Affirmed and Memorandum Opinion filed July 26, 2012.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-11-00706-CR

                          NHUT H. NGUYEN, Appellant,

                                         V.

                        THE STATE OF TEXAS, Appellee.


                      On Appeal from the 262nd District Court
                                  Harris County
                          Trial Court Cause No. 1267335


                 MEMORANDUM                       OPINION
      A jury found appellant Nhut H. Nguyen guilty of aggravated assault and assessed
punishment of 45 years’ confinement in the Institutional Division of the Texas
Department of Criminal Justice and a $5,000 fine. On appeal, Nguyen contends the trial
court erred when it denied his request for a charge on the lesser offense of deadly
conduct. We affirm.

                                          I

      Nguyen was approached to kill the complainant, Yvonne Stern, for $5,000.
Nguyen agreed to kill the complainant because he needed money to pay for repairs to his
vehicle. He was provided a gun, a photo of the complainant, and a vehicle to use in the
with which to commit the crime. He was also provided with directions to the
complainant’s home in Bellaire. Nguyen drove to the complainant’s home and observed
her for some time before approaching her.

       On the night of April 15, 2010, the complainant was at home when she heard the
doorbell ring. As she was about to open the glass-paneled door, Nguyen pointed the gun
at her and shot through the glass. The complainant, fearing for her life and the safety of
her children, jumped back and began screaming and crying. Nguyen fled, throwing the
gun in the bushes nearby. The bullet from Nguyen’s gun broke the glass, ricocheted off
the wall, and hit the floor. Later, police located the gun, which appeared to be jammed.

                                            II

       In deciding whether the jury should have been charged on a lesser-included
offense, we apply a two-prong test. Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.
2011); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Nickerson v. State,
312 S.W.3d 250, 260 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). First, we
determine whether the offense is a lesser-included offense of the alleged offense. Hall,
225 S.W.3d at 535; Nickerson, 312 S.W.3d at 260. Second, we determine whether there
is some evidence in the record that would permit a jury rationally to find that, if the
defendant is guilty, he is guilty only of the lesser-included offense. Hall, 225 S.W.3d at
536; Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). The evidence
must establish the lesser-included offense as a valid, rational alternative to the charged
offense. Hall, 225 S.W.3d at 536; Nickerson, 312 S.W .3d at 260. The evidence need not
be particularly convincing; anything more than a mere scintilla of evidence will suffice.
Hall, 225 S.W.3d at 536; Nickerson, 312 S.W.3d at 260.

       The Texas Code of Criminal Procedure provides that “[i]n a prosecution for an
offense with lesser included offenses, the jury may find the defendant not guilty of the


                                             2
greater offense, but guilty of any lesser included offense.” Tex. Code Crim. Proc. art.
37.08. It also states that 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;
       (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;
       (3) it differs from the offense charged only in the respect that a less
       culpable mental state suffices to establish its commission; or
       (4) it consists of an attempt to commit the offense charged or an otherwise
       included offense.

Tex. Code Crim. Proc. art. 37.09. When the greater offense may be committed in more
than one manner, the manner alleged will determine the availability of lesser-included
offenses. Hall, 225 S.W.3d at 531.

       A person commits the offense of assault if the person intentionally or knowingly
threatens another with imminent bodily injury. Tex. Penal Code § 22.01(a)(2).
Aggravated assault occurs if the person commits an assault under Section 22.01 and the
person uses or exhibits a deadly weapon during the offense. Tex. Penal Code § 22.02.
The indictment tracks this language, alleging Nguyen “intentionally and knowingly
threaten[ed] Yvonne Stern with imminent bodily injury by using and exhibiting a deadly
weapon, namely a firearm.”

       A person commits the Class A misdemeanor offense of deadly conduct when he
“recklessly engages in conduct that places another in imminent danger of serious bodily
injury.” Tex. Penal Code § 22.05(a). Courts have held that the offense of deadly conduct,
formerly known as “reckless conduct,” see Guzman, 188 S.W.3d at 196 n.8, can be a
lesser-included offense of aggravated assault when the assault is based on a threat of
imminent bodily injury. See Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985); Isaac
v. State, 167 S.W.3d 469, 474 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Bynum
v. State, 874 S.W.2d 903, 907 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). We


                                               3
likewise conclude that in this case deadly conduct is a lesser-included offense of
aggravated assault. The first prong of the test is satisfied.
        Turning to the second prong, however, we conclude that here is no evidence in the
record to support a finding that if Nguyen is guilty, he is guilty only of deadly conduct.
Nguyen contends there was evidence from which the jury could reasonably conclude he
was guilty only of deadly conduct because he never intended to harm the complainant,
but only “aimed away from her” and thereby placed her in danger of imminent serious
bodily injury.1 All of Nguyen’s evidence, however, shows he acted intentionally rather
than recklessly, and therefore he cannot show that if he is guilty, his is guilty only of
deadly conduct. See Guzman, 188 S.W.3d at 193–94; see also Dixon v. State, 358 S.W.3d
250, 259 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (holding deadly conduct
charge not required when there was no evidence appellant lacked the intentional or
knowing mental state).

        Nguyen points to the following evidence to support his contention: (1) his
statement to police; (2) the complainant’s testimony that the bullet hole through the door
was knee-high and hit the floor; (3) the firearms examiner’s testimony that if a gun were
aimed downward the bullet would follow that path; and (4) the testimony of the detective
dispatched to the scene who opined that there was a direct line between the hole in the
glass door and the gouge mark in the floor. Nguyen also states that “aiming a gun and



1
  Nguyen also argues that “[b]y proving the higher culpable mental state of intentional or knowing, proof
of recklessness is necessarily established.” To support this assertion, Nguyen cites to Penal Code section
6.02(e) and Ex parte Amador, 326 S.W.3d 202, 206 (Tex. Crim. App. 2010) (citing Briceno v. State, 580
S.W.2d 842, 844 (Tex. Crim. App. 1979). In Amador, the court reaffirmed its holding in Briceno that
indecent exposure was a lesser-included offense of indecency with a child by exposure and went on to
hold that the Double Jeopardy Clause of the U.S. Constitution bars a later prosecution for the greater
offense after the defendant pleaded guilty to the lesser offense. See Amador, 326 S.W.3d at 208. The
analysis Nguyen relies on, however, is directed to the first prong of the test rather the second prong,
which focuses on whether the evidence actually presented would support a rational jury’s finding of guilt
based on the lesser offense. See id. at 208 (The only question before us today is whether indecent
exposure is in fact a lesser-included offense of indecency with a child by exposure.”); Briceno, 580
S.W.2d at 844 (noting that “[a] charge on a lesser-included offense does not have to be submitted to the
jury unless there is evidence raising the issue of whether the defendant could be guilty of only the lesser
offense”).
                                                    4
firing through a glass door so that the glass might hit the complainant and scare her was a
“conscious disregard of a substantial and unjustifiable risk.”

          Even if the jury discounted the complainant’s testimony that Nguyen pointed the
gun at her, however, the evidence Nguyen cites supports a finding of intentional or
knowing conduct, not recklessness.2 In his statement, Nguyen explained that he agreed to
kill the complainant for $5,000 because he needed the money to repair his vehicle, but he
insisted that he never intended to shoot her. He repeatedly stated he did not intend to aim
at her; instead, he “aimed the gun to the side of the door” and “popped the window.”3
Nguyen explained that he if he had wanted to kill the complainant, he could have: “If I
wanted . . . to try and kill her, I would have popped her right there, because I had eight
bullets in my hand.” Nguyen also maintained that he aimed for the glass so that the glass
might hit the complainant and “scare” her. This and the other evidence of the bullet’s
trajectory are not evidence of reckless conduct, but rather a deliberate, intentional threat
directed at the complainant. On this record, a jury could not rationally find Nguyen guilty
only of the lesser-included offense of deadly conduct; therefore, the trial court did not err

2
    The Penal Code defines the relevant culpable mental states as follows:

          (a) A person acts intentionally, or with intent, with respect to the nature of his conduct or
          to a result of his conduct when it is his conscious objective or desire to engage in the
          conduct or cause the result.
          (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct
          or to circumstances surrounding his conduct when he is aware of the nature of his
          conduct or that the circumstances exist. A person acts knowingly, or with knowledge,
          with respect to a result of his conduct when he is aware that his conduct is reasonably
          certain to cause the result.
          (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his
          conduct or the result of his conduct when he is aware of but consciously disregards a
          substantial and unjustifiable risk that the circumstances exist or the result will occur. The
          risk must be of such a nature and degree that its disregard constitutes a gross deviation
          from the standard of care that an ordinary person would exercise under all the
          circumstances as viewed from the actor's standpoint.
Tex. Penal Code § 6.03(a)–(c).
          Elsewhere in his statement, Nguyen said “I didn’t try to kill nobody for $5,000 anyway. I just
          3

need the money, . . . I already know that I try to jack their money from the beginning anyway.” He also
stated that he only wanted to make some “noise” so that he could get the money.

                                                       5
by refusing the requested charge. See Hall, 225 S.W.3d at 536; Guzman, 188 S.W.3d at
193–94; see also Donoho v. State, 39 S.W.3d 324, 331 (Tex. App.—Fort Worth 2001,
pet. ref’d) (holding appellant not entitled to instruction on misdemeanor deadly conduct
when there was no evidence that he acted in any manner other than intentionally);
Franklin v. State, 992 S.W.2d 698, 705 (Tex. App.—Texarkana 1999, pet. ref’d) (holding
trial court did not err by refusing misdemeanor deadly conduct charge when all of the
evidence showed appellant’s conduct with reference to use of the weapon was intentional
conduct).

      We therefore overrule Nguyen’s sole issue on appeal.

                                         ***

      We affirm the trial court’s judgment.




                                        /s/       Jeffrey V. Brown
                                                  Justice



Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                              6
