Bayona v. State , 1976 Tex. Crim. App. LEXIS 1182 ( 1976 )

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for simple assault. Appellant was found guilty in a bench trial and punishment was assessed at one year’s probation. The offense occurred on July 27,1974 and trial was held on February 28, 1975.

Appellant and a co-defendant were charged by information with criminally negligent homicide in the death of one David Martinez. The evidence showed that Martinez, a known hemophiliac, was struck at least once by the appellant in the course of an argument. He died several days later as the result of an intracranial hemorrhage.

The trial court expressly acquitted appellant of criminally negligent homicide, but found him guilty of simple assault on a lesser included offense theory. Arts. 37.08 and 37.09, V.A.C.C.P. The only question presented by this appeal is whether simple assault is a lesser included offense of criminally negligent homicide.

Sec. 19.07, V.A.T.C., Penal Code, defines criminally negligent homicide in the following way:

“(a) A person commits an offense if he causes the death of an individual by criminal negligence.”

“Criminal negligence” is defined in Sec. 6.03(d) of the Code and the information in this case tracked the definition faithfully. Under Sec. 22.01(a)(1) of the Penal Code, a person commits a simple assault if he “intentionally, knowingly, or recklessly causes bodily injury to another . . . .” It can be seen that the mental culpability required to prove an assault is higher than that required for criminally negligent homicide. Sec. 6.02(d), V.A.T.C., Penal Code.

Art. 37.09, V.A.C.C.P., 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.”

The higher degree of mental culpability required for an assault clearly removes it as a lesser included offense under Subsec. (3), above; in fact, a more culpable mental state is required to establish its commission. This distinction also defeats the lesser included offense argument, under Subsec. (1), above. Assault requires proof of a fact not needed to establish criminally negligent homicide, to-wit: a higher degree of culpability.

With respect to Subsec. (2), relied upon by the State, assault certainly involves a less serious injury to the victim than does the homicide offense. But, by the terms of Subsec. (2), this less serious injury must be the only difference between the two offenses, and this is clearly not the situation in this case. Finally, assault is obviously not an attempt to commit negligent homicide under Subsec. (4).

We conclude that simple assault cannot be a lesser included offense of criminally negligent homicide. Compare Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976). Therefore, appellant’s conviction for assault cannot stand.

The judgment is reversed and the prosecution ordered dismissed.