                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-17-00646-CR

                                        Gilbert CISNEROS,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 365th Judicial District Court, Dimmit County, Texas
                              Trial Court No. 15-10-03043-DCRAJA
                         Honorable Amado J. Abascal, III, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: October 31, 2018

AFFIRMED

           A jury convicted Gilbert Cisneros of the offense of aggravated assault with a deadly

weapon. On appeal, Cisneros argues the trial court erred by denying his request for a jury

instruction on reckless driving, which he claims was a lesser-included offense under the

circumstances of this case. We affirm.

                                            BACKGROUND

           Cisneros was indicted for the offense of aggravated assault. The indictment alleged two

manners for commission of the offense. First, the indictment alleged Cisneros intentionally,
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knowingly, or recklessly caused bodily injury to the victim, by causing a motor vehicle to strike

the victim, and the vehicle was a deadly weapon. Second, the indictment alleged Cisneros

intentionally, knowingly, or recklessly caused serious bodily injury to the victim by causing a

motor vehicle to strike the victim. Cisneros pled not guilty to the allegations in the indictment.

       At trial, the State presented evidence showing that in the early morning hours of November

21, 2014, Cisneros drove to a convenience store in Carrizo Springs, Texas, to buy gas for the

vehicle he was driving. While Cisneros went inside to pay, Cisneros’s passenger, Nestor Padilla,

began to pump gas. Vanessa Flores and Robert Titsworth were in the store’s parking lot standing

by a parked car.

       When Cisneros returned to the vehicle, Titsworth approached Padilla and Cisneros and

started to fight with Padilla. Flores and several individuals urged Titsworth to walk away from

Padilla and Cisneros. As Flores and Titsworth were walking away, Cisneros drove up behind them

and hit them with the vehicle. After hitting Flores and Titsworth, Cisneros reversed the vehicle

and sped away from the convenience store. The entire incident was recorded on the store’s security

cameras and the video recordings were played at trial.

       Flores’s knee was cut when she was pinned between the vehicle driven by Cisneros and a

parked car. After the incident, Flores went to the emergency room, where she received medical

treatment, including fourteen sutures, for the cut to her knee.

       Cisneros testified at trial, claiming that he had hit Flores and Titsworth by mistake.

Cisneros claimed the vehicle he was driving, which belonged to his girlfriend, was not in very

good condition. The vehicle had problems with the transmission, requiring Cisneros to “jiggle

through the gears,” and it had problems with the power steering, making it difficult for Cisneros

to steer. Cisneros further testified that Titsworth had scared him and he had panicked. Cisneros

claimed he had hit Flores and Titsworth with the vehicle because he was trying to call 9-1-1 on his
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cell phone and to leave the area quickly. According to Cisneros, he did not see Flores or Titsworth

in front of him and he did not realize that he had hit anyone with the vehicle; however, Cisneros

did realize that he had “bumped into a car.”

       At the charge conference, Cisneros requested jury instructions on deadly conduct and

reckless driving. The trial court granted Cisneros’s request as to deadly conduct but denied his

request as to reckless driving. The trial court also decided to instruct the jury on the offense of

simple assault. Therefore, the jury was instructed on aggravated assault and two lesser-included

offenses, deadly conduct and simple assault. The jury was not instructed on reckless driving.

       The jury convicted Cisneros of the offense of aggravated assault with a deadly weapon.

Cisneros elected to have punishment assessed by the trial court. The trial court sentenced Cisneros

to five years in prison. Cisneros appealed.

                                              DISCUSSION

       In his sole issue, Cisneros argues the trial court erred in denying his request for a jury

instruction on reckless driving. Cisneros argues that, under the circumstances of this case, reckless

driving was a lesser-included offense of aggravated assault. Cisneros argues he satisfies the two-

part test set out in Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007), for determining

if a defendant is entitled to a lesser-included-offense instruction. Under Hall, the first step is to

determine if the requested instruction pertains to an offense that is a lesser-included offense of the

charged offense, which is a matter of law. Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App.

2016); Hall, 225 S.W.3d at 535. The second step is to determine if there is evidence in the record

that supports giving the instruction to the jury. Bullock, 509 S.W.3d at 924-25; Hall, 225 S.W.3d

at 536. The second step requires some evidence in the record that would permit a jury to rationally

find that, if the defendant is guilty, he is guilty only of the lesser offense. Bullock, 509 S.W.3d at

925; Hall, 225 S.W.3d at 536. The State agrees that Cisneros satisfies the first step of the Hall test,
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but not the second step of the Hall test. Therefore, according to the State, the trial court’s refusal

to instruct the jury on reckless driving was not error.

       For purposes of analyzing this case, we will assume, without deciding, the trial court erred

in refusing to instruct the jury on reckless driving. We, therefore, confine our analysis to whether

Cisneros was harmed by the alleged error.

       Preservation of charge error does not become an issue until an appellate court evaluates

harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1984). In this case, Cisneros preserved any error by objecting in the

trial court. Generally, when jury-charge error has been preserved, we reverse if the error in the

court’s charge resulted in some harm to the accused. Ngo, 175 S.W.3d at 743; Almanza, 686

S.W.2d at 171.

       Cisneros argues that he was harmed by the refusal to instruct the jury on reckless driving

because the punishment for aggravated assault exceeds the punishment for reckless driving. The

State counters that Cisneros was not harmed by the refusal to instruct the jury on reckless driving

for the reasons stated in Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005).

       In Masterson, the Court of Criminal Appeals reiterated that a jury’s failure to find an

intervening lesser-included offense may, in appropriate circumstances, render a failure to instruct

on a requested lesser-included offense harmless. Id. (citing Saunders v. State, 913 S.W.2d 564,

572 (Tex. Crim. App. 1995)). The Court of Criminal Appeals reasoned that “the harm from

denying a lesser offense instruction stems from the potential to place the jury in the dilemma of

convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from

criminal liability a person the jury is convinced is a wrongdoer.” Id. “The intervening lesser offense

is an available compromise, giving the jury the ability to hold the wrongdoer accountable without

having to find him guilty of the charged (greater) offense.” Id. An instruction regarding an
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intervening lesser offense does not automatically foreclose harm because in some circumstances

that intervening offense may be the least plausible theory under the evidence. Id. However, if the

jury’s rejection of the intervening lesser offense indicates that the jury legitimately believed that

the defendant was guilty of the greater, charged offense, the appellate court can conclude that the

intervening offense instruction renders the error harmless. Id. at 171-72.

       We must first determine if the jury in this case was charged on an intervening lesser-

included offense. An intervening lesser-included offense is one that “is between the requested

lesser offense and the offense charged.” Id. at 171. In this case, the requested lesser offense was

reckless driving, which is a misdemeanor punishable by a fine not to exceed $200 and/or

confinement in the county jail for not more than thirty days. TEX. TRANSP. CODE ANN.

§ 545.401(b). The potential intervening lesser-included offense was simple assault, which is

generally a Class A misdemeanor, punishable by a fine not to exceed $4000 and/or confinement

in jail not to exceed one year. TEX. PENAL CODE ANN. §§ 12.21, 22.01(b). Finally, the greater,

charged offense was aggravated assault, which is a second degree felony punishable by a fine not

to exceed $10,000 and/or a term of imprisonment from two to twenty years. Id. §§ 12.33,

22.02(a),(b). We conclude simple assault qualifies as an intervening lesser-included offense in this

case, and therefore, Masterson applies.

       Under Masterson’s analysis, we consider whether the jury rejected the intervening lesser-

included offense. 155 S.W.3d at 171. We also consider the plausibility of the intervening lesser-

included offense. Id. Therefore, if the jury rejected simple assault, and that offense was not “the

least plausible theory under the evidence,” then the trial court’s refusal to instruct on reckless

driving was harmless. See id.

       Here, the jury was instructed that a person commits the offense of simple assault if he

recklessly causes bodily injury to another. Under the evidence presented, simple assault was a
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realistic option for the jury. The State’s aggravated assault theories were based on Cisneros either

using or exhibiting the vehicle in a manner that met the definition of deadly weapon, or Flores

suffering serious bodily injury. If the jury found (1) Cisneros operated the vehicle recklessly, (2)

Flores suffered bodily injury but the vehicle was not a deadly weapon, and (3) Flores did not suffer

serious bodily injury, then the jury would have found Cisneros “not guilty” of aggravated assault.

Under this scenario, all the elements of simple assault would have been proven and a conviction

for that lesser-included offense would have been appropriate. Additionally, the nature and extent

of Flores’s injury was contested at trial, but the fact that Flores suffered some bodily injury was

not. Bodily injury may be an element of simple assault, but it is not an element of reckless driving. 1

We conclude that under the evidence presented simple assault was not “the least plausible theory

under the evidence.” See id.

         The intervening lesser offense was an available compromise in this case; it gave the jury

the ability to hold Cisneros accountable without having to find him guilty of the greater offense.

See id. The jury’s conviction of Cisneros for aggravated assault with a deadly weapon despite the

availability of simple assault shows that the jury legitimately believed that Cisneros was in fact

guilty of the greater offense. Because the jury rejected simple assault, and that offense was not the

least plausible theory under the evidence, the trial court’s refusal to instruct on reckless driving

was harmless. See id. at 171-72; Guzman v. State, 188 S.W.3d 185, 194 n.20 (Tex. Crim. App.

2006) (recognizing in attempted murder appeal that any error in refusing a deadly conduct

instruction would have been harmless in light of the jury’s rejection of the intervening lesser-




1
 A person commits the offense of assault by intentionally, knowingly, or recklessly causing bodily injury to another.
TEX. PENAL CODE ANN. § 22.01(a)(1). A person commits the offense of reckless driving by driving a vehicle in willful
or wanton disregard for the safety of persons or property. TEX. TRANSP. CODE ANN. § 545.401(a).

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included offense of aggravated assault). Therefore, we conclude that any error in denying a

reckless driving instruction was harmless. We overrule Cisneros’s sole issue.

                                         CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Karen Angelini, Justice

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