DocketNumber: NOS. PD–0323–16 & PD–0324–16 & PD–0325–16
Citation Numbers: 543 S.W.3d 216
Judges: Alcala
Filed Date: 3/21/2018
Status: Precedential
Modified Date: 1/21/2022
In this case we consider whether, in a prosecution for aggravated assault by threat in which it was alleged that the defendant used or exhibited a motor vehicle as a deadly weapon, the defendant was entitled to a lesser-included-offense instruction on deadly conduct. The trial court rejected the request by Anthony Robert Safian, appellant, for such an instruction, and the court of appeals upheld that ruling by determining that, as a matter of law, deadly conduct is not a lesser-included offense of the charged offense under these circumstances. We disagree. Having already held in Bell v. State that deadly conduct, as a matter of law, is a lesser-included offense of aggravated assault by threat when it is alleged that the defendant used a deadly weapon during the commission of the offense, we now reach that same holding in the instant case where it was alleged that appellant used or exhibited a motor vehicle as a deadly weapon. See Bell v. State ,
I. Background
In September 2014, while undercover police officers were monitoring a suspected drug house, the officers observed appellant arrive at the house, enter it, and then depart within the span of five minutes. The officers followed appellant's vehicle as he left the house until he stopped a short distance away in the middle of a side street. The officers called for a marked police car to effectuate a traffic stop of appellant's vehicle. Officer Pearce arrived in a marked patrol car and parked approximately ten to twenty feet directly in front of appellant's vehicle that was still positioned in the middle of the street. Officer *218Pearce got out of his patrol car and began to approach appellant's vehicle on foot. When he noticed Officer Pearce approaching, appellant quickly placed his vehicle in gear and accelerated forward. Officer Pearce jumped into his patrol car to avoid being hit. Appellant's vehicle did not hit Officer Pearce or his patrol car, but appellant's vehicle came within about a foot of striking the patrol car's open door. A high-speed chase ensued during which appellant ran stop signs and drove into oncoming traffic before colliding with another vehicle, which ended the pursuit and resulted in his arrest. Police officers then found heroin and drug paraphernalia in his vehicle.
Appellant was charged with three offenses: aggravated assault on a public servant, evading arrest or detention while using a vehicle, and possession of less than a gram of heroin. The indictment for aggravated assault on a public servant, the subject of the instant petition for discretionary review, alleged,
[Appellant] did intentionally or knowingly threaten imminent bodily injury to M. Pearce, a public servant ... and [appellant] 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[.]
Appellant pleaded not guilty to the three charges and he was tried before a single jury.
At the close of evidence, appellant requested an instruction on deadly conduct as a lesser-included offense to the charged offense of aggravated assault on a public servant. See TEX. PENAL CODE §§ 22.05(a) ; 22.02(a)(2), (b)(2)(B). The trial court denied the request. The jury found appellant guilty of all three charges and the enhancement paragraphs true, and the trial court assessed punishment at eighteen years' confinement for both the evading arrest and aggravated assault on a public servant charges, and ten years' confinement for possession of heroin.
On appeal, appellant argued that the trial court erred by refusing his request for a lesser-included offense instruction on deadly conduct. Appellant contended that this Court's decision in Bell v. State established that deadly conduct is a lesser-included offense of aggravated assault by threat when it is alleged that a deadly weapon was used or exhibited during the commission of the offense. See Bell ,
In his brief on discretionary review, appellant reasserts his contention that this Court's decision in Bell establishes that deadly conduct is a lesser-included offense of aggravated assault under these circumstances because the proof necessary to establish deadly conduct is within the proof necessary to establish aggravated assault by the use or exhibition of a deadly weapon.
In its brief, the State challenges appellant's position by arguing that deadly conduct would require greater proof than the proof needed to establish aggravated assault as alleged in the indictment. In particular, the State contends that "deadly conduct requires a showing of actual imminent danger, while the indictment alleging ... aggravated assault required only evidence of exhibition of a deadly weapon's intended use." Given these differences, the State contends that the offenses are not functionally equivalent, and, thus, it maintains that the court of appeals correctly held that appellant was not entitled to the lesser-included-offense instruction. The State concedes that Bell would control if the indictment in appellant's case had alleged only the use of a deadly weapon. However, the State argues that, because the indictment alleged that appellant committed aggravated assault in a manner different from that alleged in Bell -that is, by using or exhibiting a deadly weapon- Bell does not establish that deadly conduct is a lesser-included offense of aggravated assault under these circumstances. The State maintains that this Court should limit the holding of Bell to situations involving the use of a deadly weapon in an aggravated assault case, rather than extending it to apply to the use or exhibition of a deadly weapon.
II. Analysis
We conclude that, as a matter of law, deadly conduct is a lesser-included offense of aggravated assault alleged by the use or exhibition of a motor vehicle as a deadly weapon. Although the elements of deadly conduct are not phrased identically to the elements of the greater offense as alleged here, the elements satisfy the functional-equivalence test for the first step of the lesser-included-offense analysis. We explain our conclusion by describing the applicable law for lesser-included offense instructions, and we then apply that law to the circumstances of this case.
A. Applicable Law for Lesser-Included-Offense Instructions
Whether a defendant is entitled to a jury instruction on a lesser-included offense involves a two-step analysis. Rice v. State ,
In conducting the first step of the analysis, we "compare the elements of the greater offense as pled to the statutory elements of the potential lesser-included offense in the abstract." See Ex parte Castillo ,
B. Application of the Law on Lesser-Included Offenses
Although the elements of deadly conduct are not identical to those in the charged offense of aggravated assault by use or exhibition of a deadly weapon, we conclude that the elements are functionally equivalent and thus satisfy the first step of the two-step analysis for lesser-included-offense instructions. We explain our reasoning by reviewing the statutory elements of the two offenses, discussing this Court's decision in Bell , and explaining why the Bell decision applies to the instant case.
1. Comparison of Elements of the Two Offenses *221A comparison of the language in appellant's indictment for aggravated assault to the elements of deadly conduct shows that, although they use different language to describe the prohibited conduct, the offenses are functionally equivalent. In the instant case, as charged in the indictment, appellant was alleged to have committed aggravated assault on a public servant by intentionally or knowingly threatening Officer Pearce with imminent bodily injury and by using or exhibiting a deadly weapon during the commission of the offense, namely, a motor vehicle that in the manner of its use or intended use was capable of causing death or serious bodily injury. TEX. PENAL CODE §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B), 1.07(a)(17)(B).
Examining the elements and descriptive averments in the charged offense of aggravated assault as compared to the elements of deadly conduct, we observe at the outset that the offenses employ different terminology. Whereas the charged offense requires proof that appellant threatened another with "imminent bodily injury" while using or exhibiting a motor vehicle as a deadly weapon, the offense of deadly conduct requires proof that the actor engaged in conduct that placed another in "imminent danger of serious bodily injury." The State maintains that these differences in terminology show that deadly conduct is not, as a matter of law, a lesser-included offense of aggravated assault as charged, but appellant argues that the elements are functionally equivalent because the proof required to establish aggravated assault as alleged here necessarily includes all the proof necessary to establish the elements of deadly conduct. To resolve this dispute, we next turn to this Court's holding in Bell .
2. This Court's Precedent in Bell v. State
Because the State has conceded that this Court's holding in Bell establishes that deadly conduct, as a matter of law, is a lesser-included offense of aggravated assault when it is alleged that the defendant used a deadly weapon, the sole question before this Court is whether that holding also applies under the circumstances of this case in which the aggravated-assault charge has alleged the use or exhibition of a motor vehicle as a deadly weapon. In Bell , this Court held that reckless conduct
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.
As our discussion in Bell indicates, when the threat of imminent bodily injury is accomplished by the use of a deadly weapon, the victim has by definition been exposed to the deadly character of the weapon and, as a result, placed in imminent danger of serious bodily injury. Thus, an allegation that the defendant committed aggravated assault by threatening another with imminent bodily injury while using a deadly weapon is functionally equivalent to engaging in conduct that places another imminent danger of serious bodily injury. See
3. Bell 's Analysis Applies to Aggravated Assault by Use or Exhibition of a Motor Vehicle as a Deadly Weapon
We conclude that Bell 's holding that deadly conduct is, as a matter of law, a lesser-included offense of aggravated assault by use of a deadly weapon also applies to the instant case in which it was alleged that appellant committed aggravated assault by using or exhibiting a motor vehicle as a deadly weapon.
Here, the aggravated assault charge required the State to prove that appellant threatened Officer Pearce with imminent bodily injury while using or exhibiting his motor vehicle as a deadly weapon, and therefore, the State's proof required evidence that, in the manner of its use or intended use, the motor vehicle was capable of causing death or serious bodily *223injury.
The State's principal argument in this case is that exhibiting a deadly weapon is fundamentally different from using it and, therefore, that the exhibition of a motor vehicle as a deadly weapon would not necessarily mean that a complainant was placed in actual imminent danger of serious bodily injury, as is required for deadly conduct. We are unpersuaded by the State's argument. The State mistakenly attempts to focus on a hypothetical scenario in which the exhibition of a motor vehicle would not amount to a determination that it was a deadly weapon due to circumstances showing that it was incapable of causing death or serious bodily injury. In contrast, here, the pleadings for aggravated assault would require proof that the exhibition of the motor vehicle made it capable of causing death or serious bodily injury. Given the requirement that the State's proof show that appellant's motor vehicle was a deadly weapon, the pleading distinction between the use or exhibition of the motor vehicle as a deadly weapon would not cause a different analysis under Bell .
Our conclusion that exhibiting a deadly weapon falls within the reasoning of Bell under the circumstances alleged in this pleading is supported by this Court's analysis in Patterson v. State ,
Each word is exemplary of different types of conduct. "Use," as a verb, may mean a number of things. For example, "use" is defined as "to put into action or service: have recourse to or enjoyment of: employ ... to carry out a purpose or action by means of; make instrumental to an end or process: apply to advantage: turn to account: utilize." In explicating the word the dictionary provides the following synonym: "employ, utilize, apply, avail: use is general and indicates putting to service of a thing, usu. for an intended or fit purpose ...."
"Exhibit," on the other hand, as a verb, is much more definitive in its meaning: "to present to view: show, display: as a. to show (as a feeling) or display (as a quality) outwardly, esp. by visible signs or actions."
We disagree with the court of appeals's reliance on the reasoning of the Seventh Court of Appeals in Miller v. State , which distinguished Bell based on the inclusion of "use or exhibit" language in the indictments. Safian ,
Based on the foregoing analysis, we conclude that, under the first step of the two-part lesser-included-offense analysis, as charged in this case, deadly conduct is a lesser-included offense of aggravated assault. See TEX. CODE CRIM. PROC . art 37.09(1) ; Hall ,
III. Conclusion
We conclude that deadly conduct, as a matter of law, is a lesser-included offense of the charged offense of aggravated assault by threat where it was alleged that appellant used or exhibited a motor vehicle as a deadly weapon. Because the court of appeals held otherwise, we reverse the judgment of the court of appeals and remand this case to that court for it to conduct the second step of the two-step lesser-included offense analysis.
See Tex. Penal Code § 22.02(a)(2), (b)(2)(B).
Although the court of appeals's decision references three cause numbers for each of appellant's three convictions, the ground for review that is before us on discretionary review concerns only cause number 02-15-00154-CR, which pertains to appellant's conviction for aggravated assault on a public servant.
This Court granted a single ground for review: "The court of appeals erred when it affirmed the trial court's denial of the lesser-included jury charge of deadly conduct in the trial for aggravated assault on a public servant."
Article 37.09 lists four circumstances in which an offense is a lesser-included offense. The instant case involves only the possibility described by Article 37.09(1). Tex. Code Crim. Proc . art. 37.09.
The instant case involves an allegation of a non-per se deadly weapon, as opposed to a per se deadly weapon. See Tex. Penal Code § 1.07(a)(17). A per se deadly weapon is defined as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury."Id. Because the instant case involves an allegation of a non-per se deadly weapon, a motor vehicle, we limit our analysis accordingly and do not expressly consider whether an allegation of use or exhibition of a per se deadly weapon, such as a firearm, would be encompassed within our holding today.
Reckless conduct was renamed deadly conduct in 1993, but the substantive elements remained unchanged. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 22.05, 1993 Tex. Sess. Law. Serv. 3586, 3623 (effective Sept. 1, 1994).
Tex. Penal Code §§ 22.02(a)(2), 1.07(a)(17)(B).
Donte Darnell Easter v. the State of Texas ( 2021 )
Donte Darnell Easter v. the State of Texas ( 2021 )
James Mark Jokel v. the State of Texas ( 2022 )
Alejandro Caballero v. the State of Texas ( 2021 )
Jamai Nicole Barron v. State ( 2021 )
James Craig Wiegand v. the State of Texas ( 2022 )
George, Anthony Rashad ( 2021 )
Eric Joshua Gustafson v. the State of Texas ( 2022 )
Brian Lee Velasquez v. the State of Texas ( 2021 )
Tammi Bleimeyer v. State ( 2021 )
David Ybarra Jr. v. State ( 2021 )
William Ray Trevino v. State ( 2020 )
William Ray Trevino v. State ( 2020 )
John Paul Layman v. the State of Texas ( 2021 )
Norris Paul Dixon v. the State of Texas ( 2023 )
Francisco Burgos, Jr. v. the State of Texas ( 2023 )
Cory Washington v. the State of Texas ( 2023 )
Tina Gabrielle Rendon v. the State of Texas ( 2023 )