                                    NO. 07-08-0395-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   JULY 21, 2009
                          ______________________________

                                   BOBBY COLEMAN,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                    NO. B17640-0805; HON. ED SELF, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Bobby Coleman was convicted of aggravated assault with a deadly weapon. He

seeks reversal of that conviction because the trial court failed to give the jury instructions

on the lesser-included offenses of deadly conduct, reckless driving, and Class C

misdemeanor assault. We affirm the judgment.
       Background

       On March 17, 2008, Nathaniel Wallace was driving his Ford Taurus when appellant

pulled his gold Lincoln Town Car in front of the Taurus at a slant. Appellant exited his car

with an object in his hand and appeared angry. Although Wallace and appellant knew

each other, Wallace felt threatened by appellant’s actions and drove around appellant’s

car to escape. Thereafter, appellant followed Wallace and proceeded to strike his vehicle

in the rear on four or five different occasions. Two of those occasions were observed by

a police officer. Appellant was also observed by the officer making a turn at a high rate of

speed, jumping the curb, and striking a residence. Appellant then fled the scene. He was

later detained at an apartment complex where Wallace (and appellant’s brother) lived.

       Applicable Law

       A party is entitled to an instruction on a lesser offense if 1) the lesser offense is

included in the proof necessary to establish the greater offense, and 2) some evidence

exists that would permit a jury to rationally find that if appellant is guilty, he is guilty only of

the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993).

In applying the first prong, we compare the elements of the lesser crime to those of the

greater as described in the indictment. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim.

App. 2007). If the elements of the lesser offense are not included in the wording of the

crime alleged in the indictment, it is not a lesser-included offense.

        With respect to the second prong, if there is more than a scintilla of evidence from

any source that raises the issue that the defendant is guilty only of the lesser offense, the

instruction must be given. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999).



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However, the evidence of record must affirmatively negate the element present in the

greater offense but absent in the lesser. Morris v. State, No. 07-99-0498-CR, 2000 Tex.

App. LEXIS 7181at *5 n.1 (Tex. App.–Amarillo October 25, 2000, pet. ref’d) (not designated

for publication). It is not enough to simply rely on the State’s failure to prove the particular

element. Id.

        Deadly Conduct

        To prove aggravated assault as alleged in the indictment, the State was required

to illustrate that appellant intentionally or knowingly threatened another with imminent

bodily injury and used or exhibited a deadly weapon. See TEX . PENAL CODE ANN .

§22.01(a)(2) & §22.02(a)(2) (Vernon Supp. 2008). A person commits deadly conduct if he

recklessly engages in conduct that places another in danger of serious bodily injury. Id.

§22.05(a) (Vernon 2003).

        Assuming arguendo that deadly conduct is a lesser offense of aggravated assault

as alleged here, there must also be some evidence that if appellant is guilty, he is guilty

only of deadly conduct. The difference between the two offenses is the culpable mental

state, i.e. intentional and knowing versus reckless. Appellant relies upon the fact that

Officer Guerra, who observed appellant’s vehicle strike that of Wallace, could not

definitively state that the accident was not the result of appellant having faulty brakes or

Wallace having stopped his vehicle abruptly.1 He also relies upon some indication that

appellant smelled of alcohol and lost control of his vehicle by running over a curb and


        1
          Appellant also m entions that the officer stated in his report that “failure to control speed” was a
contributing factor to the accident. The two other factors the officer listed were “under the influence” and “road
rage.” W e do not believe that the reference to these factors in the officer’s report is affirm ative evidence that
appellant did not act intentionally and knowingly.

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striking a house. By this evidence, appellant is relying upon the State’s failure to prove that

appellant did not have defective brakes or that Wallace did not stop his vehicle abruptly.

Yet, there is no affirmative evidence that such events occurred so as to entitle appellant

to an instruction on deadly conduct. Simply put, appellant is relying on speculation of what

could or could not be at any particular time, as opposed to what is shown by the evidence

of record. Moreover, the fact that appellant may have been under the influence of alcohol

does not negate his intent. TEX . PENAL CODE ANN . §8.04(a) (Vernon 2003); Pitonyak v.

State, 253 S.W.3d 834, 847 (Tex. App.–Austin 2008, pet. ref’d). Accordingly, we find that

appellant was not entitled to an instruction on deadly conduct.

       Reckless Driving

       Next, appellant complains of the lack of an instruction on the misdemeanor offense

of reckless driving. That offense occurs when one drives a vehicle “in wilful or wanton

disregard for the safety of persons or property.” TEX . TRANSP . CODE ANN . §545.401(a)

(Vernon 1999). Reckless driving is a lesser-included offense of aggravated assault with

a motor vehicle because the element of driving is included in the facts necessary to

establish that appellant used the motor vehicle as a deadly weapon, and the facts used to

prove the intent of aggravated assault would have proven that the defendant acted with

deliberate conscious indifference to the safety of others. Brown v. State, 183 S.W.3d 728,

733 (Tex. App.–Houston [1st Dist.] 2005, pet. ref’d); Benge v. State, 94 S.W.3d 31. 35-36

(Tex. App.–Houston [14th Dist.] 2002, pet. ref’d).




                                              4
       Appellant relies upon the same evidence to establish the second prong of the test

as he did for purposes of deadly conduct. Yet, for the same reasons listed above, we

conclude that this evidence did not entitle appellant to an instruction on reckless driving.

       Class C Assault

       Finally, appellant claims he was entitled to an instruction on misdemeanor assault.

At trial, he requested that instruction based “merely on the threat.” We interpret this to

mean appellant sought an instruction on assault for “intentionally or knowingly threaten[ing]

another with imminent bodily injury . . . . “ See TEX . PENAL CODE ANN . §22.01(a)(2) (Vernon

Supp. 2008). The State concedes that this is a lesser-included offense of aggravated

assault with a deadly weapon.

       The factual basis for appellant’s argument is that Wallace’s fears allegedly arose

out of his observation of appellant when he initially exited his vehicle with an object in his

hand and appeared angry, i.e. it was the result of actions not involving a motor vehicle.

Nevertheless, the record does not show that if appellant is guilty of anything, he is guilty

only of misdemeanor assault not arising from the use of a vehicle. First, we note that prior

to exiting his vehicle, appellant used it to block Wallace’s own vehicle by driving it at a slant

towards Wallace. Moreover, Wallace testified that he felt scared as a result of that action

and as a result of appellant later striking Wallace’s vehicle multiple times and he “was

crying and . . . checking on the people in the car with [him] . . . .” Nothing in the record

contradicts this evidence.

       Nor does the scenario portrayed by appellant necessarily illustrate that he was guilty

only of simple assault. While it may be that the victim feared bodily injury when he first saw

appellant’s vehicle, that does not negate the elevation of simple assault to aggravated

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assault once the car was used to strike the victim. Therefore, the trial court did not err in

failing to give the requested instruction.

       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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