NUMBER 13-02-565-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THOMAS CLAY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court of Nueces County, Texas.
CONCURRING OPINION
Before Justices Hinojosa, Yañez, and Castillo
Concurring Opinion by Justice Yañez
The majority holds that the trial court erred in including a charge on the misdemeanor offense of reckless deadly conduct, (1) but concludes that appellant: (1) invited the error; and (2) failed to show he was egregiously harmed by it. Although I concur in the result reached by the majority, I write separately because I would hold the trial court did not err in submitting the charge for the lesser-included offense of reckless deadly conduct.
As the majority notes, the court of criminal appeals has held that before an instruction on a lesser-included offense is warranted, the following test must be satisfied: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist 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. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (citing Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993)).
The majority reasons that under the evidence presented, reckless deadly conduct is not a lesser-included offense of aggravated assault because there is no evidence Clay "waved a firearm" at Henderson. It further reasons that reckless deadly conduct cannot be a lesser-included offense of aggravated assault because doing so requires the State to prove Clay "waved a firearm," an additional matter the State was not required to prove under the indicted offense. As the majority notes, a lesser-included offense must be established by less or the same proof, not additional matters not alleged. Douglas v. State, 915 S.W.2d 166, 169 (Tex. App.-Corpus Christi 1996, no pet.).
At the charge conference, Clay's counsel argued in favor of the reckless deadly conduct instruction as follows:
[Clay's counsel]: Well, if the jury is prone to believe that [Clay] provoked Mr. Henderson into this gun play, well, then, certainly the jury could believe that he recklessly engaged in some type of conduct that placed Mr. Henderson in imminent danger of serious bodily injury.
A short while later, the trial court responds:
[Court]: If the Defendant's witnesses are to be believed most favorably to the Defendant, then there is evidence that the Defendant waved a gun at the victim and that the victim went to a garage and shot himself. Under those circumstances, it would be appropriate to submit the misdemeanor charge of deadly conduct, and I will do so.
I conclude that Henderson's testimony that he saw a gun over Clay's shoulder is sufficient evidence to support the lesser-included charge of reckless deadly conduct. Considering all the trial evidence, I would hold that there is more than a scintilla of evidence to support the lesser-included charge that Clay engaged in conduct that placed Henderson in imminent danger of serious bodily injury by "waving a firearm" at him. As the trial court noted, viewing the evidence most favorably to Clay, the jury could have reasonably believed that Clay engaged in conduct that provoked the confrontation by displaying, brandishing, or "waving" a gun at Henderson, but that Henderson shot himself. Accordingly, I would hold that the trial court did not err in submitting the charge on the lesser-included offense of reckless deadly conduct.
LINDA REYNA YAÑEZ
Justice
Do not publish. Tex. R. App. P. 47.2(b).
Concurring opinion delivered and filed this the
15th day of July, 2004.
1.