                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00127-CR



          THIEN QUOC NGUYEN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 19th District Court
              McLennan County, Texas
            Trial Court No. 2012-2444-C1




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Burgess
                                             OPINION
        On October 24, 2012, in McLennan County,1 Texas, Thien Quoc Nguyen drove his car in

front of a motorcycle driven by Michael Willett and slammed on his brakes, forcing Willett to

crash the motorcycle and causing Willett to sustain serious injury. Nguyen was indicted for

aggravated assault with a deadly weapon and was subsequently convicted of that crime by a

McLennan County jury. After pleading true to enhancement and habitual-offender allegations,

Nguyen was sentenced to forty-seven years’ imprisonment.

        On appeal, Nguyen argues that (1) the evidence was legally insufficient to support his

conviction; (2) the State violated his right to a speedy trial; (3) the indictment failed to properly

allege reckless conduct; (4) the trial court erroneously submitted the State’s deadly-weapon theory

and the options of knowing and intentional mental states to the jury; (5) the trial court erred by not

submitting to the jury a lesser-included offense instruction of simple assault; (6) the trial court’s

instructions and submission to the jury contained a misleading theory of the case and improperly

commented on the evidence; (7) five prospective jurors were improperly dismissed; and (8) the

trial court improperly limited his cross-examination of Willett.

        We find that (1) sufficient evidence supports Nguyen’s conviction; (2) Nguyen failed to

preserve any complaint that the State violated his right to a speedy trial; (3) Nguyen waived any

complaint that the trial court erred in submitting recklessness to the jury based on the State’s failure




1
 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

                                                        2
to properly allege reckless conduct; (4) the trial court did not err in submitting the State’s deadly-

weapon theory or its intentional and knowing mental-state allegations; (5) Nguyen was not entitled

to a lesser-included offense instruction of reckless driving; (6) Nguyen failed to preserve the

complaints that the jury charge contained a misleading theory and that the trial court made

improper comments; (7) dismissing the veniremembers was within the trial court’s discretion; and

(8) the trial court’s error in limiting Nguyen’s cross-examination of Willett was harmless.

Accordingly, we affirm the trial court’s judgment.

I.     Factual Background

       Willett testified that, on October 24, 2012, he was riding his motorcycle at about sixty miles

per hour when a black Mercedes sedan, driven by Nguyen, pulled beside him and repeatedly

accelerated and decelerated. Willett testified, “[Nguyen] was trying to race me . . . and then he got

behind me to ride my bumper.” Willett went on to say, “[Nguyen got] so close behind me that,

you know, I felt, you know, in danger, so I -- you know, I was aggravated at that point, so I did

give him the finger, and then I proceeded to accelerate to get away.”

       Subsequently, Willett slowed down as he approached an intersection and a nearby gas

station. When he did, Nguyen caught up to him, passed him, pulled into Willett’s lane of travel

just a “few feet” ahead of him and “jammed on the brakes.” Willett “laid the bike down” to avoid

colliding with Nguyen’s car, and he and the motorcycle slid for about 150 feet. Willett and his

motorcycle came to a stop “right before . . . or right after the intersection,” near the entrance to a

nearby convenience store and gas station. Despite the slide, Willett did not believe his motorcycle



                                                  3
struck Nguyen’s car. Willett testified he saw Nguyen drive away from the scene, but that he

returned before the police arrived.

        As a result of the incident, the motorcycle was damaged and was leaking fluids. Willett

ended up four or five feet away from the motorcycle, suffered bruising and cuts to his knee, “road

rash,” and scarring on his hip. As a result of his injuries, he was transported to a local hospital.

Willett testified that he could walk immediately after the accident, but that he could no longer do

so about thirty or forty minutes after he arrived at the hospital. For the next three weeks, Willett

could only walk with the aid of crutches. At the time of trial, he still felt occasional pain from his

injuries.

        Aldora Bradford testified that the incident happened “well before” the intersection of Lake

Shore Drive and Gholson Road. She remembered initially seeing the motorcycle next to her in the

left lane and Nguyen’s Mercedes behind the motorcycle. Bradford testified that, at one point, the

black sedan was “behind [her] trying to run [her] over” in order to “get to the motorcycle.” She

testified that Nguyen sped up and then slowed down, trying to race the motorcycle, “like he was

playing a game.” She believed that Nguyen’s driving was dangerous to her and everyone else on

the road. When asked to describe Nguyen’s driving, she said, “I don’t know if he was having a

road rage moment or what, because he was trying to make me get out of the way and driving on

the shoulder and about to hit me from behind.”

        Bradford testified that the Mercedes passed her and pulled into the right lane ahead of her

next to the motorcycle. Nguyen then pulled ahead of the motorcycle and cut in front of it.



                                                  4
According to Bradford, it looked “like he tried to -- he hit him.” After the incident, Nguyen “tried

to leave” and continued to drive further down Gholson, but the driver of a van made him pull over.

        The two men in the van were identified as David Attaway and his brother, Boots Attaway.

Both men testified at trial. David testified that they were traveling in the right lane, approaching

the intersection of Lake Shore Drive and Gholson Road, when David noticed a motorcycle quickly

approaching them from behind. David changed into the left lane to allow the motorcycle to

continue; however, Nguyen suddenly cut him off, forcing him onto the median. He saw Nguyen

pull in front of the motorcycle and hit his brakes, forcing the motorcyclist to “lay it down.” He

knew that Nguyen “hit [the brakes] hard, because the nose of that car dropped.” Boots’ testimony

corroborated David’s and Bradford’s testimony.

        After the accident, David let his brother out of the van so he could check on the

motorcyclist. David called 9-1-1 and followed Nguyen’s Mercedes. Nguyen later stopped, got

out of the vehicle, and walked back to David’s van, saying, “What happened? I didn’t do

anything,” but then Nguyen got back in his car and continued to drive away. He eventually pulled

into the gas station’s parking lot.

        James Evans, an accident reconstructionist, testified for the defense. Evans personally

visited, measured, and photographed the accident scene and reviewed the police incident report,

the written statements the witnesses gave to the police, as well as the photographs of the damaged

vehicles. He also viewed photographs depicting a puddle of fluid left on the road and gouges and

scrape marks left on the pavement. Based on that information, he produced several drawings

depicting the various ways the accident could have occurred. Evans testified that his “initial

                                                 5
thought was that [Nguyen] was pulling into a driveway or [was] turning in the right turn lane or

something of that nature” at the time of the accident. Evans could not exclude the possibility that

Nguyen was slowing down to make the turn at the intersection. However, on cross-examination,

he admitted that, based on the physical evidence, he could not discern which of the possible

scenarios actually occurred. Specifically, he testified that he could not determine “if the car braked

hard and caused something or if he swerved hard and caused something or did a lane change or if

the car wasn’t really involved at all and the motorcycle wasn’t paying attention and braked.”

II.    Analysis of the Issues

       A.      The Evidence Supporting Nguyen’s Conviction Was Legally Sufficient

       In his first point of error, Nguyen argues that there is legally insufficient evidence that he

intentionally, knowingly, or recklessly assaulted Willett using his car as a deadly weapon.

               1.      Standard of Review

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review

focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J.,

concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

                                                  6
214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

           Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id. In order to convict Nguyen, the evidence had to be sufficient to show

that Nguyen intentionally, knowingly, or recklessly caused bodily injury to Willett by driving

recklessly, causing Willett to crash his motorcycle, and that Nguyen used his car as a deadly

weapon during the commission of the assault. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West

Supp. 2016), § 22.02(a)(2) (West 2011). Nguyen contends that the evidence is insufficient to find

(a) that he acted intentionally, knowingly, or recklessly or (b) that he used his vehicle as a deadly

weapon.2 We disagree.

                    2.       Application

                             a.      Sufficient Evidence Supports the Jury’s Findings that Nguyen
                                     Intentionally, Knowingly, or Recklessly Assaulted Willett

           “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.” TEX. PENAL CODE ANN. § 6.03(a) (West 2011). “Proof of a culpable mental state is



2
    Because Nguyen only challenges two elements of the charged offense, we need not examine the remaining elements.
                                                          7
often made by circumstantial evidence.” Louis v. State, 329 S.W.3d 260, 268 (Tex. App.—

Texarkana 2010), aff’d, 393 S.W.3d 246 (Tex. Crim. App. 2012) (citing Dunn v. State, 13 S.W.3d

95, 98–99 (Tex. App.—Texarkana 2000, no pet.)). A culpable mental state may be inferred “from

any facts which tend to prove its existence, including the acts, words, conduct of the accused, and

the method of committing the crime.” Id. (citing Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App.

2002)).

          Willett testified that, prior to the accident, Nguyen was trying to race him and was riding

his bumper. According to Bradford, Nguyen sped up to Willett and then slowed down. She

testified that Nguyen tried to run over her in his attempts to get to the motorcycle. Willett testified

that he gave Nguyen the middle finger and sped away, but that Nguyen eventually passed him,

pulled into his lane just a few feet ahead of him, and “jammed on the brakes,” forcing him to crash

the motorcycle. David and Boots testified that Nguyen hit his brakes so hard that the nose of his

car dropped sharply. While Evans testified that it was possible that Willett failed to keep a proper

lookout or that Nguyen was slowing down in order to turn at the intersection, he also admitted that

he could not definitively say that that is what happened. Bradford testified that the accident

happened well before the intersection, so the jury could have inferred that Nguyen was not slowing

down in order to turn. Moreover, Willett, Bradford, David, and Boots testified that Nguyen

intentionally pulled in front of Willett’s motorcycle and slammed on his brakes.3



3
 Nguyen does not contend that the trial court erred in admitting the witnesses’ lay opinion testimony regarding his
mental state, and, therefore, the evidence may be considered in evaluating whether sufficient evidence supports the
jury’s verdict. See Fairow v. State, 943 S.W.2d 895, 898–99 (Tex. Crim. App. 1997) (lay opinion of culpable mental
state may be admissible if proponent establishes personal knowledge of facts from which the opinion may be drawn);
see also Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995) (intent can be inferred from words or actions).
                                                         8
       The jury was the sole fact-finder and had the sole responsibility to weigh the evidence. As

such, the jury was free to believe the testimony of the State’s witnesses and dismiss Evans’

conflicting theories. See Jackson, 443 U.S. at 319. Viewing the evidence in the light most

favorable to the jury’s verdict, a rational jury could have reasonably inferred that it was Nguyen’s

“conscious objective or desire to” cause Willett’s injury by driving recklessly. See TEX. PENAL

CODE ANN. § 6.03(a); Louis, 329 S.W.3d at 268. Finally, because the evidence is sufficient to

prove that Nguyen acted intentionally, it is necessarily sufficient to prove the lesser culpable

mental states of knowing and reckless. See TEX. PENAL CODE ANN. § 6.02(e) (West 2011);

McKinney v. State, 12 S.W.3d 580, 583–84 (Tex. App.—Texarkana 2000, pet. ref’d). Therefore,

the evidence is sufficient to support the jury’s verdict.

                       b.      Sufficient Evidence Supports the Jury’s Finding that Nguyen’s
                               Vehicle Was A Deadly Weapon

       A deadly weapon is defined in the Texas Penal Code as a firearm or “anything that in the

manner of its use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL

CODE ANN. § 1.07(a)(17)(A), (B) (West Supp. 2016). Items that are not deadly weapons per se

may be deemed deadly weapons by reason of their use or intended use. Hill v. State, 913 S.W.2d

581, 582–83 (Tex. Crim. App. 1996). A motor vehicle may be a deadly weapon where “the vehicle

was intentionally, recklessly or negligently used as a weapon by the accused.” English v. State,

828 S.W.2d 33, 38 (Tex. App.—Tyler 1991, pet. ref’d). A deadly-weapon finding is justified if a

rational jury could have concluded that the defendant’s vehicle posed an actual danger of death or

serious bodily injury. Sierra v. State, 280 S.W.3d 250, 254, 256–57 (Tex. Crim. App. 2009).


                                                  9
        Here, Willett and Boots testified that the manner in which Nguyen used his vehicle that

day could have caused serious bodily injury or death.                See TEX. PENAL CODE ANN.

§ 1.07(a)(17)(A), (B); Hill, 913 S.W.2d at 582–83; English, 828 S.W.2d at 38. As a result of the

crash, Willett suffered bruising, cuts, road rash, and scarring, and for three weeks after the accident,

he was unable to walk without the aid of crutches. There was testimony that Nguyen tried to race

Willett and that, while trying to pass Willett, he almost ran over Bradford’s vehicle and forced

David’s van onto the median. Several witnesses testified that, after passing Willett, Nguyen

intentionally got in front of him and slammed on his brakes. That evidence, coupled with Willett’s

injuries from the crash, sufficiently supports the jury’s determination that the manner in which

Nguyen used his vehicle posed an actual danger of death or serious bodily injury. See TEX. PENAL

CODE ANN. § 1.07(a)(17)(A), (B); Sierra, 280 S.W.3d at 254, 256–57; McCain v. State, 22 S.W.3d

497, 503 (Tex. Crim. App. 2000) (specific intent to use vehicle as deadly weapon not required).

Because there is sufficient evidence to support the jury’s verdict and deadly-weapon finding, we

overrule this point of error.

        B.      Nguyen Failed to Preserve Error Regarding his Right to a Speedy Trial

        In his second point of error, Nguyen contends that the State violated his Sixth Amendment

right to a speedy trial. He argues that he “had been incarcerated since October 24, 2012[,] and he

requested a speedy trial on July 22, 2014, [but] trial did not commence until June 9, 2015.”

                1.      Standard of Review

        The Sixth Amendment to the United States Constitution provides, in relevant part, that,

“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. CONST.

                                                  10
amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972). That right was made applicable to the

states by the Due Process Clause of the Fourteenth Amendment. U.S. CONST. amend. XIV; see

Klopfer v. N. Carolina, 386 U.S. 213, 223–26 (1967). The Texas Constitution likewise provides

that, “[i]n all criminal prosecutions the accused shall have a speedy . . . trial.” TEX. CONST. art. 1,

§ 10. The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims

of the denial of a speedy trial under the factors articulated in Barker. See Zamorano v. State, 84

S.W.3d 643, 648 (Tex. Crim. App. 2002).

       The right to a speedy trial is subject to a balancing test to determine whether the right has

been abridged. Barker, 407 U.S. at 530. The court should inquire about (1) the length of the delay,

(2) reasons for the delay, (3) the circumstances of the defendant’s assertion of the right, and (4) any

prejudice that resulted from the delay. Id. When reviewing a trial court’s decision on a speedy

trial claim, an appellate court applies a bifurcated standard of review. State v. Munoz, 991 S.W.2d

818, 821 (Tex. Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.—Dallas 2005,

pet. ref’d). “[W]e review legal issues de novo[,] but give deference to a trial court’s resolution of

factual issues.” Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991 S.W.2d

at 821; Jones, 168 S.W.3d at 345. We review a speedy trial claim in light of the arguments,

information, and evidence that was available to the trial court at the time it ruled. Shaw v. State,

117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim.

App. 2003); Jones, 168 S.W.3d at 345.




                                                  11
                   2.       Application

         Here, Nguyen filed a motion for speedy trial and a request for priority setting, but he failed

to seek a ruling on his motion. Because the trial court was not given the opportunity to consider

the Barker factors, there is no evidentiary record from which this Court could apply, analyze, and

balance those factors. See Grimaldo v. State, 130 S.W.3d 450, 454 (Tex. App.—Corpus Christi

2004, no pet.); Wade v. State, 83 S.W.3d 835 (Tex. App.—Texarkana 2002, no pet.); Dean v. State,

995 S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref’d). Therefore, Nguyen failed to preserve

this issue for our review. See Dean, 995 S.W.2d at 850.

         C.        Nguyen Waived Any Error Regarding the Allegation of Reckless Conduct

         In his third point of error, Nguyen argues that the indictment failed to sufficiently allege

specific reckless conduct by him and, therefore, that the trial court erred in submitting that theory

of assault to the jury. Nguyen failed to preserve this point at trial.

         The indictment alleges that by “driving recklessly,” Nguyen “intentionally, knowingly, or

recklessly” injured Willett by causing him to crash his motorcycle. Nguyen contends that, by

alleging that he acted recklessly, the State was required to allege in the indictment “the act or acts

relied upon to constitute recklessness” and that, because the State failed to do so, “the indictment

could not support or authorize a verdict or judgment based on reckless conduct.”4 Therefore,



4
 Article 21.15 of the Code of Criminal Procedure provides,
          Whenever recklessness . . . enters into or is a part or element of any offense, or it is charged that the
          accused acted recklessly . . . in the commission of an offense, the complaint, information, or
          indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act
          or acts relied upon to constitute recklessness . . ., and in no event shall it be sufficient to allege
          merely that the accused, in committing the offense, acted recklessly . . . .
TEX. CODE CRIM. PROC. ANN. art. 21.15 (West 2009).
                                                            12
Nguyen concludes, the trial court erred in submitting aggravated assault with a deadly weapon to

the jury based on recklessness.

        Despite Nguyen’s attempt to couch this as a jury charge error, it is apparent from his

argument that he “challenges his conviction on the basis of a defective charging instrument” as

“recklessness was not properly alleged . . . in the manner mandated by Article 21.15.” Nguyen

was required to assert any objection “to any defect, error, or irregularity of form or substance in

[the] indictment” before trial. TEX. CODE CRIM. PROC. ANN. art. 1.14(b) (West 2005). By failing

to do so, Nguyen waived any complaint that the indictment failed to allege recklessness as required

by Article 21.15. See id. Therefore, Nguyen also waived any complaint that the indictment was

insufficient to support the trial court’s submission of recklessness to the jury. See id.; Rodriguez

v. State, 799 S.W.2d 301, 303 (Tex. Crim. App. 1990); Studer v. State, 799 S.W.2d 263, 273 (Tex.

Crim. App. 1990).

        D.     The Issues of Whether Nguyen Acted Intentionally or Knowingly and Whether
               He Used a Deadly Weapon Were Properly Submitted to the Jury

               1.      Introduction and Standard of Review

        In his fourth point of error, Nguyen contends that the trial court erred in submitting

aggravated assault to the jury based on intentional or knowing conduct because the indictment

alleges that Nguyen “did then and there intentionally, knowingly, or recklessly cause bodily injury

to MICHAEL JACOB WILLETT by driving recklessly causing MICHAEL JACOB WILLETT to

crash his motorcycle.” (Emphasis added). Nguyen argues that by drafting the indictment in this

way, the State limited itself to proving aggravated assault with a deadly weapon by recklessness

only.
                                                13
        Similarly, Nguyen alleges that the trial court erred in submitting the statutory definition of

deadly weapon because it allowed the jury to find that his vehicle was “capable of causing death

or serious bodily injury” in its “intended use,” and one cannot recklessly intend to use an object.

Consequently, he alleges that, by submitting aggravated assault based on intentional or knowing

conduct, and by submitting the deadly-weapon allegation to the jury in this case, the trial court

impermissibly expanded the scope of the indictment to allow conviction for offenses not alleged

in the indictment.

       When reviewing claimed charge error, we first determine whether charge error occurred.

Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). If no error occurred, a harm analysis is

not required. Id. at 26.

               2.      The Trial Court Did Not Err in Submitting Aggravated Assault with a
                       Deadly Weapon By Intentional or Knowing Conduct in the Jury
                       Charge

       As noted, Nguyen alleges that the State was limited to establishing this offense by

recklessness due to the way it drafted the indictment. Therefore, he concludes, the trial court erred

in submitting the theories of intentional and knowing conduct to the jury. Essentially, he alleges

that, by allowing the jury to convict him of intentional or knowing aggravated assault with a deadly

weapon, the trial court impermissibly expanded the scope of the indictment to allow for conviction

of offenses not alleged in the State’s indictment. Yet, even if we assume that the State limited




                                                 14
itself to proof of aggravated assault with a deadly weapon by reckless conduct, the trial court did

not err in submitting the intentional and knowing alternatives to the jury.5

         In Reed v. State, the Court of Criminal Appeals addressed the mirror image of the facts in

this case. Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003). In Reed, “[t]he indictment

charged appellant only with intentionally and knowingly causing bodily injury to another and using

or exhibiting a deadly weapon during the assault,” but the charge allowed the jury to convict

appellant if it found that he “intentionally, knowingly, or recklessly caused the bodily injury.” Id.

at 264, 261. The Court of Criminal Appeals held that the trial court erred because it “improperly

broadened the indictment by including ‘recklessly’ in the jury instructions when the indictment

alleged ‘intentionally’ and ‘knowingly.’” Id. at 262, 265. Although the facts in Reed are

distinguishable from the present case, the reasoning in that case leads us to conclude that the trial

court did not err in this case.

         By allowing a jury to convict for aggravated assault with a deadly weapon based on

reckless conduct, when only intentional or knowing conduct is alleged in the indictment, a trial

court allows the jury to convict on less proof than that required by the indictment. Thus, when the

trial court included the lower mental state in the charge in Reed, it impermissibly broadened the

indictment. Yet, as we noted previously, “[p]roof of a higher degree of culpability than that

charged constitutes proof of the culpability charged.”                 TEX. PENAL CODE ANN. § 6.02(e);


5
 Contrary to Nguyen’s argument, it could also be argued that the term “by driving recklessly” was merely the manner
and means by which Nguyen “did then and there intentionally, knowingly, or recklessly cause bodily injury to
MICHAEL JACOB WILLETT” and not an additional mental-state allegation that eliminated its ability to convict him
for intentional or knowing aggravated assault. However, because we decide against Nguyen on other grounds, we
need not decide this issue. Rather, we will assume, without deciding, that the State was limited to proving his guilt
by recklessness only.
                                                         15
McKinney, 12 S.W.3d at 583–84. Accordingly, even if we assume that the indictment in this case

only alleged reckless conduct, whereas the charge allowed conviction for intentional, knowing, or

reckless conduct, the trial court did not broaden the indictment because it did not allow the State

to convict Nguyen on less proof than was required by the indictment. Thus, while the specific

holding in Reed does not address the fact situation in this case, the reasoning behind that holding

supports the conclusion that the trial court did not err in submitting the intentional and knowing

theories in the jury charge here.6

                  3.       The Trial Court Did Not Err in Submitting the Statutory Definition of
                           A Deadly Weapon in the Jury Charge

         Nguyen next argues that, because the phrase “by driving recklessly” limited the State to

proof of aggravated assault based on reckless conduct only, the trial court likewise erred in

submitting the statutory definition of “deadly weapon” as “anything that in the manner of its use



6
 The Court of Criminal Appeals confirmed that the reason the charge in Reed was improper was because it allowed
the State to convict based on a different mental state than that alleged in the indictment, not because it allowed
conviction of a different offense than that alleged in the indictment:
         Although appellant was charged with intentionally and knowingly shooting Anita Gaitlin, the jury
         instructions allowed him to be convicted for recklessly disregarding the risk that one of the shots he
         fired at Robinson may have hit someone else. Therefore, the jury instructions expanded the
         indictment. It is possible that the jury found appellant guilty of recklessly causing the bodily injury,
         which is conduct that was not alleged in the indictment.
                   We are not holding that appellant was charged with a different or separate offense than that
         which he was possibly convicted of, rather we are saying that either the indictment should have
         accurately listed the applicable mental states or the charge should have limited the jury instructions
         to the mental states alleged in the indictment.
See Reed, 117 S.W.3d at 265.
         A conviction for aggravated assault with a deadly weapon is a second degree felony regardless of whether
intentional, knowing, or reckless conduct is alleged and proved; thus, the jury charge did not allow for conviction of
an offense not alleged in the indictment. See TEX. PENAL CODE ANN. § 22.02(b) (West 2011). Because the charge
required more proof to convict for intentional and knowing conduct, there was no impermissible expansion of the
indictment in this case even if we assume that the indictment only alleged recklessness. We express no opinion on
whether Reed would apply if a different degree of offense were created by proof of intentional or knowing conduct
when only recklessness was alleged in the indictment.
                                                         16
or intended use is capable of causing death or serious bodily injury.” See TEX. PENAL CODE ANN.

§ 1.07(a)(17)(B). Instead, he argues, the trial court should have eliminated the language “or

intended use” from the statutory definition given in the charge. Nevertheless, for the reasons stated

previously, even if we assume that the State was limited to proving Nguyen’s guilt by recklessness,

the inclusion of intent did not broaden the scope of the indictment because it did not allow the jury

to convict on less proof than that required to prove what the State alleged in the indictment.

Accordingly, the trial court did not err in including the statutory definition of “deadly weapon” in

the jury charge.

       E.      Nguyen Was Not Entitled to an Instruction on the Lesser-Included Offense of
               Assault

               1.      Standard of Review

       In Nguyen’s fifth point of error, he contends that the trial court erred by failing to submit

a jury instruction for the lesser-included offense of simple assault causing bodily injury.

       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. ANN. art. 37.09(1), (4) (West 2006). Under this statute, an offense is a

lesser-included offense of the charged offense


                                                 17
        if the indictment for the greater-inclusive offense either: 1) alleges all of the
        elements of the lesser-included offense, or 2) alleges elements plus facts (including
        descriptive averments, such as non-statutory manner and means, that are alleged
        for purposes of providing notice) from which all of the elements of the lesser-
        included offense may be deduced.

Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g) (per curiam).

        We apply a two-pronged analysis to determine whether an instruction on a lesser-included

offense should be included in the jury charge. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim.

App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Hall v. State, 225

S.W.3d 524, 535–36 (Tex. Crim. App. 2007). In the first prong, we compare the elements of the

offense as charged in the indictment or information with the elements of the asserted lesser-

included offense.7 Meru, 414 S.W.3d at 162; Hall, 225 S.W.3d at 535–36. This first prong is a

question of law and does not depend on evidence adduced at trial. Hall, 225 S.W.3d at 535.

        The second prong requires that the record contain some affirmative evidence that would

permit a jury rationally to find that, if a defendant is guilty, he is guilty only of the lesser-included

offense. See Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009). The evidence must

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

Wesbrook v. State, 29 S.W.3d 103, 113–14 (Tex. Crim. App. 2000). Anything more than a scintilla

of evidence is sufficient to entitle a defendant to an instruction on the lesser charge. Ferrel v.

State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001). However, if a defendant either presents

evidence that he committed no offense or presents no evidence and there is no affirmative evidence


7
 Under the cognate-pleadings approach, if the elements of the lesser-included offense can be deduced from facts
alleged in the indictment, they need not be pled in the indictment. Hall, 225 S.W.3d at 535. We use the functional-
equivalence concept to determine whether the elements of the lesser offense are “functionally the same or less than
those required to prove the charged offense.” McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010).
                                                        18
otherwise showing he is guilty only of a lesser-included offense, then a charge on a lesser-included

offense is not required. Bignall v. State, 887 S.W.2d 21, 22–24 (Tex. Crim. App. 1994); Aguilar

v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).

               2.      Application

        Under the first prong of the review, we must determine whether simple assault is a lesser-

included offense of aggravated assault with a deadly weapon. Aggravated assault requires proof

that the defendant committed the offense of simple assault—intentionally, knowingly, or

recklessly causing bodily injury to another—as well as proof of an aggravating factor, such as the

use or exhibition of a deadly weapon. TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2). We

find, and the State concedes, that simple assault meets the first prong of the lesser-included offense

test.

        Under the second prong, we must determine if there is some affirmative evidence that

would permit the jury to find that Nguyen was only guilty of simple assault. Here, the indictment

alleged that, by “driving recklessly,” Nguyen “intentionally, knowingly, or recklessly” injured

Willett by causing him to crash his motorcycle and that he used his car as a deadly weapon in the

course of committing the assault. In order to be entitled to an instruction on simple assault, there

must have been evidence that the car was “not capable of causing death or serious bodily injury”

in the way Nguyen used it or intended to use it in this case.             TEX. PENAL CODE ANN.

§ 1.07(a)(17)(B). In other words, there must have been affirmative evidence by which the jury

could conclude that Nguyen’s driving caused Willett to crash his motorcycle, but that the manner

in which Nguyen drove the car was not capable of inflicting serious bodily injury or death. See

                                                 19
TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2); Schmidt, 278 S.W.3d at 362. There is no such

affirmative evidence in the record.

       Although Evans testified to several possible scenarios to explain what happened and how

Nguyen and Willett could have been driving, he also admitted that he was unable to discern which

of the possible scenarios actually happened and which did not. Therefore, his testimony was mere

speculation. See Cavazos v. State, 382 S.W.3d 377, 385 (Tex. 2012) (speculation insufficient to

meet threshold for lesser-included offense). Moreover, none of the testimony by the State’s

witnesses could support a reasonable inference that Nguyen’s car was not used as a deadly weapon,

and even if the jury were to disbelieve their testimony, that alone would not have entitled Nguyen

to a lesser-offense instruction. See Schmidt, 278 S.W.3d at 362. Accordingly, Nguyen was not

entitled to an instruction on simple assault. We overrule this point of error.

       F.      Nguyen Failed to Preserve Error Regarding a Misleading Theory and the
               Trial Court’s Comment on the Evidence

       The jury charge instructed the jury that the elements of the charged offense were:

       1.      On or about the 24th day of October, 2012;
       2.      in Mclennan County, Texas;
       3.      THIEN QUOC NGUYEN;
       4.      did then and there intentionally, knowingly or recklessly;
       5.      cause bodily injury to MICHAEL JACOB WILLETT;
       6.      by driving recklessly causing MICHAEL JACOB WILLETT to crash his
               motorcycle;
       7.      and the Defendant did then and there use or exhibit a deadly weapon, to-
               wit: an automobile, during the commission of said assault.

       In his sixth point of error, Nguyen argues that the trial court improperly commented on the

weight of the evidence by submitting the sixth element: “by driving recklessly causing MICHAEL

JACOB WILLETT to crash his motorcycle.” He argues that the challenged language “effectively
                                                 20
linked the so-called motorcycle crash to [Nguyen] even though the evidence showed the ‘crash’

was exclusively the result of [Willett’s] decision to lay down his motorcycle.” Nguyen then cites

to cases holding that (1) “[a] suggestion in a jury charge that certain evidence is true or untrue is a

comment on the weight of the evidence,” see Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim. App.

1988); (2) a trial court impermissibly comments on the State’s case when it assumes the truth of a

fact that must be proved by the State, see Marlow v. State, 537 S.W.2d 8, 9 (Tex. Crim. App.

1976); and (3) “[t]he jury charge must not ‘improperly focus the jury on the type of evidence that

would support a finding’ sought by the State,” see Kirsch v. State, 357 S.W.3d 645, 652 (Tex.

Crim. App. 2012).

       Nguyen’s brief does not clearly describe the nature of his complaint regarding the charge.

On the one hand, his argument could be interpreted as a singular complaint that the charge

language is a comment on the weight of the evidence because the indictment did not sufficiently

allege the sixth element of the offense. On the other hand, his argument could be interpreted as a

two-fold complaint (1) that the quoted language should not have been in the charge because the

indictment did not sufficiently allege the sixth element and (2) that, even if the indictment were

sufficient to allege that element, the language used is a comment on the weight of the evidence.

When resolving a claim of jury charge error, we apply the two-part analysis detailed in Almanza

v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Yet, regardless of how Nguyen’s argument is

read, the first step of the Almanza analysis requires us to determine whether there was an error in

the charge, and the trial court’s charge language in this case was not erroneous.



                                                  21
       “A trial judge improperly comments on the weight of the evidence if he makes a statement

that (1) implies approval of the State’s argument; (2) indicates any disbelief in the defense position;

or (3) diminishes the credibility of the defense’s approach to the case.” Joung Youn Kim v. State,

331 S.W.3d 156, 160 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (plurality op.) (citing

Clark v. State, 878 S.W.2d 224, 226 (Tex. App.—Dallas 1994, no pet.)). If we read Nguyen’s

argument as making a singular complaint, the argument is meritless because the indictment clearly

alleged that element. If we consider it as a two-fold complaint, the argument likewise fails because

the charge language was not presented as a demonstrative statement from the court to the jury.

       The problem with Nguyen’s argument is that it misconstrues the nature of the charge

language. The charge language was not presented to the jury as an affirmative statement of fact,

but as an element that the jury had to find proven beyond a reasonable doubt in order to find

Nguyen guilty. In other words, rather than assuming that Nguyen caused Willett to crash his

motorcycle, the charge language instructed the jury that, in order to find Nguyen guilty, they had

to find that the State proved, beyond a reasonable doubt, that Nguyen caused Willett to crash his

motorcycle. Accordingly, the charge language did not “(1) impl[y] approval of the State’s

argument; (2) indicat[e] any disbelief in the defense position; or (3) diminish the credibility of the

defense’s approach to the case.” Joung Youn Kim, 331 S.W.3d at 160. Therefore, the charge

language was not an impermissible comment on the weight of the evidence.

       We overrule this point of error.




                                                  22
           G.       The Trial Court Did Not Err in Dismissing Five Potential Jurors for Cause

           In his seventh point of error, Nguyen contends that the trial court improperly granted the

State’s challenge for cause of five veniremembers.8

                    1.       Introduction

           Before trial, the State performed criminal history background checks on the potential

jurors. During voir dire, the State asked the panel, “[H]ave you, a family member, or a close friend

ever been arrested for anything more than a traffic ticket[?]” After completing its voir dire

questioning, the State challenged at least five of the veniremembers for cause on the basis that they

had failed to disclose they had previously been arrested. The State argued that these jurors, by

failing to disclose that they had been arrested in the past, were not giving truthful answers to the

voir dire questions.9 Nguyen objected to the challenges, arguing that failure to disclose a prior

arrest is not one of the grounds for cause listed in Article 35.16 of the Code of Criminal Procedure.

The trial court agreed with the State and dismissed the challenged veniremembers.

           On appeal, Nguyen argues that the trial court applied the wrong legal standard in sustaining

the State’s challenges because failure to disclose a prior arrest is not one of the grounds for cause

listed in Article 35.16 of the Code of Criminal Procedure. We disagree.

                    2.       Standard of Review

           To show error in the trial court’s grant of the State’s challenges for cause, Nguyen must

demonstrate that either (1) the trial court applied the wrong legal standard in sustaining the


8
    Nguyen does not specify the juror numbers to whom his challenge pertains.
9
 The State argued, “[I]f he’s not telling us the truth when the question is asked, ‘What have you been -- have you, a
close family member, or close friend been arrested,’ if he’s sitting there silently, he is not telling us the truth.”
                                                          23
challenges or (2) the trial court abused its discretion in applying the correct legal standard. Jones

v. State, 982 S.W.2d 386, 388 (Tex. Crim. App. 1998). If the trial court applied the correct legal

standard, “[w]e examine the record as a whole to determine whether there is support for the trial

court’s decision, and, in doing so, we give great deference to the trial court.” Penry v. State, 903

S.W.2d 715, 728 (Tex. Crim. App. 1995) (per curiam) (citing Satterwhite v. State, 858 S.W.2d

412, 415 (Tex. Crim. App. 1993) (per curiam)). We accord the trial court such deference because

only the trial court is able to consider such factors as demeanor and tone of voice that are not

apparent when reviewing the appellate record. Penry, 903 S.W.2d at 728 (citing Mooney v. State,

817 S.W.2d 693, 701 (Tex. Crim. App. 1991)); see also Howard v. State, 941 S.W.2d 102, 115

(Tex. Crim. App. 1996), overruled on other grounds by Easley v. State, 424 S.W.3d 535 (Tex.

Crim. App. 2014) (stating that trial court “is in a unique position to measure the venireperson’s

sincerity, comprehension[,] and demeanor”).

               3.      Application

       “A challenge for cause can be properly asserted on grounds which are not specifically

enumerated in Article 35.16, V.A.C.C.P., where such a challenge is based on facts that show that

the prospective juror would be ‘incapable or unfit to serve on the jury,’” Mason v. State, 905

S.W.2d 570, 577 (Tex. Crim. App. 1995), or refuses to follow the statutory scheme and truthfully

answer the questions propounded to him. See Wainwright v. Witt, 469 U.S. 412, 422 (1985);

Allridge v. State, 850 S.W.2d 471, 484 (Tex. Crim. App. 1991) (venireman preoccupied with

business); Nichols v. State, 754 S.W.2d 185, 193 (Tex. Crim. App. 1988), overruled on other

grounds by Harris v. State, 784 S.W.2d 5, 19 (Tex. Crim. App. 1989) (venireman preoccupied

                                                 24
with personal problems). Also, challenges not based upon enumerated statutory grounds are

ordinarily addressed to the sound discretion of the trial judge. Mason, 905 S.W.2d at 577; Allridge,

850 S.W.2d at 484–85; Nichols, 754 S.W.2d at 193.

       Here, the five challenged veniremembers failed to truthfully answer questions regarding a

veniremember’s, family member’s, or close friend’s previous arrest experiences.             It is not

unreasonable to believe that someone who has been arrested might be sympathetic to the plight of

someone else who has been arrested. Accordingly, the State’s questions in this case were proper

because they were designed to determine the existence of a potential challenge for cause based on

a “bias or prejudice in favor of or against the defendant.” See TEX. CODE CRIM. PROC. ANN. art.

35.16(a)(9) (West 2006). Likewise, it is not unreasonable to conclude that a veniremember who

refuses to truthfully answer such proper questions will also refuse to follow the law and the

instructions of the trial court during the trial. Accordingly, the trial court was well within its

discretion to sustain the State’s challenges for cause and dismiss the jurors. See TEX. CODE CRIM.

PROC. ANN. art. 35.02 (West 2006); Wainwright, 469 U.S. at 422; Allridge, 850 S.W.2d at 484–

85; Nichols, 754 S.W.2d at 193–94. We overrule this point of error.

       H.      Limiting Nguyen’s Cross-Examination of Willett Was Harmless Error

       In his final point of error, Nguyen contends that the trial court improperly limited his cross-

examination of Willett by prohibiting questions regarding the pending civil lawsuit filed by Willett

against Nguyen.

       Trial courts have discretion in admitting or excluding evidence during a trial. On appeal,

we review a trial court’s decision to limit cross-examination for an abuse of discretion. See Sansom

                                                 25
v. State, 292 S.W.3d 112, 118 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). The scope of

cross-examination in Texas is broad and extends to facts that may affect the witness’ credibility.

See Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996); see also TEX. R. EVID. 611(b).

A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose

a motive, bias, or interest for the witness to testify. Carroll, 916 S.W.2d at 497. However, the

scope of appropriate cross-examination is not unlimited, and the trial court generally has “wide

discretion in limiting the scope and extent of cross-examination.” Hammer v. State, 296 S.W.3d

555, 561 (Tex. Crim. App. 2009); Carroll, 916 S.W.2d at 497–98. For example, a trial court may

properly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the

issues, harm to the witness, and repetitive or marginally relevant interrogation. Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); Carroll, 916 S.W.2d at 498.

       The fact that a witness has filed a civil suit against a defendant arising from the same

incident for which the defendant is on trial is generally admissible as tending to show interest

and/or bias on the part of the witness. See Cox v. State, 523 S.W.2d 695, 700 (Tex. Crim. App.

1975). Under certain circumstances, evidence of the complainant’s civil suit against a third party

may also be relevant to show bias. See Shelby v. State, 819 S.W.2d 544, 545 (Tex. Crim. App.

1991) (holding trial court erred by refusing to allow cross-examination regarding civil suit);

Furgison v. State, 800 S.W.2d 587, 589–91 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d)

(holding same). The relevance of such evidence is derived from its impeachment value to show

motive to give false testimony based on a witness’ desire to recover damages or other relief. See

Palermo v. State, 992 S.W.2d 691, 698 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

                                               26
       During Nguyen’s cross-examination of Willett, he asked, “Now, we’ve got this proceeding

going on. There is also a lawsuit involving this, is there not?” Willett answered, “Correct.” A

discussion occurred at the bench, wherein the State objected, arguing that the pending civil suit

Willett filed against Nguyen regarding his injuries from this incident was irrelevant. Nguyen made

an offer of proof, questioning Willett outside the presence of the jury:

              Q.      (BY [COUNSEL FOR NGUYEN]) Mr. Willett, I think the last
       question I asked you was, there is a pending lawsuit on this matter. Correct?

               A.      Correct.

             Q.     Okay. You have filed a lawsuit seeking recovery of damages against
       Mr. Nguyen as a result of this. Is that right?

               A.      Correct.

               Q.      I think you had insurance on your motorcycle at the time, did you
       not?

               A.      I did.

               Q.    Okay. But is it fair -- I mean, your coverage did not include any
       kind of damage to you or your bike. Is that right?

               A.      Correct.

              Q.     I think you actually called your insurance company at some point to
       make the claim, and you were told that you didn’t have coverage for that. Is that
       right?

               A.      Correct.

               Q.      Okay. When was the lawsuit filed? Do you know?

               A.      I don’t recall.

               Q.      And who is the lawyer you have?

                                                 27
                 A.       John Lewis.

                 ....

                Q.     (BY [COUNSEL FOR NGUYEN]) So that’s not something -- I
        mean, your insurance company didn’t file suit to try to collect damages. You
        actually went and talked to Mr. Lewis and got a lawyer and filed a lawsuit. Is that
        right?

                 A.       Correct.

The trial court sustained the State’s objection and prevented any further questioning regarding the

civil lawsuit.

        Although Nguyen’s question and Willett’s answer established that “[t]here is a lawsuit

involving this,” it is not clear from this exchange that Willett had filed a civil suit against Nguyen

and was asking the civil court to award him money damages for the injuries and property damages

he sustained in the incident with Nguyen. Based on these facts, it could be argued that Willett had

an economic motive to shade his testimony during the criminal trial against Nguyen. Moreover,

such cross-examination would not have confused the issues or harmed or harassed Willett, was not

repetitive, and was more than marginally relevant to show bias. Therefore, the trial court erred in

prohibiting Nguyen from cross-examining Willett on the specific nature of the civil lawsuit and

the fact that he was seeking monetary damages from Nguyen.10 See Cox, 523 S.W.2d at 700.

        Having concluded that the trial court erred in this ruling, we must reverse the judgment

unless we can determine beyond a reasonable doubt that the error did not contribute to the

conviction. See TEX. R. APP. P. 44.2(a). When making such a determination, we must first assume


10
  Though properly excluded, Nguyen does not argue that the trial court erred in excluding Willett’s insurance-related
testimony.
                                                         28
that the damaging potential of the cross-examination was fully realized. See Van Arsdall, 475 U.S.

at 684. With that assumption in mind, we review the entire record and consider the following

factors: (1) the importance of the witness’s testimony in the prosecution’s case, (2) whether the

testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting

the testimony of the witness on material points, (4) the extent of cross-examination otherwise

permitted, and (5) the overall strength of the prosecution’s case. Id. Finally, we then determine

whether the error was harmless beyond a reasonable doubt. Id.

       Here, Willett’s testimony is very important to the State’s case, as he was the alleged victim

and the witness closest to Nguyen’s car at the time of the crash. However, the State’s case against

Nguyen was very strong because Willett’s testimony and recollection of the events was

corroborated by the testimony of Bradford, David, and Boots. Nguyen was otherwise allowed a

broad and extensive cross-examination of Willett. Based on an examination of the record in light

of these factors, we find that the trial court’s error was harmless beyond a reasonable doubt.

Accordingly, we overrule this point of error and affirm the trial court’s judgment.

III.   Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment.



                                             Ralph K. Burgess
                                             Justice

Date Submitted:       April 5, 2016
Date Decided:         November 9, 2016

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