                                  NO. 07-07-0317-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                               SEPTEMBER 8, 2008
                         ______________________________

                                   SAMMY SALAZ,

                                                             Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2007-414,821; HON. JIM BOB DARNELL, PRESIDING
                       _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Appellant, Sammy Salaz, attacks his conviction for aggravated assault through two

issues. He contends that the trial court erred in overruling his 1) request for a jury

instruction on the supposed lesser-included offense of deadly conduct, and 2) objection

to evidence of an extraneous bad act. We affirm the conviction.

      Background

      The victim, Joshua Yelvington, went to the residence of appellant in the early

morning hours to confront his former girlfriend Misti Campo. Yelvington, who was carrying
a bat at the time, knocked on the window of appellant’s bedroom, and identified himself for

Misti. She came to the door, and the two began to argue. There is no evidence that

Yelvington ever used or threatened to use the bat. Nonetheless, appellant eventually

came out the front door with a gun in his hand. When Yelvington saw the gun, he took

several steps backward and then turned around and began to walk toward the vehicle in

which he had arrived. Yelvington then heard appellant say, “You fucked up white boy,” felt

a “touch” on the back of his head, heard a bang, and saw a flash. Two of Yelvington’s

friends took him to the hospital where he was diagnosed as having a gunshot wound to the

head.

        Issue 1 - Instruction on Lesser-Included Offense

        Appellant argues in his first issue that the court should have submitted an instruction

on the purportedly lesser-included offense of deadly conduct. We disagree and overrule

the issue.

        To be entitled to an instruction on a lesser-included offense, some evidence must

show, among other things, that if the accused is guilty, he is guilty only of the lesser

offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Here,

appellant was charged, via the indictment, with aggravated assault. The indictment read

that he “intentionally, knowingly, and recklessly cause[d] bodily injury to JOSHUA

YELVINGTON, by shooting . . . [him] with a deadly weapon, and did then and there use a

deadly weapon, to wit: a firearm . . . .” Like assault, the crime of deadly conduct also

includes a mens rea of recklessness. TEX . PEN . CODE ANN . §22.05(a) (Vernon 2003). And,

one commits that crime if, with the requisite mental state, he engages in conduct that

places another in imminent danger of serious bodily injury. Id.

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        That appellant placed a handgun next to Yelvington’s head is undisputed, as is the

fact that the firearm discharged when it was so located. Appellant, however, contends that

because there was some evidence that the wound suffered was caused by Yelvington

being struck by the body of the handgun as opposed to the bullet emanating from it, he

was entitled to the instruction at issue. We disagree with that contention and will explain

why. Assuming arguendo that showing the wound was caused by striking the victim with

the firearm itself could render the crime nothing more than deadly conduct, we note that

appellant cites us to no evidence indicating that using the weapon as a club could cause

the type of wound suffered by Yelvington. Moreover, the wound was located at the center

“occipital region” of his head, or as the police officer confirmed, the rear base of the skull.

To the extent that several witnesses testified that appellant struck his victim with the gun,

they described it as hitting Yelvington “over the head” or on the “side” of the head, not on

the back of the skull.1 So, unless we assume evidence not before us, and ignore the

medical testimony diagnosing the injury as a “[g]unshot wound to the head,” we find no

legitimate basis supporting appellant’s contention. That is, we are unable to conclude that

the wound was caused by being struck with the gun itself, as opposed to being shot, and

the record failed to illustrate that if appellant did anything, it was only deadly conduct (i.e.

simply striking appellant with the gun).




        1
         Yelvington him self testified that appellant “touched” the back of his skull with the handgun before
hearing the gun shot several seconds later. The touch was described as light, and again, we were cited to
no evidence suggesting that a touch can result in a centim eter head wound.

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       Issue 2 - Extraneous Offense

       Next, appellant complains of the trial court’s failure to sustain his objection to

testimony of an extraneous bad act. That act consisted of his offering a witness drugs in

exchange for a ride about a month before shooting Yelvington. We overrule the issue.

       Assuming arguendo that the trial court erred, we find the error harmless. This is so

because the matter of drugs was interjected into the trial elsewhere without objection.

Indeed, many of the witnesses were accused of being involved with narcotics at one time

or another. So, it is rather difficult to say that appellant was singled out or exposed to more

limelight by the accusation. To this, we add evidence (also before the jury) that 1)

appellant had a criminal record and had been imprisoned, 2) uncontroverted medical

testimony depicting the wound as being caused by a gun shot, and 3) the uncontested

testimony about appellant placing a firearm next to Yelvington’s head and pulling the

trigger. Simply put, we cannot conclude from the record before us that any substantial right

of appellant was jeopardized or affected by the admission of the testimony.

       Having overruled each issue, we affirm the judgment of the trial court.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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