IN THE
TENTH COURT OF APPEALS
No. 10-08-00160-CR
PAUL AMARO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court No. CR 07489
OPINION
A jury convicted Paul Amaro of aggravated assault on a public servant and
assessed his punishment at thirty-six years in prison. In two issues, Amaro challenges
the trial court’s failure to grant his requested jury instructions on (1) deadly conduct as
a lesser-included offense; and (2) the statutory defense of consent. We affirm.
FACTUAL BACKGROUND
When his former girlfriend Paula Jean Jones stopped answering his telephone
calls, Amaro left a message stating, “[T]his was real easy, all you had to do is answer
the phone.” While listening to this message, both Jones and her friend Billy Mahan
heard Amaro loading a shotgun in the background of the message. Mahan called
police. Officer Abel Rios arrived at Jones’s home and spoke to Amaro on the telephone
several times. In one conversation, Amaro stated that he was coming over and
something was going to happen. Amaro was belligerent and cursing. Rios advised
Amaro that he would be arrested at gunpoint if he came to the house.
As Amaro pulled into the driveway, Rios unholstered his weapon. He saw
Amaro pointing a rifle directly at him. Rios drew his weapon and ordered Amaro to
put the weapon down. Amaro was leaning toward the passenger window. Rios sought
cover. He then observed Amaro tracking him with the rifle. Amaro subsequently
began moving the rifle back and forth between his own chin and at Rios.
Other officers arrived at the scene and a standoff ensued. Rios heard Amaro
state that he wanted police to kill him, i.e., suicide by cop. Officer Kyle Matthews
observed Amaro place his vehicle in reverse several times, rev the engine, threaten to
leave, yell, say that he was not giving up, and say that he was not going back to prison.
Amaro was eventually arrested. Deputy Alan Kirkland recovered a 30-30 lever action
rifle from Amaro’s vehicle. The chamber contained one round and the hammer was
pulled back; the rifle was ready to fire. Kirkland removed five rounds from the rifle.
Amaro testified in his own defense. He claimed that he kept the rifle in his truck
because it was hunting season. He denied loading the rifle while leaving the message
for Jones, pointing the rifle at Rios, intentionally threatening Rios, or tracking Rios with
the rifle. He testified that Rios’s weapon was drawn before he had stopped his vehicle.
Amaro v. State Page 2
Rios told Amaro to exit the vehicle. Amaro stayed seated and told Rios to put away his
weapon. Amaro sat in his vehicle for a few minutes before showing the rifle to Rios and
stating, “I have one too.” Amaro placed the rifle in the seat, with the muzzle on the
dashboard. He claimed that he could not have pointed the rifle in the manner described
by Rios because he is of short stature, is left-handed, and would have had to adjust the
seat. He admitted placing the rifle to his chin because he had lost the “love of his life.”
INSTRUCTION ON DEADLY CONDUCT
In his first issue, Amaro challenges the denial of his request for a jury instruction
on deadly conduct as a lesser-included offense.
In determining whether to submit a lesser included charge, the court must
conclude that: (1) the requested charge is for a lesser-included offense of the charged
offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty of
only the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006);
Pierce v. State, 234 S.W.3d 265, 269 (Tex. App.—Waco 2007, pet. ref’d). We determine
the first issue from the pleadings. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.
2007); Pierce, 234 S.W.3d at 269. We must compare the statutory elements of the offense
as set out in the indictment to the elements of the requested lesser offense. See Hall, 225
S.W.3d at 535-36; Pierce, 234 S.W.3d at 269. This issue is a legal question and does not
depend on the evidence presented at trial. See Hall, 225 S.W.3d at 535; Pierce, 234 S.W.3d
at 269. If the first requirement is met, we determine the second issue by reviewing the
evidence to determine if there is any evidence that, if Amaro is guilty, he is guilty of
only the lesser offense. See Hall, 225 S.W.3d at 536; Pierce, 234 S.W.3d at 269.
Amaro v. State Page 3
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. TEX. CODE
CRIM. PROC. ANN. art. 37.09 (Vernon 2006).
The indictment alleges the following statutory elements of aggravated assault on
a public servant: (1) Amaro; (2) intentionally or knowingly; (3) threatened Rios with
imminent bodily injury; (4) while exhibiting a deadly weapon; and (5) knew that Rios
was a public servant lawfully discharging an official duty. See TEX. PEN. CODE ANN. §§
22.01(a)(2), 22.02(a)(2), (b)(2)(B), (c) (Vernon Supp. 2008). The statutory elements of
deadly conduct are: (1) a person (2) recklessly (3) engages in conduct that places another
in imminent danger of serious bodily injury. TEX. PEN. CODE ANN. § 22.05(a) (Vernon
2003). Recklessness and danger are presumed if the actor knowingly pointed a firearm
at or in the direction of another. Id. at § 22.05(c).
Amaro cites Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985) and Isaac v. State,
167 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) for the proposition
that deadly conduct is a lesser-included offense of aggravated assault under the
circumstances of this case.
Amaro v. State Page 4
In Bell, the Court of Criminal Appeals found reckless conduct1 to be a lesser-
included offense of aggravated assault by use of a deadly weapon under article 39.07(1)
“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:”
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.
Bell, 693 S.W.2d at 438-39. Following Bell, Isaac also held that deadly conduct is a lesser-
included offense of aggravated assault. See Isaac, 167 S.W.3d at 474-45.
The State distinguishes Bell and Isaac on grounds that neither involved
aggravated assault on a public servant. However, deadly conduct can be a lesser-
included offense if it is established by proof of the same or less than all the facts required
to establish aggravated assault on a public servant. TEX. CODE CRIM. PROC. ANN. art.
37.09(1). The reasoning of Bell and Isaac applies.
Citing Miller v. State, 86 S.W.3d 663 (Tex. App.—Amarillo 2002, pet. ref’d), the
State further distinguishes Bell, where the indictment alleged use of a deadly weapon,
and Isaac, where the indictment alleged use and exhibition, from the present case, where
1 Reckless conduct is the statutory predecessor to deadly conduct. See Act of May 24, 1973, 63d
Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 920 (amended 1993) (current version at TEX. PEN. CODE
ANN. § 22.05 (Vernon 2003)).
Amaro v. State Page 5
the indictment alleged only exhibition. In Miller, the Amarillo Court held that deadly
conduct is not a lesser-included offense of aggravated assault on a public servant:
Whereas the indictment in Bell charged the defendant in that case 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 “used.”
Miller, 86 S.W.3d at 666-67 (emphasis added).
Miller suggests that a person cannot be placed in imminent danger of serious
bodily injury by mere exhibition of a deadly weapon. See id. However, merely pointing
a firearm in another’s direction can place that person in imminent danger of serious
bodily injury. See TEX. PEN. CODE ANN § 22.05(c); see also Hayes v. State, No. 05-06-00980-
CR, 2008 Tex. App. LEXIS 557, at *1-2, 6 (Tex. App.—Dallas Jan. 25, 2008, no pet.) (not
designated for publication) (Evidence supported deadly conduct where defendant
pointed a firearm at or in the direction of the complainant); Brown v. State, No. 02-03-
00289-CR, 2004 Tex. App. LEXIS 8048, at *11-15 (Tex. App.—Fort Worth Aug. 30, 2004,
no pet.) (not designated for publication) (Evidence supported deadly conduct where
defendant pointed a semiautomatic firearm at or in the direction of the complainant).
Pointing a weapon at another also constitutes exhibition. See Coleman v. State, 145
S.W.3d 649, 652 (Tex. Crim. App. 2004) (Exhibition “requires a weapon to be
‘consciously shown, displayed, or presented to be viewed.’”); see also see Morales v. State,
Amaro v. State Page 6
No. 11-03-00087-CR, 2004 Tex. App. LEXIS 3602, at *8 (Tex. App.—Eastland Apr. 22,
2004, pet. ref’d) (not designated for publication) (Evidence supported aggravated
assault on a public servant where defendant “intentionally and knowingly threatened
both officers with imminent bodily injury when he pointed his gun at them.”). We do
not agree that danger of serious bodily injury can be established only by use of a deadly
weapon, but not exhibition of a deadly weapon.
Following Bell, we hold that deadly conduct is a lesser-included offense of
aggravated assault on a public servant under the circumstances of this case because it is
established by proof of the same facts required to establish the commission of
aggravated assault on a public servant by exhibiting a deadly weapon. See Bell, 693
S.W.2d at 438-39; see also Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006) (“If
as here, the prosecution, in proving the elements of one charged offense, also necessarily
proves another charged offense, then that other offense is a lesser-included offense.”);
TEX. CODE CRIM. PROC. ANN. art. 37.09(1).
Under step two of the analysis, Amaro is entitled to a deadly conduct instruction
if “‘there is some evidence in the record that would permit a jury rationally to find that
if the defendant is guilty, he is guilty only of the lesser-included offense.’” Hall, 225
S.W.3d at 536 (emphasis added). “[A]nything more than a scintilla of evidence may be
sufficient to entitle a defendant to a lesser charge.” Id. “[T]he evidence must establish
the lesser-included offense as ‘a valid, rational alternative to the charged offense.’” Id.
Amaro contends that the record contains some evidence that he did not intend to
threaten Rios, but recklessly engaged in conduct that placed Rios in imminent danger of
Amaro v. State Page 7
serious bodily injury. In so arguing, he points to Rios’s testimony that the rifle was
pointed “at me or in my general direction.” He also points to his own testimony in which
he denied pointing the rifle at Rios or intentionally threatening Rios and explained
showing the rifle to Rios only after Rios drew his weapon, placing the rifle in the front
seat, and coming to the house with the sole intent of discussing some issues with Jones.
The record, however, supports intentional and knowing conduct, not
recklessness. See TEX. PEN. CODE ANN. § 6.03(a) (Vernon 2003) (A person acts
intentionally when it is his conscious objective or desire to engage in the conduct or
cause the result.”); see also id. at § 6.03(b) (“A person acts knowingly when he is aware of
the nature of his conduct or that the circumstances exist.”); Id. at § 6.03(c) (“A person
acts recklessly when he is aware of but consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the result will occur.”). Amaro had
threatened that something was going to happen and was heard loading the rifle. True
to his word, Amaro arrived at the home with a loaded rifle, even though he had been
warned that Rios was armed. Rios’s testimony that Amaro pointed the rifle directly at
him or in his general direction supports aggravated assault. See St. Clair v. State, 26
S.W.3d 89, 97 (Tex. App.—Waco 2000, pet. ref’d) (Defendant threatened officer with
imminent bodily injury by aiming a vehicle in his direction); see also Robbins v. State, 145
S.W.3d 306, 314 (Tex. App.—El Paso 2004, pet. ref’d) (Evidence that defendant fired a
gun in the officer’s direction established aggravated assault). In fact, the jury certainly
could have questioned why the rifle was cocked and ready to fire.
Amaro v. State Page 8
Relying on Issac, Amaro maintains that his testimony is sufficient to raise the
issue of deadly conduct. In Isaac, the defendant admitted bringing a gun to his father's
barber shop, but claimed that he intended to merely scare his family and then kill
himself. See Isaac, 167 S.W.3d at 475. He denied pointing the gun at anyone and
testified that the gun discharged only after he was tackled by his stepbrother. Id. Isaac
admitted acting “foolishly,” but denied intending to hurt anyone other than himself. Id.
The Fourteenth Court held that Isaac’s testimony “provided some evidence from which
a jury could rationally find that, although [he] never intended to threaten his family
with imminent bodily injury (a necessary element of aggravated assault), he did
recklessly engage in conduct that placed his family in danger of serious bodily injury
(as required to prove deadly conduct).” Id.
This conclusion, however, conflicts with the Court of Criminal Appeals’s holding
that “[a] defendant’s own testimony that he committed no offense, or testimony which
otherwise shows that no offense occurred at all, is not adequate to raise the issue of a
lesser-included offense.” Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
Amaro’s testimony is not evidence that he is guilty of only deadly conduct. See id.; see
also Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (“If a defendant either
presents evidence that he committed no offense or presents no evidence, and there is no
evidence otherwise showing he is guilty only of a lesser included offense, then a charge on a
lesser included offense is not required.”); Morales, 2004 Tex. App. LEXIS 3602, at *12 (“If
the jury had believed appellant’s testimony that he did not point his gun at the officers,
he would not have been guilty of either ‘deadly conduct’ or ‘aggravated assault.’”). The
Amaro v. State Page 9
record contains no other evidence showing that Amaro is guilty only of deadly conduct.
See Hall, 225 S.W.3d at 536; see also Pierce, 234 S.W.3d at 269.
In summary, because the second prong is not met, we conclude that Amaro was
not entitled to an instruction on deadly conduct. See Guzman, 188 S.W.3d at 188; see also
Pierce, 234 S.W.3d at 269. We overrule his first issue.
DEFENSIVE INSTRUCTION
In his second issue, Amaro contends that he was entitled to an instruction on the
defense of consent because, as a police officer, Rios “knew the conduct was a risk of his
occupation” and knew that Amaro believed that Rios consented to the conduct.
The victim’s effective consent or the actor’s reasonable belief that the victim
consented to the actor’s conduct is a defense to aggravated assault if the victim knew
the conduct was a risk of his occupation. TEX. PEN. CODE ANN. § 22.06(a)(2)(A) (Vernon
Supp. 2008). Amaro points to Rios’s testimony that he heard Amaro’s vehicle
approaching, was familiar with the risks of being a police officer, such as someone
pointing a gun at him, was wearing a ballistic vest, warned Amaro that he would be
arrested at gunpoint, and had unholstered his weapon upon Amaro’s arrival.
Two courts have addressed section 22.06 in the context of public servants. In
Tanksley v. State, 656 S.W.2d 194 (Tex. Civ. App.—Austin 1983, no writ), Tanksley was
charged with aggravated assault by threatening to stab a jailer in the eye. See Tanksley,
656 S.W.2d at 195. The trial court denied Tanksley’s request for an instruction that the
jailer knew Tanksley’s conduct was a risk of his occupation, “‘by the nature of the
Amaro v. State Page 10
jailer’s employment he consented as a matter of law to any assault as a risk of his
occupation.’” Id. The Austin Court held:
There is no evidence that the jailer consented in fact to appellant’s
conduct, whether by express words or by other means indicating an
apparent consent. The provisions of § 22.06 quoted above do not define
effective consent to mean engaging in an occupation having a risk of
assault, as appellant apparently contends. Rather, the victim’s express or
apparent assent to an accused’s conduct is effective as a defense if the
victim knew that such conduct was a risk of his occupation. There being
no assent by the jailer to the conduct of appellant in the present case, §
22.06 was not applicable and appellant was not entitled to a requested
instruction thereunder. Appellant does not contend that he reasonably
believed the jailer consented to the assault.
Id. at 196-97.
In Camp v. State, 13 S.W.3d 805 (Tex. App.—Eastland 2000, no pet.), the trial court
denied Camp’s request for an instruction that “it is a defense to a prosecution for
aggravated assault of a public servant that the victim of the aggravated assault
effectively consented to the actions of the defendant, or that the defendant reasonably
believed that the victim had consented to his actions.” Camp, 13 S.W.3d at 807. The
Eastland Court held:
We agree with the holding in Tanksley that Section 22.06 should not be
read to define “effective consent to mean engaging in an occupation
having a risk of assault.” This would not be consistent with other
provisions of the Penal Code which protect public servants who are
discharging their official duties. We note that the opinion in Tanksley
agreed that the public servant’s “express or apparent consent” would
have been effective as a defense if he knew that such conduct was a risk of
his occupation. As in Tanksley, there was no “express or apparent
consent” by the public servants to appellant’s conduct in trying to ram
their vehicles; consequently, it does not matter if they knew that such
conduct was a risk of their occupation.
Amaro v. State Page 11
Each of the officers testified that they did not give “express consent” to
appellant’s conduct, and there is no proof of “apparent consent” because
there is no showing that appellant had a reasonable belief that the officers
gave their consent to his conduct.
Id. at 807.
We agree with Tanksley and Camp that “Section 22.06 should not be read to define
‘effective consent to mean engaging in an occupation having a risk of assault.’” Id; see
Tanksley, 656 S.W.2d at 196-97. Neither does the record contain any evidence suggesting
that Rios consented to Amaro’s conduct or that Amaro had a reasonable belief that Rios
consented to his conduct. We overrule issue two.
The judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed May 6, 2009
Publish
[CRPM]
Amaro v. State Page 12