Opinion by: Alma L. López, Justice
Sitting: Phil Hardberger, Chief Justice
Tom Rickhoff, Justice
Alma L. López, Justice
Delivered and Filed: November 10, 1999
AFFIRMED
Erik Guerra appeals his conviction for aggravated assault. Guerra was charged by indictment with committing the offense by shooting Guillermo Flores with a firearm during a drive-by shooting. At trial, Guerra requested a jury instruction on the lesser included offense of deadly conduct, but the trial judge denied the request. In his only issue on appeal, Guerra contends that the trial court erred by denying his request and that he is now entitled to a new trial.
Charge error is reviewed using the standard set out in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g). Under Almanza, an error that was timely objected to at trial will require reversal if the error is calculated to injure the rights of the defendant, meaning that no more than some harm must have occurred to the defendant. Arline v. State, 721 S.W.2d 348, 351-52 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 171. In the instant case, Guerra timely objected to the denial of the requested instruction; thus, we will reverse if the trial court was required to instruct the jury on deadly conduct and the failure to do so resulted in some harm to Guerra.
A two-part test exists for determining whether a jury charge must include an instruction on a lesser included offense: First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, some evidence must exist in the record that would permit the jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense, and not of the greater offense. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). Because deadly conduct is a lesser included offense of aggravated assault,(2) we need only determine whether the record contains evidence that Guerra is guilty only of deadly conduct to ascertain whether the trial judge erred.
After reviewing the record, we conclude that nothing in the record indicates that Guerra was guilty only of deadly conduct. A person commits the offense of deadly conduct if he recklessly engages in conduct that places another person in imminent danger of serious bodily injury; or if he knowingly discharges a firearm at or in the direction of one or more individuals, or at a habitation, building, or vehicle and is reckless about whether the habitation, building, or vehicle is occupied. Tex. Pen. Code § 22.05(a), (b) (Vernon 1994). Certainly, the evidence in this case indicates that Guerra was guilty of deadly conduct; however, the evidence does not indicate that he was guilty of only deadly conduct. Instead, the evidence clearly supports Guerra's guilt of aggravated assault.
To commit aggravated assault, a person must intentionally, knowingly, or recklessly cause serious bodily injury to another person, or use or exhibit a deadly weapon during the commission of an assault. Id. § 22.02. To commit an assault, a person intentionally, knowingly, or recklessly causes bodily injury to another person or threatens another with imminent bodily harm. Id. § 22.01. In the instant case, ample evidence exists that Guerra committed an aggravated assault by intentionally causing serious bodily injury to Guillermo Flores, and by using a deadly weapon to cause bodily injury to Flores.
Specifically, Flores testified that upon exiting an Auto Zone store, he heard someone yell, "Bitch." Knowing that the comment referred to him, Flores turned around to see Guerra and Gabriel Navarro in Guerra's truck. At that moment, he observed Navarro, who was driving the truck, shoot him once with a black gun. Having been hit, he looked down at his leg, and then turned again to observe Guerra fire multiple shots at him with a chrome gun. Flores was struck again, this time in the buttocks. Flores further testified about the seriousness of his resulting wounds and about his subsequent disabilities. As to Guerra's motivation for shooting him, Flores explained that both he and Guerra had been members of the "Ambrose" gang. He described how he (Flores) had been "exed" out of the gang, and that Guerra had told him that he (Flores) had put him (Guerra) on the cross, and that as a result, he (Flores) had to die.
Flores's testimony was supported by the testimony of Officer Alfred Valdez. Officer Valdez was in the vicinity of the Auto Zone store when he heard the gunshots. He reached the store within two to three minutes after the shots were fired. He discovered Flores on the ground, bleeding from his wounds. Valdez questioned Flores about what had occurred and Flores stated that Erik Guerra had shot him. As to Guerra's motivation for the assault, Tom Zaldivar, an adult probation officer assigned to the gang unit, testified that Guerra had told him prior to the shooting that he (Guerra) would fight Flores upon sight.
Because this testimony indicates that Guerra was guilty of committing the offense of aggravated assault, Guerra was not entitled to a jury instruction on deadly conduct. See Rousseau, 855 S.W.2d at 673. Thus, the trial judge did not err by denying his request for the instruction. As a result, we overrule Guerra's issue on appeal and affirm the judgment of the trial court.
Alma L. López, Justice
DO NOT PUBLISH
1. The Honorable W.E. Bachus presided over the trial.
2. See Bell v. State, 693 S.W.2d 434, 437-39 (Tex. Crim. App. 1985); Guzman v. State, 988 S.W.2d 884, 885 (Tex. App.--Corpus Christi 1999, no pet.).