                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00160-CR

PAUL AMARO,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 220th District Court
                             Hamilton County, Texas
                             Trial Court No. CR 07489


                                      OPINION


      A jury convicted Paul Amaro of aggravated assault on a public servant and

assessed his punishment at thirty-six years in prison. In two issues, Amaro challenges

the trial court’s failure to grant his requested jury instructions on (1) deadly conduct as

a lesser-included offense; and (2) the statutory defense of consent. We affirm.

                              FACTUAL BACKGROUND

      When his former girlfriend Paula Jean Jones stopped answering his telephone

calls, Amaro left a message stating, “[T]his was real easy, all you had to do is answer
the phone.” While listening to this message, both Jones and her friend Billy Mahan

heard Amaro loading a shotgun in the background of the message. Mahan called

police. Officer Abel Rios arrived at Jones’s home and spoke to Amaro on the telephone

several times.   In one conversation, Amaro stated that he was coming over and

something was going to happen. Amaro was belligerent and cursing. Rios advised

Amaro that he would be arrested at gunpoint if he came to the house.

       As Amaro pulled into the driveway, Rios unholstered his weapon. He saw

Amaro pointing a rifle directly at him. Rios drew his weapon and ordered Amaro to

put the weapon down. Amaro was leaning toward the passenger window. Rios sought

cover. He then observed Amaro tracking him with the rifle. Amaro subsequently

began moving the rifle back and forth between his own chin and at Rios.

       Other officers arrived at the scene and a standoff ensued. Rios heard Amaro

state that he wanted police to kill him, i.e., suicide by cop. Officer Kyle Matthews

observed Amaro place his vehicle in reverse several times, rev the engine, threaten to

leave, yell, say that he was not giving up, and say that he was not going back to prison.

Amaro was eventually arrested. Deputy Alan Kirkland recovered a 30-30 lever action

rifle from Amaro’s vehicle. The chamber contained one round and the hammer was

pulled back; the rifle was ready to fire. Kirkland removed five rounds from the rifle.

       Amaro testified in his own defense. He claimed that he kept the rifle in his truck

because it was hunting season. He denied loading the rifle while leaving the message

for Jones, pointing the rifle at Rios, intentionally threatening Rios, or tracking Rios with

the rifle. He testified that Rios’s weapon was drawn before he had stopped his vehicle.


Amaro v. State                                                                        Page 2
Rios told Amaro to exit the vehicle. Amaro stayed seated and told Rios to put away his

weapon. Amaro sat in his vehicle for a few minutes before showing the rifle to Rios and

stating, “I have one too.” Amaro placed the rifle in the seat, with the muzzle on the

dashboard. He claimed that he could not have pointed the rifle in the manner described

by Rios because he is of short stature, is left-handed, and would have had to adjust the

seat. He admitted placing the rifle to his chin because he had lost the “love of his life.”

                       INSTRUCTION ON DEADLY CONDUCT

       In his first issue, Amaro challenges the denial of his request for a jury instruction

on deadly conduct as a lesser-included offense.

       In determining whether to submit a lesser included charge, the court must

conclude that: (1) the requested charge is for a lesser-included offense of the charged

offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty of

only the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006);

Pierce v. State, 234 S.W.3d 265, 269 (Tex. App.—Waco 2007, pet. ref’d). We determine

the first issue from the pleadings. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.

2007); Pierce, 234 S.W.3d at 269. We must compare the statutory elements of the offense

as set out in the indictment to the elements of the requested lesser offense. See Hall, 225

S.W.3d at 535-36; Pierce, 234 S.W.3d at 269. This issue is a legal question and does not

depend on the evidence presented at trial. See Hall, 225 S.W.3d at 535; Pierce, 234 S.W.3d

at 269. If the first requirement is met, we determine the second issue by reviewing the

evidence to determine if there is any evidence that, if Amaro is guilty, he is guilty of

only the lesser offense. See Hall, 225 S.W.3d at 536; Pierce, 234 S.W.3d at 269.


Amaro v. State                                                                         Page 3
       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 (Vernon 2006).

       The indictment alleges the following statutory elements of aggravated assault on

a public servant: (1) Amaro; (2) intentionally or knowingly; (3) threatened Rios with

imminent bodily injury; (4) while exhibiting a deadly weapon; and (5) knew that Rios

was a public servant lawfully discharging an official duty. See TEX. PEN. CODE ANN. §§

22.01(a)(2), 22.02(a)(2), (b)(2)(B), (c) (Vernon Supp. 2008). The statutory elements of

deadly conduct are: (1) a person (2) recklessly (3) engages in conduct that places another

in imminent danger of serious bodily injury. TEX. PEN. CODE ANN. § 22.05(a) (Vernon

2003). Recklessness and danger are presumed if the actor knowingly pointed a firearm

at or in the direction of another. Id. at § 22.05(c).

       Amaro cites Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985) and Isaac v. State,

167 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) for the proposition

that deadly conduct is a lesser-included offense of aggravated assault under the

circumstances of this case.




Amaro v. State                                                                         Page 4
       In Bell, the Court of Criminal Appeals found reckless conduct1 to be a lesser-

included offense of aggravated assault by use of a deadly weapon under article 39.07(1)

“because it is established by proof of the same facts required to establish the

commission of aggravated assault by the use of a deadly weapon:”

       Patently, threatening another with imminent bodily injury is engaging in
       conduct. When that threat is accomplished by the use of a deadly
       weapon, by definition the victim is “exposed” to the deadly character of
       the weapon and the inherent risk of serious bodily injury. The danger of
       serious bodily injury is necessarily established when a deadly weapon is
       used in the commission of an offense. It follows, therefore, that proof of
       threatening another with imminent bodily injury by the use of a deadly
       weapon constitutes proof of engaging in conduct that places another in
       imminent danger of serious bodily injury.

Bell, 693 S.W.2d at 438-39. Following Bell, Isaac also held that deadly conduct is a lesser-

included offense of aggravated assault. See Isaac, 167 S.W.3d at 474-45.

       The State distinguishes Bell and Isaac on grounds that neither involved

aggravated assault on a public servant. However, deadly conduct can be a lesser-

included offense if it is established by proof of the same or less than all the facts required

to establish aggravated assault on a public servant. TEX. CODE CRIM. PROC. ANN. art.

37.09(1). The reasoning of Bell and Isaac applies.

       Citing Miller v. State, 86 S.W.3d 663 (Tex. App.—Amarillo 2002, pet. ref’d), the

State further distinguishes Bell, where the indictment alleged use of a deadly weapon,

and Isaac, where the indictment alleged use and exhibition, from the present case, where




1       Reckless conduct is the statutory predecessor to deadly conduct. See Act of May 24, 1973, 63d
Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 920 (amended 1993) (current version at TEX. PEN. CODE
ANN. § 22.05 (Vernon 2003)).


Amaro v. State                                                                                   Page 5
the indictment alleged only exhibition. In Miller, the Amarillo Court held that deadly

conduct is not a lesser-included offense of aggravated assault on a public servant:

       Whereas the indictment in Bell charged the defendant in that case with
       committing the offense of aggravated assault by “using” a deadly weapon,
       the indictment in appellant’s case charged appellant with committing the
       offense by “using or exhibiting” a deadly weapon. Thus, proving the
       offense as alleged in the indictment does not require proof that appellant
       “used” a deadly weapon; proof that appellant “exhibited” a deadly
       weapon in the commission of the offense would suffice. The difference is
       dispositive, as it does not necessarily follow that the danger of serious
       bodily injury is established when a deadly weapon is “exhibited” in the
       commission of the offense as opposed to being “used.”

Miller, 86 S.W.3d at 666-67 (emphasis added).

       Miller suggests that a person cannot be placed in imminent danger of serious

bodily injury by mere exhibition of a deadly weapon. See id. However, merely pointing

a firearm in another’s direction can place that person in imminent danger of serious

bodily injury. See TEX. PEN. CODE ANN § 22.05(c); see also Hayes v. State, No. 05-06-00980-

CR, 2008 Tex. App. LEXIS 557, at *1-2, 6 (Tex. App.—Dallas Jan. 25, 2008, no pet.) (not

designated for publication) (Evidence supported deadly conduct where defendant

pointed a firearm at or in the direction of the complainant); Brown v. State, No. 02-03-

00289-CR, 2004 Tex. App. LEXIS 8048, at *11-15 (Tex. App.—Fort Worth Aug. 30, 2004,

no pet.) (not designated for publication) (Evidence supported deadly conduct where

defendant pointed a semiautomatic firearm at or in the direction of the complainant).

Pointing a weapon at another also constitutes exhibition. See Coleman v. State, 145

S.W.3d 649, 652 (Tex. Crim. App. 2004) (Exhibition “requires a weapon to be

‘consciously shown, displayed, or presented to be viewed.’”); see also see Morales v. State,



Amaro v. State                                                                        Page 6
No. 11-03-00087-CR, 2004 Tex. App. LEXIS 3602, at *8 (Tex. App.—Eastland Apr. 22,

2004, pet. ref’d) (not designated for publication) (Evidence supported aggravated

assault on a public servant where defendant “intentionally and knowingly threatened

both officers with imminent bodily injury when he pointed his gun at them.”). We do

not agree that danger of serious bodily injury can be established only by use of a deadly

weapon, but not exhibition of a deadly weapon.

       Following Bell, we hold that deadly conduct is a lesser-included offense of

aggravated assault on a public servant under the circumstances of this case because it is

established by proof of the same facts required to establish the commission of

aggravated assault on a public servant by exhibiting a deadly weapon. See Bell, 693

S.W.2d at 438-39; see also Girdy v. State, 213 S.W.3d 315, 319 (Tex. Crim. App. 2006) (“If

as here, the prosecution, in proving the elements of one charged offense, also necessarily

proves another charged offense, then that other offense is a lesser-included offense.”);

TEX. CODE CRIM. PROC. ANN. art. 37.09(1).

       Under step two of the analysis, Amaro is entitled to a deadly conduct instruction

if “‘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 (emphasis added). “[A]nything more than a scintilla of evidence may be

sufficient to entitle a defendant to a lesser charge.” Id. “[T]he evidence must establish

the lesser-included offense as ‘a valid, rational alternative to the charged offense.’” Id.

       Amaro contends that the record contains some evidence that he did not intend to

threaten Rios, but recklessly engaged in conduct that placed Rios in imminent danger of


Amaro v. State                                                                         Page 7
serious bodily injury. In so arguing, he points to Rios’s testimony that the rifle was

pointed “at me or in my general direction.” He also points to his own testimony in which

he denied pointing the rifle at Rios or intentionally threatening Rios and explained

showing the rifle to Rios only after Rios drew his weapon, placing the rifle in the front

seat, and coming to the house with the sole intent of discussing some issues with Jones.

       The record, however, supports intentional and knowing conduct, not

recklessness.    See TEX. PEN. CODE ANN. § 6.03(a) (Vernon 2003) (A person acts

intentionally when it is his conscious objective or desire to engage in the conduct or

cause the result.”); see also id. at § 6.03(b) (“A person acts knowingly when he is aware of

the nature of his conduct or that the circumstances exist.”); Id. at § 6.03(c) (“A person

acts recklessly when he is aware of but consciously disregards a substantial and

unjustifiable risk that the circumstances exist or the result will occur.”). Amaro had

threatened that something was going to happen and was heard loading the rifle. True

to his word, Amaro arrived at the home with a loaded rifle, even though he had been

warned that Rios was armed. Rios’s testimony that Amaro pointed the rifle directly at

him or in his general direction supports aggravated assault. See St. Clair v. State, 26

S.W.3d 89, 97 (Tex. App.—Waco 2000, pet. ref’d) (Defendant threatened officer with

imminent bodily injury by aiming a vehicle in his direction); see also Robbins v. State, 145

S.W.3d 306, 314 (Tex. App.—El Paso 2004, pet. ref’d) (Evidence that defendant fired a

gun in the officer’s direction established aggravated assault). In fact, the jury certainly

could have questioned why the rifle was cocked and ready to fire.




Amaro v. State                                                                        Page 8
       Relying on Issac, Amaro maintains that his testimony is sufficient to raise the

issue of deadly conduct. In Isaac, the defendant admitted bringing a gun to his father's

barber shop, but claimed that he intended to merely scare his family and then kill

himself. See Isaac, 167 S.W.3d at 475. He denied pointing the gun at anyone and

testified that the gun discharged only after he was tackled by his stepbrother. Id. Isaac

admitted acting “foolishly,” but denied intending to hurt anyone other than himself. Id.

The Fourteenth Court held that Isaac’s testimony “provided some evidence from which

a jury could rationally find that, although [he] never intended to threaten his family

with imminent bodily injury (a necessary element of aggravated assault), he did

recklessly engage in conduct that placed his family in danger of serious bodily injury

(as required to prove deadly conduct).” Id.

       This conclusion, however, conflicts with the Court of Criminal Appeals’s holding

that “[a] defendant’s own testimony that he committed no offense, or testimony which

otherwise shows that no offense occurred at all, is not adequate to raise the issue of a

lesser-included offense.” Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).

Amaro’s testimony is not evidence that he is guilty of only deadly conduct. See id.; see

also Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994) (“If a defendant either

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

evidence otherwise showing he is guilty only of a lesser included offense, then a charge on a

lesser included offense is not required.”); Morales, 2004 Tex. App. LEXIS 3602, at *12 (“If

the jury had believed appellant’s testimony that he did not point his gun at the officers,

he would not have been guilty of either ‘deadly conduct’ or ‘aggravated assault.’”). The


Amaro v. State                                                                         Page 9
record contains no other evidence showing that Amaro is guilty only of deadly conduct.

See Hall, 225 S.W.3d at 536; see also Pierce, 234 S.W.3d at 269.

       In summary, because the second prong is not met, we conclude that Amaro was

not entitled to an instruction on deadly conduct. See Guzman, 188 S.W.3d at 188; see also

Pierce, 234 S.W.3d at 269. We overrule his first issue.

                               DEFENSIVE INSTRUCTION

       In his second issue, Amaro contends that he was entitled to an instruction on the

defense of consent because, as a police officer, Rios “knew the conduct was a risk of his

occupation” and knew that Amaro believed that Rios consented to the conduct.

       The victim’s effective consent or the actor’s reasonable belief that the victim

consented to the actor’s conduct is a defense to aggravated assault if the victim knew

the conduct was a risk of his occupation. TEX. PEN. CODE ANN. § 22.06(a)(2)(A) (Vernon

Supp. 2008). Amaro points to Rios’s testimony that he heard Amaro’s vehicle

approaching, was familiar with the risks of being a police officer, such as someone

pointing a gun at him, was wearing a ballistic vest, warned Amaro that he would be

arrested at gunpoint, and had unholstered his weapon upon Amaro’s arrival.

       Two courts have addressed section 22.06 in the context of public servants. In

Tanksley v. State, 656 S.W.2d 194 (Tex. Civ. App.—Austin 1983, no writ), Tanksley was

charged with aggravated assault by threatening to stab a jailer in the eye. See Tanksley,

656 S.W.2d at 195. The trial court denied Tanksley’s request for an instruction that the

jailer knew Tanksley’s conduct was a risk of his occupation, “‘by the nature of the




Amaro v. State                                                                    Page 10
jailer’s employment he consented as a matter of law to any assault as a risk of his

occupation.’” Id. The Austin Court held:

       There is no evidence that the jailer consented in fact to appellant’s
       conduct, whether by express words or by other means indicating an
       apparent consent. The provisions of § 22.06 quoted above do not define
       effective consent to mean engaging in an occupation having a risk of
       assault, as appellant apparently contends. Rather, the victim’s express or
       apparent assent to an accused’s conduct is effective as a defense if the
       victim knew that such conduct was a risk of his occupation. There being
       no assent by the jailer to the conduct of appellant in the present case, §
       22.06 was not applicable and appellant was not entitled to a requested
       instruction thereunder. Appellant does not contend that he reasonably
       believed the jailer consented to the assault.

Id. at 196-97.

       In Camp v. State, 13 S.W.3d 805 (Tex. App.—Eastland 2000, no pet.), the trial court

denied Camp’s request for an instruction that “it is a defense to a prosecution for

aggravated assault of a public servant that the victim of the aggravated assault

effectively consented to the actions of the defendant, or that the defendant reasonably

believed that the victim had consented to his actions.” Camp, 13 S.W.3d at 807. The

Eastland Court held:

       We agree with the holding in Tanksley that Section 22.06 should not be
       read to define “effective consent to mean engaging in an occupation
       having a risk of assault.” This would not be consistent with other
       provisions of the Penal Code which protect public servants who are
       discharging their official duties. We note that the opinion in Tanksley
       agreed that the public servant’s “express or apparent consent” would
       have been effective as a defense if he knew that such conduct was a risk of
       his occupation. As in Tanksley, there was no “express or apparent
       consent” by the public servants to appellant’s conduct in trying to ram
       their vehicles; consequently, it does not matter if they knew that such
       conduct was a risk of their occupation.




Amaro v. State                                                                       Page 11
       Each of the officers testified that they did not give “express consent” to
       appellant’s conduct, and there is no proof of “apparent consent” because
       there is no showing that appellant had a reasonable belief that the officers
       gave their consent to his conduct.

Id. at 807.

       We agree with Tanksley and Camp that “Section 22.06 should not be read to define

‘effective consent to mean engaging in an occupation having a risk of assault.’” Id; see

Tanksley, 656 S.W.2d at 196-97. Neither does the record contain any evidence suggesting

that Rios consented to Amaro’s conduct or that Amaro had a reasonable belief that Rios

consented to his conduct. We overrule issue two.

       The judgment is affirmed.




                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed May 6, 2009
Publish
[CRPM]




Amaro v. State                                                                        Page 12
