IN THE
TENTH COURT OF APPEALS
No. 10-98-110-CR
ALPHA TIPPENS, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 87th District Court
Freestone County, Texas
Trial Court No. 97-120-CR
MEMORANDUM OPINION
On March 24, 1998, Alpha Tippens, Jr. pled guilty to the offense of forgery, and the court assessed an enhanced punishment of three years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice. See Tex. Pen. Code Ann. 32.21(d) (Vernon 1994). Tippens filed a notice of appeal on April 22, 1998. Tippens has now filed a motion to voluntarily dismiss his appeal.
The appellate rule governing voluntary dismissals in criminal appeals states:
At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk. . . .
Tex. R. App. P. 42.2(a).
We have not issued a decision in this appeal. The motion is signed by both Tippens and his attorney. Thus, the motion meets the requirements of the rules and is granted.
Tippens’ appeal is dismissed.
PER CURIAM
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Dismissed on appellant's motion
Opinion delivered and filed July 8, 1998
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es me over the back of my head. At the same time, he is hooking under my leg to try to pull me over some kind of way. I am trying to find out what is going on. I asked him what he was doing and why was he hitting on me. He did not make any reply, but continued to put his fists on the side of my face and started grabbing on my arm. Somehow, he was moving around me, twisting my coat and grabbing up around my neck. It was coming into a wrestling. I guess he was trying to wrestle me to the ground. I was trying to push away from him. He wrestled me to the ground. I saw his gun on my left hand side and I reach for the gun and picked it up and shot the gun twice. When I shoot the gun, all of a sudden he straightened himself up. The guy who was shot was laughing. I do not know what he did from there. I got off from the ground. I saw some people on the side. I throwed the gun to the ground and just remained there. After a second or so, the police had come up.
The court charged the jury on the lesser-included offenses of murder and voluntary manslaughter and on the defense of insanity. Appellant's points attack the court's denying his request for charges on the lesser-included offenses of aggravated assault and reckless conduct, as well as a charge on self-defense.
LESSER-INCLUDED OFFENSES
Appellant argues that his intent is the difference between a conviction for attempted capital murder or aggravated assault or reckless conduct. We agree in part and disagree in part.
In determining whether a jury must be instructed concerning a lesser-included offense, a two-step analysis must be applied. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. [Panel Op.] 1981) (on rehearing). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. Second, there must be some evidence in the record showing that, if the defendant is guilty, he is only guilty of the lesser offense. Id.; see also Moreno v. State, 702 S.W.2d 636, 640 (Tex. Crim. App. 1986).
Aggravated assault and reckless conduct are lesser-included offenses of attempted capital murder. Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986). Both, then, meet the first prong of the test. Id. We must determine if there is some evidence in the record showing that, if Appellant is guilty, he is only guilty of either of the lesser offenses.
aggravated assault
The elements of second-degree felony aggravated assault, as applied to these facts, are (1) a person, who (2) intentionally, knowingly, or recklessly (3) causes serious bodily injury to another (4) using a deadly weapon. See id.; Tex. Penal Code Ann. § 22.02 (Vernon Supp. 1991). The elements of reckless conduct are (1) a person, who (2) recklessly engages in conduct (3) that places another in imminent danger of serious bodily injury. Tex. Penal Code Ann. § 22.05 (Vernon 1989).
The State relies on Godsey for the proposition that the defendant's deliberate pointing of a gun at peace officers was evidence of his intent to kill. See Godsey, 719 S.W.2d at 584. Although it is true that the court said that Godsey's actions manifested only an intent to kill and did not evidence a mere threat, the court stressed that the effect of Godsey's position at trial was "I was not there so I could not intend to kill anyone." Id. at 584-85. If his position were accepted as true, Godsey would have been guilty of no offense. Id. at 584. The opinion points out that the statements by which Godsey attempted to negate intent to kill could not be considered in a vacuum, but must be considered in the context of the facts. Id. Thus, Godsey's statements to the effect that he could not have intended to kill because he was not there did not fit within the context of the other facts of the offense and could not amount to some evidence of the lesser offense. Id.
When we examine all of the evidence to determine in the context of the facts if the lesser-included offense was raised, the manner in which Carter approached Appellant, the scuffle which ensued, and Appellant's statement about the events lead us to the conclusion that there is some evidence that Appellant was guilty of only the offense of aggravated assault and that the jury should have been so charged. See id. We sustain point one.
reckless conduct
Reckless conduct may be a lesser-included offense of aggravated assault. See, e.g., Mullins v. State, 767 S.W.2d 166, 169 (Tex. App.—Houston [1st Dist.] 1988, no pet.). Here, the elements which would distinguish the offenses, i.e., actual serious bodily injury and use of a deadly weapon, are undisputed. The element of recklessness is common to both offenses. Thus, if Appellant is guilty of reckless conduct, he is also guilty of aggravated assault. See Tex. Penal Code Ann. §§ 22.02, 22.05 (Vernon Supp. 1991 and Vernon 1989). In the context of the facts presented, no charge on the lesser-included offense of reckless conduct was necessary. We overrule point two.
SELF-DEFENSE
Appellant complains that he was denied a charge on self-defense. Because we are reversing the judgment for failure to include the lesser-included offense of aggravated assault in the charge, we conclude that we should not decide this question. See Mullins, 767 S.W.2d at 169. The evidence is not well developed about the statutory or other justification which Carter may have had for arresting Appellant. Because the evidence on the issue of self-defense which will be presented at the new trial may not be identical to that presented at this trial, we deem it inappropriate to comment further on point three. See id.
We reverse the judgment and remand the cause for a new trial.
BILL VANCE
Justice
Before Chief Justice Thomas,
Justice Cummings and
Justice Vance
Reversed and remanded
Opinion delivered and filed January 8, 1992
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