      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00174-CR



                                  James Allen Harris, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 09-147-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               James Allen Harris was convicted of two counts of aggravated assault after he

crashed his truck into two other vehicles, injuring two people. See Tex. Penal Code Ann. § 22.02(a)

(West 2011). During trial, Harris asked the court to instruct the jury that it could convict him of

the lesser-included offense of deadly conduct. See id. § 22.05(a) (West 2011). The court refused.

On appeal, Harris argues that the trial court erred by refusing his request. We affirm the conviction.


                      FACTUAL AND PROCEDURAL BACKGROUND

               On February 2, 2008, Harris crashed his truck into two other vehicles on Highway 183

in Williamson County. Deputy Sheriff Christopher Cox witnessed the crash. After aiding the

occupants of one of the vehicles Harris hit, Cox found Harris walking on the highway looking

“very lethargic” or “confused” as though he was suffering from a “severe medical condition or
an intoxication.” After the collisions Harris was taken to a hospital, where he tested positive for

Valium and Soma, two central-nervous-system depressants.

                The State initially charged Harris with two counts of intoxicated assault and two

counts of aggravated assault (one for each of the people whom Harris seriously injured), but before

trial it dropped the intoxicated assault charges. The parties proceeded to trial. The State called four

witnesses who testified to seeing Harris driving recklessly before the collisions. Three of these

witnesses also saw the actual collisions. Ernestina and Jose Segovia, who were in the second vehicle

that Harris hit, testified that they suffered serious injuries as a result of the collision.

                During the jury-charge conference, Harris asked the court to instruct the jury that

it could convict him of the lesser-included offense of deadly conduct. To support this request he

argued that deadly conduct is included within the proof necessary to establish aggravated assault.

The State conceded that point but argued that a lesser-included-offense instruction was nevertheless

inappropriate because, given the undisputed evidence that the Segovias suffered serious injuries,

the jury could not rationally find that Harris had committed only deadly conduct; it would either have

to convict him of aggravated assault or acquit him of all criminal responsibility. See Hall v. State,

225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007) (defendant entitled to lesser-included-offense

instruction if (1) lesser offense is included within proof necessary to establish charged offense and

(2) some evidence exists that would permit rational jury to find defendant guilty of only lesser

offense). Harris’s only response to the State’s argument was to reiterate that deadly conduct is

included within the proof necessary to establish aggravated assault. The court ultimately refused to




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give the lesser-included-offense instruction, and the jury found Harris guilty on both counts of

aggravated assault (one count for each of the Segovias). Harris appeals.


                                           DISCUSSION

                Harris argues that the trial court erred by refusing to instruct the jury that it could

convict him of the lesser-included offense of deadly conduct. Specifically, Harris contends that

the court erred because it relied on an “overruled” case, Garcia v. State, 92 S.W.3d 574 (Tex.

App.—Austin 2002, no pet.), in deciding not to give the lesser-included-offense instruction.1

                Generally speaking, a trial court errs by refusing to give a lesser-included-offense

instruction if (1) the lesser offense is included within the proof necessary to establish the charged

offense and (2) there is some evidence that would permit a rational jury to find that the defendant

was guilty only of the lesser offense. Hall, 225 S.W.3d at 535-36. The indictment in this case

charged Harris with committing aggravated assault two ways: by (1) recklessly causing serious

bodily injury and (2) recklessly causing bodily injury (not necessarily of the “serious” variety) while

using or exhibiting a deadly weapon (namely, his truck). See Tex. Penal Code Ann. § 22.02(a).

A person commits deadly conduct, in contrast, by recklessly engaging in conduct that places another

in imminent danger of serious bodily injury. Id. § 22.05. Comparing the elements of these offenses,

it is clear that in this case the proof necessary to establish aggravated assault could have established




       1
         In Garcia we upheld a trial court’s refusal to give a lesser-included-offense instruction
in circumstances similar to those at issue here. See Garcia v. State, 92 S.W.3d 574, 576 (Tex.
App.—Austin 2002, no pet.). Harris argues that Garcia was overruled by Guzman v. State, 188
S.W.3d 185, 189 n.11 (Tex. Crim. App. 2006).

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deadly conduct as well. Thus, the first prong of the lesser-included-offense analysis was satisfied. See

Hall, 225 S.W.3d at 535.

                The second prong of the lesser-included-offense analysis involves determining

whether there was some evidence by which a rational jury could have convicted Harris of deadly

conduct but acquitted him of aggravated assault. Id. at 536. Harris makes two arguments as to

why this prong was satisfied. First, he argues that there was “no evidence that [he] was even

aware of the presence of the Segovias’ [vehicle] on the road prior to the collision.” Thus, he

argues, the jury could have concluded that although he drove recklessly and placed others in

imminent danger of serious bodily injury (thereby satisfying the elements of deadly conduct), he

“did not recklessly cause the result.” (Emphasis added.)

                This argument relies on a false premise: that for an actor’s recklessness to “cause”

harm to a particular victim, the actor must be aware that he is placing that particular victim at risk.

In actuality, “[a] person is . . . criminally responsible for causing a result if the only difference

between what actually occurred and what he . . . risked is that . . . a different person . . . was injured.”

Tex. Penal Code Ann. § 6.04(b)(2) (West 2011). Thus, if Harris risked injuring anyone, he was

criminally responsible for “causing” the Segovias’ injuries regardless of whether he knew of the

Segovias’ presence. Harris concedes that he drove recklessly, i.e., was “aware of but consciously

disregard[ed] a substantial and unjustifiable risk that” his driving might cause injury. Id. § 6.03(c)

(West 2011) (defining recklessness). That being the case, for purposes of determining whether

Harris’s recklessness “caused” the Segovias’ injuries, there did not need to be evidence that Harris

knew his conduct might harm the Segovias in particular. See id. § 6.04(b)(2); see also Newman v.



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State, 49 S.W.3d 577, 579-80 (Tex. App.—Beaumont 2001, pet. ref’d) (rejecting appellant’s

argument that “her state of mind could not be reckless as to a vehicle of which she was not actually

aware”; “As roads are made for travel by motor vehicles, the likelihood that one will encounter a

motor vehicle on a road is obvious. The State did not have to prove that Newman was actually aware

of the presence of [her victim’s] vehicle in order for her presence in his lane of traffic to reveal

conscious risk creation.”).

               Next, Harris argues that he was entitled to a lesser-included-offense instruction

because there was some evidence that another motorist “cut him off” before the collisions, so “the

jury could have believe[d] that, although Mr. Harris was driving recklessly, there was an intervening

cause to the collision[s].” This argument fails because if an “intervening cause” is reasonably

foreseeable, it does not negate an actor’s conduct as the “cause” of a result.2 See Williams v. State,

235 S.W.3d 742, 764-65 (Tex. Crim. App. 2007). It is obviously quite foreseeable that one might

be cut off by another motorist while driving on a public highway, especially while speeding and

weaving. Thus, even if Harris’s being cut off was an “intervening cause” of the collisions, it was

not a basis for the jury to find that Harris’s conduct did not “cause” the collisions. See Tex. Penal

Code Ann. § 6.04(a) (West 2011) (defining causation for purposes of criminal culpability). Harris’s

argument fails as a result. We affirm the conviction.




       2
          Harris’s “conduct” was, of course, reckless driving. By definition, “conduct” is an act plus
its accompanying mental state. See Tex. Penal Code Ann. § 1.07(a)(10) (West 2011). Harris does
not challenge the jury’s determination that he drove recklessly, and indeed his argument depends on
the assumption that he drove recklessly; without it, he could not have been convicted of deadly
conduct and so would not have been entitled to a lesser-included-offense instruction in any event.
See id. § 22.05 (West 2011) (recklessness is element of deadly conduct).

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                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: April 6, 2012

Do Not Publish




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