
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00174-CR


James Allen Harris, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 09-147-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		James Allen Harris was convicted of two counts of aggravated assault after he
crashed his truck into two other vehicles, injuring two people.  See Tex. Penal Code Ann. § 22.02(a)
(West 2011).  During trial, Harris asked the court to instruct the jury that it could convict him of
the lesser-included offense of deadly conduct.  See id. § 22.05(a) (West 2011).  The court refused.
On appeal, Harris argues that the trial court erred by refusing his request.  We affirm the conviction.

FACTUAL AND PROCEDURAL BACKGROUND
		On February 2, 2008, Harris crashed his truck into two other vehicles on Highway 183
in Williamson County. Deputy Sheriff Christopher Cox witnessed the crash. After aiding the
occupants of one of the vehicles Harris hit, Cox found Harris walking on the highway looking
"very lethargic" or "confused" as though he was suffering from a "severe medical condition or
an intoxication."  After the collisions Harris was taken to a hospital, where he tested positive for
Valium and Soma, two central-nervous-system depressants.
		The State initially charged Harris with two counts of intoxicated assault and two
counts of aggravated assault (one for each of the people whom Harris seriously injured), but before
trial it dropped the intoxicated assault charges.  The parties proceeded to trial.  The State called four
witnesses who testified to seeing Harris driving recklessly before the collisions.  Three of these
witnesses also saw the actual collisions.  Ernestina and Jose Segovia, who were in the second vehicle
that Harris hit, testified that they suffered serious injuries as a result of the collision.
		During the jury-charge conference, Harris asked the court to instruct the jury that
it could convict him of the lesser-included offense of deadly conduct.  To support this request he
argued that deadly conduct is included within the proof necessary to establish aggravated assault.
The State conceded that point but argued that a lesser-included-offense instruction was nevertheless
inappropriate because, given the undisputed evidence that the Segovias suffered serious injuries,
the jury could not rationally find that Harris had committed only deadly conduct; it would either have
to convict him of aggravated assault or acquit him of all criminal responsibility.  See Hall v. State,
225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007) (defendant entitled to lesser-included-offense
instruction if (1) lesser offense is included within proof necessary to establish charged offense and
(2) some evidence exists that would permit rational jury to find defendant guilty of only lesser
offense).  Harris's only response to the State's argument was to reiterate that deadly conduct is
included within the proof necessary to establish aggravated assault.  The court ultimately refused to
give the lesser-included-offense instruction, and the jury found Harris guilty on both counts of
aggravated assault (one count for each of the Segovias).  Harris appeals.

DISCUSSION
		Harris argues that the trial court erred by refusing to instruct the jury that it could
convict him of the lesser-included offense of deadly conduct.  Specifically, Harris contends that
the court erred because it relied on an "overruled" case, Garcia v. State, 92 S.W.3d 574 (Tex.
App.--Austin 2002, no pet.), in deciding not to give the lesser-included-offense instruction. (1)
		Generally speaking, a trial court errs by refusing to give a lesser-included-offense
instruction if (1) the lesser offense is included within the proof necessary to establish the charged
offense and (2) there is some evidence that would permit a rational jury to find that the defendant
was guilty only of the lesser offense.  Hall, 225 S.W.3d at 535-36. The indictment in this case
charged Harris with committing aggravated assault two ways:  by (1) recklessly causing serious
bodily injury and (2) recklessly causing bodily injury (not necessarily of the "serious" variety) while
using or exhibiting a deadly weapon (namely, his truck).  See Tex. Penal Code Ann. § 22.02(a).
A person commits deadly conduct, in contrast, by recklessly engaging in conduct that places another
in imminent danger of serious bodily injury.  Id. § 22.05.  Comparing the elements of these offenses,
it is clear that in this case the proof necessary to establish aggravated assault could have established
deadly conduct as well.  Thus, the first prong of the lesser-included-offense analysis was satisfied. See
Hall, 225 S.W.3d at 535.
		The second prong of the lesser-included-offense analysis involves determining
whether there was some evidence by which a rational jury could have convicted Harris of deadly
conduct but acquitted him of aggravated assault.  Id. at 536.  Harris makes two arguments as to
why this prong was satisfied.  First, he argues that there was "no evidence that [he] was even
aware of the presence of the Segovias' [vehicle] on the road prior to the collision."  Thus, he
argues, the jury could have concluded that although he drove recklessly and placed others in
imminent danger of serious bodily injury (thereby satisfying the elements of deadly conduct), he
"did not recklessly cause the result."  (Emphasis added.)
		This argument relies on a false premise:  that for an actor's recklessness to "cause"
harm to a particular victim, the actor must be aware that he is placing that particular victim at risk.
In actuality, "[a] person is . . . criminally responsible for causing a result if the only difference
between what actually occurred and what he . . . risked is that . . . a different person . . . was injured."
Tex. Penal Code Ann. § 6.04(b)(2) (West 2011).  Thus, if Harris risked injuring anyone, he was
criminally responsible for "causing" the Segovias' injuries regardless of whether he knew of the
Segovias' presence.  Harris concedes that he drove recklessly, i.e., was "aware of but consciously
disregard[ed] a substantial and unjustifiable risk that" his driving might cause injury.  Id. § 6.03(c)
(West 2011) (defining recklessness).  That being the case, for purposes of determining whether
Harris's recklessness "caused" the Segovias' injuries, there did not need to be evidence that Harris
knew his conduct might harm the Segovias in particular.  See id. § 6.04(b)(2); see also Newman v.
State, 49 S.W.3d 577, 579-80 (Tex. App.--Beaumont 2001, pet. ref'd) (rejecting appellant's
argument that "her state of mind could not be reckless as to a vehicle of which she was not actually
aware"; "As roads are made for travel by motor vehicles, the likelihood that one will encounter a
motor vehicle on a road is obvious. The State did not have to prove that Newman was actually aware
of the presence of [her victim's] vehicle in order for her presence in his lane of traffic to reveal
conscious risk creation.").
		Next, Harris argues that he was entitled to a lesser-included-offense instruction
because there was some evidence that another motorist "cut him off" before the collisions, so "the
jury could have believe[d] that, although Mr. Harris was driving recklessly, there was an intervening
cause to the collision[s]."  This argument fails because if an "intervening cause" is reasonably
foreseeable, it does not negate an actor's conduct as the "cause" of a result. (2) See Williams v. State,
235 S.W.3d 742, 764-65 (Tex. Crim. App. 2007).  It is obviously quite foreseeable that one might
be cut off by another motorist while driving on a public highway, especially while speeding and
weaving.  Thus, even if Harris's being cut off was an "intervening cause" of the collisions, it was
not a basis for the jury to find that Harris's conduct did not "cause" the collisions.  See Tex. Penal
Code Ann. § 6.04(a) (West 2011) (defining causation for purposes of criminal culpability).  Harris's
argument fails as a result.  We affirm the conviction.


						__________________________________________
						David Puryear, Justice
Before Justices Puryear, Pemberton and Rose

Affirmed
Filed:   April 6, 2012
Do Not Publish
1.   In Garcia we upheld a trial court's refusal to give a lesser-included-offense instruction
in circumstances similar to those at issue here.  See Garcia v. State, 92 S.W.3d 574, 576 (Tex.
App.--Austin 2002, no pet.).  Harris argues that Garcia was overruled by Guzman v. State, 188
S.W.3d 185, 189 n.11 (Tex. Crim. App. 2006).
2.   Harris's "conduct" was, of course, reckless driving.  By definition, "conduct" is an act plus
its accompanying mental state. See Tex. Penal Code Ann. § 1.07(a)(10) (West 2011).  Harris does
not challenge the jury's determination that he drove recklessly, and indeed his argument depends on
the assumption that he drove recklessly; without it, he could not have been convicted of deadly
conduct and so would not have been entitled to a lesser-included-offense instruction in any event.
See id. § 22.05 (West 2011) (recklessness is element of deadly conduct).
