                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


                                                 §
 ABRAHAM BENAVIDES,                                              No. 08-07-00193-CR
                                                 §
                   Appellant,                                       Appeal from the
                                                 §
 V.                                                               211th District Court
                                                 §
 THE STATE OF TEXAS,                                           of Denton County, Texas
                                                 §
                   Appellee.                                     (TC# F2006-1513-C)
                                                  §

                                                  §

                                           OPINION

       Appellant was convicted of aggravated assault and sentenced to 2 years confinement in

the Institutional Division of the Texas Department of Criminal Justice. On appeal, Appellant

raises one issue arguing it was error to not include the lesser-included offense instruction to the

jury. We affirm.

       On July 4, 2006, Christopher Gallagher saw Appellant blowing dust and debris from his

driveway onto the car in Mr. Gallagher’s driveway. The next day, Mr. Gallagher complained to

him about that and also the fact that Appellant’s dog had been barking the past couple of nights.

The men had a verbal argument where both used profane language. Mr. Gallagher testified he

later saw Appellant go to his car, and next saw him carrying a gun and pointing it at him.

Mr. Gallagher put his hands up and backed off until he ended up by a tree. Mr. Gallagher saw

Appellant was going to shoot, so he turned and ducked before Appellant fired the gun.

       Appellant testified that Mr. Gallagher was beating on his door, and they started arguing
about the car and the dogs barking. Later, Appellant went outside to get his cell phone from the

car, and Mr. Gallagher was still yelling at him. Appellant testified that Mr. Gallagher tried to get

into his car through the passenger door, but it was locked. Mr. Gallagher started coming around

the car and reached in and grabbed Appellant’s arm. Appellant stated he then pulled the gun

from underneath the cup holder and pointed it at Mr. Gallagher to get him to let him go. He

stated Mr. Gallagher began backing up but was still acting like he was going to hit him.

Appellant would point the gun at him whenever he seemed like he was going to try and hit him.

Appellant stated that when Mr. Gallagher started going inside, he pulled the clip out, and fired

the gun into the tree to disengage it. At trial, counsel for Appellant requested the inclusion of a

lesser-included offense instruction for deadly conduct, which was denied by the trial court.

        In his sole issue, Appellant contends the trial court committed reversible error by denying

his request for a jury instruction on the lesser-included offense of deadly conduct. A defendant is

entitled to the charge if (1) the offense is a lesser-included offense of the charged offense, which

is determined by comparing the elements of the greater offense, as pled in the indictment, with

the elements in the lesser offense, and (2) if there is some evidence in the record from which a

rational jury could acquit the defendant of the greater offense while convicting him of the lesser

included offense. Segundo v. State, 270 S.W.3d 79, 90-1 (Tex.Crim.App. 2008). The evidence

must establish the lesser-included offense as a valid rational alternative to the charged offense.

Id. at 91.

        The State concedes in their brief that the greater offense of aggravated assault, as pled in

this case, contains the lesser-included offense of deadly conduct. We agree. See Bell v. State,

693 S.W.2d 434, 439 (Tex.Crim.App. 1985)(finding reckless conduct, which is identical to the


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current deadly conduct statute, to be a lesser-included offense of aggravated assault with an

indictment similar to the one in this case). The second step in the analysis requires us to look at

whether there is some evidence in the record from which would allow a rational jury to only

convict on the lesser offense. Mr. Benavides’ testimony shows he intentionally pointed the gun

at Mr. Gallagher. Mr. Benavides stated, “I grabbed my gun and I pointed it at him.” He pointed

the gun at him so that Mr. Gallagher would let him go and leave him alone. Mr. Benavides did

not keep the gun pointed at Mr. Gallagher, but when he was acting like he was going to hit him,

Mr. Benavides would point the gun back at him. He pointed the gun at him to scare him away.

This testimony would prevent a rational jury from being able to convict on only the lesser-

included offense. The testimony shows that the pointing of the gun was intentionally and

knowingly done. Since there was no evidence to the contrary, a rational jury would not be able to

find that Appellant acted recklessly and not intentionally. Appellant argues that the State focused

on the firing of the weapon, but the indictment and charge provided that for the use or exhibiting

of the gun. We find the trial court properly denied the inclusion of the lesser-included offense

instruction. Issue One is overruled.

       The trial court certified that Appellant had a right to appeal but the certification does not

contain the defendant’s signature indicating that he was informed of his rights to appeal and file a

pro se petition for discretionary review. The certification is defective and it has not been

corrected by the trial court or Appellant’s attorney. In order to remedy this defect, we ORDER

Appellant’s attorney, pursuant to TEX .R.APP .P. 48.4, to send Appellant a copy of our opinion and

judgment, notify Appellant of his right to file a pro se petition for discretionary review, and

inform Appellant of the pertinent deadlines. See TEX .R.APP .P. 48.4, 68. Appellant’s attorney is


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further ORDERED to comply with all of the requirements of Rule 48.4.

       We affirm Appellant’s conviction.



September 23, 2009
                                            DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J. (Not Participating)

(Do Not Publish)




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