








IN THE
TENTH COURT OF APPEALS
 

No. 10-00-145-CR

Â Â Â Â Â JAY JONATHAN BENJAMIN,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â v.

Â Â Â Â Â THE STATE OF TEXAS,
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
 

From the 292nd District Court
Dallas County, Texas
Trial Court # F99-02580-JV
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 
O P I N I O N
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â Appellant Jay Jonathan Benjamin was convicted by a jury of the offense of criminally
negligent homicide in connection with the death of a Dallas area motorist in an auto accident. See
Tex. Penal Code Ann. Â§ 19.05 (Vernon 1994).  The accident occurred at a traffic intersection
when a vehicle driven by appellant, who was speeding, collided with a vehicle driven by the
deceased, who ran a stop sign.  The joint nature of the responsibility for the collision provided for
a hotly contested trial.  The jury ultimately found appellant not guilty of the charged offense of
manslaughter, but instead convicted him of the lesser-included offense of criminally negligent
homicide.  The sole issue presented on appeal is whether the trial court erred in failing to
additionally instruct the jury on the offense of deadly conduct, an offense appellant contends was
a lesser-included offense raised by the evidence.  Because controlling case authority requires us
to do so, we will affirm.
Â Â Â Â Â Â A review of the circumstances leading to the victimâs death is necessary.  On April 21, 1998,
George Carter, driving his Ford Taurus, disregarded a stop sign at the intersection of Buckingham
Rd. and Abrams Rd. and proceeded into the path of a Honda Prelude driven by appellant.  A
witness saw appellant, who was exceeding the 35 m.p.h. speed limit, break hard and veer in an
attempt to avoid the collision; however, appellantâs vehicle struck Carterâs vehicle in the area of
its driverâs side door.  Carter died from the injuries he received.  The contested issue at trial
concerned appellantâs speed at the time he approached the intersection.  The State presented
evidence that appellant was traveling at a minimum of 79 m.p.h. prior to braking, and that the
minimum speed at impact was 68 m.p.h..  An accident reconstruction expert testifying for
appellant calculated his speed at 65 m.p.h. prior to braking, and 45 m.p.h. at impact.  Both parties
agree that, under either scenario, appellant was traveling well in excess of the speed limit at the
time he entered the intersection.  The police traffic investigator admitted that the person most at
fault in the collision was Carter, and there was evidence that even had appellant been traveling at
the posted 35 m.p.h. speed limit Carter would likely not have survived the accident.
Â Â Â Â Â Â The trial court included in its jury instructions an abstract paragraph and an application
paragraph on concurrent causation.  The instructions permitted the jury to consider verdicts for
the offenses of manslaughter and its lesser-included offense, criminally negligent homicide.  The
instructions also requested the jury to determine the special issue of whether appellant used his car
as a deadly weapon during the commission of the offense.  The jury returned a verdict of âguiltyâ
to the offense of criminally negligent homicide, but found that appellant âdid notâ use his car as
a deadly weapon.
Â Â Â Â Â Â The trial court denied appellantâs request for a jury instruction on the offense of deadly
conduct:
Deadly Conduct.  (a) A person commits an offense if he recklessly engages in
conduct that places another in imminent danger of serious bodily injury.

.   .   .
Â 
(e) An offense under Subsection (a) is a Class A misdemeanor.

Tex. Penal Code Ann. Â§ 22.05 (Vernon 1994).

Â Â Â Â Â Â Appellant contends the trial court erred in refusing to provide the requested instruction
because deadly conduct is a lesser-included offense of manslaughter and was raised by the
evidence.  Manslaughter is a second degree felony:
Manslaughter.  (a) A person commits an offense if he recklessly causes the death of
an individual.

Tex. Penal Code Ann. Â§ 19.04 (Vernon 1994).

Â Â Â Â Â Â The Texas legislature has provided four ways an offense may qualify as a lesser-included
offense:
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;
Â 
(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;
Â 
(3) it differs from the offense charged only in the respect that a less culpable mental
state suffices to establish its commission; or
Â 
(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 1981).

Â Â Â Â Â Â Appellant contends his requested instruction on deadly conduct meets this test.  The State
counters that deadly conduct is, in fact, not a lesser-included offense because it contains two
elements not required for manslaughter: (1) conduct; that (2) places another in imminent danger
of serious bodily injury.  We do not agree.  The fact the manslaughter statute does not explicitly
require that the defendant engage in âconduct,â while the deadly conduct statute does, is of no
legal significance because it is difficult, if not impossible, to construct a scenario in which a person
could commit the offense of manslaughter without engaging in âconduct.â  The other dissimilar
element noted by the Stateâdeadly conductâs requirement of evidence that the defendant place
another in âimminent danger of serious bodily injuryââis also inconsequential.  Art. 37.09 (2)
provides that an offense constitutes a lesser-included offense if it differs from the offense charged
only in the respect that a less serious injury or risk of injury suffices to establish its commission. 
Placing another in imminent danger of serious bodily injury is a less serious injury than death. 
Therefore, deadly conduct would appear to constitute a lesser-included offense to manslaughter
under our facts.  Nevertheless, we cannot overlook the existence of controlling authority
supporting the Stateâs alternative argument that the jury could not have convicted appellant of
deadly conduct because that offense is reserved for defendants whose victims are not injured.  In
Gallegos v. State, the Texas Court of Criminal Appeals held that an offense under Penal Code
Section 22.05 âapplies to those acts that fall short of injuring another.â  Gallegos v. State, 548
S.W.2d 50, 50 (Tex. Crim. App. 1977) (emphasis in original).  Although Gallegos is only a
commissionerâs decision, the rule we follow here has never been abrogated by subsequent
authority.  In the subsequent case of Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985), the
Court of Criminal Appeals did criticize another aspect of the Gallegos opinion.  In Gallegos, the
Court ruled that the offense of reckless conduct is a lesser included offense to assault.
  In Bell,
the court ruled this statement in Gallegos was âoverbroad and mere dictum.â  Id. at 436. 
Arguably, the ruling in Gallegos that we follow today is also overbroad.  Under circumstances
where the evidence shows both the victim and the defendant engaged in conduct resulting in the
victimâs injuries, it would seem preferable that the trier of fact be authorized to consider whether
a defendant charged with manslaughter is guilty of only the lesser offense of deadly conduct. 
However, until such a time as the Court of Criminal Appeals specifically overturns its ruling in
Gallegos, we will continue to enforce its rule that a defendant may be convicted of deadly conduct
only where the defendantâs acts fall short of injuring another.  Point one is overruled.
Â Â Â Â Â Â The trial courtâs judgment is affirmed.

Â 
DAVID L. RICHARDS
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice
Â 
BeforeÂ Chief Justice Davis,
Â Â Â Â Â Â Â Â Â Â Justice Gray, and
Â Â Â Â Â Â Â Â Â Â Justice Richards (Sitting by Assignment)
Affirmed 
Opinion delivered and filed January 30, 2002
Publish
[CR25]

ont-weight:normal'>discretionary
review.  Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex.
Crim. App. 2006); Villanueva v. State, 209 S.W.3d 239, 249 (Tex. App.ÂWaco
2006, no pet.).Â  We grant counselÂs motion to withdraw, effective
upon counselÂs compliance with the aforementioned notification requirement as
evidenced by Âa letter [to this Court] certifying his compliance.ÂÂ  See Tex. R.
App. P. 48.4.
Â 
Â 
FELIPE REYNA
Justice
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
(Chief
Justice Gray concurring with note)*
Affirmed
Opinion
delivered and filed November 4, 2009
Do not publish
[CR25]
Â 
*Â Â Â Â Â Â Â Â Â Â  (Chief
Justice Gray concurs in the judgment of the Court only to the extent it affirms
the trial courtÂs judgment.Â  A separate opinion will not issue.)



[1] Â Â Â Â Â Â Â Â Â Â Â Â Â  Specifically, appellate
counsel states that community supervision was revoked one day before the
probationary term expired.Â  However, even though the judgment was not filed of
record until August 22, 2003, the term of community supervision began on August
11, 2003 when the trial court orally pronounced sentence and ended on August 10,
2008.Â  See Nesbit v. State, 227 S.W.3d 64, 69 (Tex. Crim. App. 2007).Â  The
revocation hearing was held on August 21, 2008, eleven days after the term
expired.Â Â Â  Â Â 


[2] Â Â Â Â Â Â Â Â Â Â Â Â Â  Poe testified that other
passengers were in the vehicle.Â  However, in a revocation hearing, the trial court is
the sole judge
of the credibility of the witnesses and the weight to give their
testimony.Â  See Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim.
App. 1981); see also Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.ÂEastland
2008, pet. refÂd).
Â 


