S.W.3d at 528.
Modification of Judgment
Finally, although appellant has not raised any argument concerning the
language of the trial court’s judgment related to the heroin-possession charge,
we have noticed that the court’s judgment describes that offense as a “3RD
DEGREE FELONY” even though appellant was convicted of a state jail felony
with a punishment enhancement to the third-degree felony range. See Tex.
Health & Safety Code Ann. § 481.115(b) (classifying possession of less than one
gram of a Penalty Group 1 controlled substance as a state jail felony); see also
Tex. Penal Code Ann. § 12.425(a) (West Supp. 2015) (stating that a defendant
shall be punished for a third-degree felony when the defendant is on trial for a
state jail felony and has been previously convicted of two state jail felonies).
Thus, we modify the judgment in trial court cause number 1386101D to show
appellant’s conviction for a state jail felony.17 See Tex. R. App. P. 43.2(b);
INTENTIONALLY OR KNOWINGLY THREATEN IMMINENT
BODILY INJURY TO M. PEARCE, A PUBLIC SERVANT, . . . AND
THE DEFENDANT DID USE OR EXHIBIT A DEADLY WEAPON
DURING THE COMMISSION OF THE ASSAULT, TO-WIT: A
MOTOR VEHICLE, THAT IN THE MANNER OF ITS USE OR
INTENDED USE WAS CAPABLE OF CAUSING DEATH OR
SERIOUS BODILY INJURY[.]
17
His third-degree felony punishment range for the offense remains
applicable.
22
Ostrander v. State, No. 02-12-00159-CR, 2013 WL 3064547, at *4 (Tex. App.—
Fort Worth June 20, 2013, no pet.) (mem. op., not designated for publication)
(modifying a judgment sua sponte to make a clerical correction).
Conclusion
Having overruled all of appellant’s points, we affirm the trial court’s
judgments in its cause numbers 1383629D and 1383630D in all respects, modify
the court’s judgment in cause number 1386101D to reflect appellant’s conviction
for a state jail felony, and likewise affirm that judgment as modified.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 3, 2016
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