                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-15-00447-CR


EDWARD CORNELL KNIGHT                                             APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1377890D

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                                  OPINION

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      In two points, Appellant Edward Cornell Knight appeals his conviction for

aggravated assault with a deadly weapon.           See Tex. Penal Code Ann. §

22.02(a)(1) (West 2011). We affirm.
                                   Background

      In 2014, Appellant and his wife, Nancy,1 were having marital troubles, had

separated, and had been living in separate homes for at least five months. On

the night of July 15, 2014, Appellant stopped by the house where Nancy and

their then twelve-year-old son, Michael, resided.             Although Appellant’s

appearance there was unexpected—something that Nancy characterized at trial

as a recurring problem—his presence was not unwelcome that evening. At some

point, he helped himself to some leftover pizza from the stove, and he and Nancy

later shared a bath together.

      At approximately 10:00 p.m. that evening, Nancy went to bed and

Appellant went outside to walk the dog and smoke a cigarette. Both Nancy and

Appellant testified that they expected that he would stay the night and they would

sleep in the bed together, but at some point she awakened to find that he was

not in the house. Before she located him, she found his cell phone in the kitchen,

and, according to Nancy, because she had been experiencing “trust issues” with

regard to Appellant, she “looked at it to see if [she] could find out something.”

      After she discovered a text message that confirmed her suspicion that

Appellant was cheating on her, she continued in her search for Appellant. She

found him lying in the driveway, asleep. Describing herself at that point as being

“upset” but not “mad,” Nancy testified that she merely “nudged” Appellant to

      1
       In accordance with rule 9.8, we refer to children and family members by
aliases. Tex. R. App. P. 9.8(b) & cmt.


                                          2
wake him. Appellant, on the other hand, described awakening to the sensation

of being struck in the head and “beaten.” They both agreed, however, that an

argument ensued, that Nancy asked him to leave the house and go to his own

home, and that rather than comply with her request, Appellant—for the stated

purpose of retrieving his keys—followed Nancy as she retreated back into the

house. Nancy locked herself inside the master bathroom, and when she would

not let him inside, Appellant responded by punching a hole through the bathroom

door.2

         Nancy eventually opened the door and handed Appellant his pants, which

had been in the closet in the bathroom. The two then left the master bathroom

and bedroom, and, as she was walking down the hall behind him, Nancy hit

Appellant in the back twice with her fist, causing him to fall.

         Appellant then warned Nancy that she “better find [his] f**king keys.” She

did find them—in the door to Appellant’s van that was parked outside the house.

When Nancy handed the keys to Appellant, he angrily said, “Now I’m going to

shoot your ass.” Nancy testified that at that point she believed him.

         When Appellant went outside to get his gun, Nancy locked and held the

garage door shut while Michael locked the front door. Nancy was able to prevent

Appellant from opening the garage door, but he was able to use his keys to enter


         2
       Photos of the damage to the door were admitted into evidence and shown
to the jury. At trial, Appellant conceded that he “may have hit the door out of
anger.” Michael testified that he saw his father “bust[] down the door.”


                                          3
the house through the front door.3 When Nancy heard the front door open, she

went out the garage door, got into her car, and started backing her car out of the

driveway. As she was leaving, she saw Michael waving to her from the front

door, and she stopped, thinking that he would come out and get in the car with

her.

       Instead, Appellant came out of the house with a gun in his hand and

approached Nancy’s car. Nancy testified that she rolled down her car window

“maybe an inch or two,” and Appellant pointed the gun sideways through the

window approximately ten inches away from her head and said, “I’m going to

shoot you, b**ch.” For a moment, Appellant lowered the gun, but then he raised

it again and pulled the trigger, striking the roof of the car.

       Appellant then went back inside the house and started gathering his

things, leaving Nancy—who testified that she was in a state of shock—in her car.

When Nancy went back inside the house, Appellant asked her “if [she] wanted to

die tonight or tomorrow night,” and then he eventually left.

       Appellant was arrested and charged with aggravated assault by threat with

a deadly weapon. Tex. Penal Code Ann. § 22.02(a)(1). A jury found him guilty

as charged and he was sentenced to nine years’ confinement.


       3
         At this point, Michael insisted on calling 9-1-1 and did so, over Nancy’s
initial objections. The recording of the 9-1-1 call was admitted into evidence and
played at trial. In the recording, Michael informed the call dispatcher that
Appellant had threatened Nancy and had said that he “won’t stop until he has
[Nancy] dead.”


                                           4
                                    Discussion

      Appellant’s points relate to the jury charge. In his first point, Appellant

argues that the trial court erred in denying his request to include an instruction as

to the lesser-included offense of felony deadly conduct. In his second point,

Appellant argues that the trial court’s charge as to punishment violated his right

to due process.

A. Felony deadly conduct as a lesser-included offense

      In his first point, Appellant argues that the trial court erred by denying his

request for an instruction concerning felony deadly conduct as a lesser-included

offense in the jury charge for aggravated assault.

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for

reversal. Id.

      Initially, the trial court included instructions for both misdemeanor deadly

conduct and felony deadly conduct in the jury charge. The State objected to the

inclusion of the felony-deadly-conduct instruction, relying on the decisions in

Miller v. State, No. 05-01-00151-CR, No. 05-01-00152-CR, No. 05-01-00153-CR,

No. 05-01-00154-CR, 2002 WL 659988, at *2–3 (Tex. App.—Dallas Apr. 23,

2002, no pet.) (not designated for publication), Rogers v. State, 38 S.W.3d 725,


                                         5
727–28 (Tex. App.—Texarkana 2001, pet. ref’d), and Franklin v. State, 992

S.W.2d 698, 704–06 (Tex. App.—Texarkana 1999, pet. ref’d). In these cases,

our sister courts held that felony deadly conduct was not a lesser-included

offense of aggravated assault by threat when the indictment charged the

defendant with using or exhibiting a weapon. Miller, 2002 WL 659988, at *2;

Rogers, 38 S.W.3d at 727; Franklin, 992 S.W.2d at 706 n.5. In so holding, each

court pointed out that felony deadly conduct requires that a firearm be

discharged, whereas aggravated assault by threat, as it had been charged in

those cases, only required proof that the defendant used or exhibited a weapon.

Miller, 2002 WL 659988, at *2; Rogers, 38 S.W.3d at 727–28; Franklin, 992

S.W.2d at 709. Thus, as the Rogers court noted, because aggravated assault by

threat, as charged in that case, required only proof that the defendant exhibited

or used a weapon, felony deadly conduct required more facts—proof that the

weapon was “fired”—than aggravated assault by threat. 38 S.W.3d at 727–28.

      Appellant’s counsel argued that these decisions were “counterintuitive” and

were not binding on the trial court and that the instruction should be included

because the facts “clearly establish that the jury could easily find the felony third

degree.” He cited no cases to the contrary, nor did he cite any cases which he

contended supported his position. The trial court sustained the State’s objection

and struck the instruction regarding felony deadly conduct.

      Neither the court of criminal appeals nor this court has decided the

particular question presented in this case—whether felony deadly conduct is a


                                         6
lesser-included offense of aggravated assault by threat when a defendant was

charged with “using or exhibiting” a deadly weapon in the commission of the

aggravated assault by threat. In order to answer this question, we will look first

to the relevant statutory language. We are also guided by the court of criminal

appeals and its approach in making similar determinations regarding lesser-

included offenses in other circumstances.

      Texas code of criminal procedure article 37.09(1)4 provides that an offense

is a lesser-included offense of another offense if the indictment for the greater

offense either (1) alleges all of the elements of the lesser-included offense or

(2) alleges elements plus facts (including descriptive averments, such as

nonstatutory 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.    Tex. Code Crim. Proc. Ann. art. 37.09(1); Ex parte Watson, 306

S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). Enacted in 1973, Article

      4
         Appellant did not argue to the trial court and does not argue on appeal
that felony deadly conduct is a lesser-included offense of aggravated assault by
threat pursuant to any other subsections of article 37.09. See Tex. Code Crim.
Proc. Ann. art. 37.09(2) (West 2006) (providing that an offense is a lesser-
included offense if it differs from the charged offense by requiring a less serious
injury or risk of injury), 37.09(3) (providing that an offense is a lesser-included if it
differs only in respect that it requires a less culpable mental state), 37.09(4)
(providing that an attempt to commit the offense charged constitutes a lesser-
included offense). We have therefore limited our analysis to the applicability of
article 37.09(1), but, as will be discussed later, we do note that 37.09(3) would
not apply because the charged offense and the claimed lesser-included offense
differ in more than one respect. Thus, the two offenses do not differ only in the
respect that the claimed lesser-included offense requires a less culpable mental
state.


                                           7
37.09 was first addressed by the court of criminal appeals three years later in

Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1976).                   In reviewing the

constitutionality of article 37.09, the court first observed that the prior statutory

scheme had sometimes allowed for an “obvious absurdity violative of basic

principles of due process” because it did not provide the defendant with notice of

the elements of the lesser-included offense of which he could be convicted. Id.

at 313; see also Slack v. State, 136 S.W. 1073, 1075 (Tex. Crim. App. 1911)

(holding that the Legislature cannot provide “that a person indicted for an offense

consisting of one state of facts may be tried and convicted under that indictment

of an offense consisting of a different state of facts”). But in holding that the

newly-enacted article 37.09 was constitutional, the court made two significant

misstatements of law—both of which the court later corrected—implying that the

facts of the case should be considered in the analysis.5 Day, 532 S.W.2d at

315–16. These misstatements led to confusion and conflicting opinions in the

lower courts as well as within the court of criminal appeals itself that were not

resolved for thirty years, until the court finally clarified its position in Hall v. State,

225 S.W.3d 524 (Tex. Crim. App. 2007).


      5
       First, the court stated, “On original submission we held that on the facts of
this case criminal trespass was a lesser included offense to the burglary
charged.” Id. at 315 (emphasis added). And later the court said, “whether one
offense bears such a relationship to the offense charged is an issue which must
await a case by case determination, both because the statute defines lesser
included offenses in terms of the offense charged and because it defines lesser
included offenses in terms of the facts of the case.” Id. at 315–16 (emphasis
added).


                                            8
      Prior to Hall, the debate had evolved into a question of whether courts

should use the “cognate pleadings” approach or the “cognate evidence”

approach in determining whether a lesser-included offense existed. Id. at 526,

530 n.29, 531 n.31 (listing opinions by the court of criminal appeals using

conflicting approaches). In a cognate pleadings analysis, the court looks to the

facts and elements as alleged in the charging instrument, not just to the statutory

elements of the offense, to determine whether a lesser-included offense exists.

Id. But with a cognate evidence approach, courts look not only to the charging

instrument but also to the facts adduced at trial in making this determination. Id.

In Hall, the court of criminal appeals, acknowledging its earlier misstatements,

clarified that courts should not consider the facts adduced at trial but instead

should look exclusively at the facts and elements as alleged in the charging

instrument, thus adopting the cognate pleadings standard as the proper analysis

in evaluating whether a lesser-included offense exists:

      [t]he first step in the lesser-included-offense analysis, determining
      whether an offense is a lesser-included offense of the alleged
      offense, is a question of law. It does not depend on the evidence to
      be produced at the trial. It may be, and to provide notice to the
      defendant must be, capable of being performed before trial by
      comparing the elements of the offense as they are alleged in the
      indictment or information with the elements of the potential lesser-
      included offense.

Id. at 535–36.6


      6
       As the court reiterated later in Watson, whether a descriptive averment in
the indictment for the greater offense is identical to an element of the lesser
offense, or an element of the lesser offense may be deduced from a descriptive

                                        9
      Although it may seem, as Appellant contends, counterintuitive at first

glance, using the cognate pleadings standard, felony deadly conduct is not

always a lesser-included offense of aggravated assault. See id. at 531. It can

be, depending on how the aggravated assault is charged, but it is not a lesser-

included offense in all circumstances. Id. Using a cognate pleadings approach

to the question, the answer will turn on how the aggravated assault is charged.

      A person commits aggravated assault if he intentionally or knowingly

threatens another, including his spouse, with bodily injury and uses or exhibits a

deadly weapon during the commission of the assault. Tex. Penal Code Ann. §

22.02(a)(2). Whereas, a person commits the felony offense of deadly conduct “if

he knowingly discharges a firearm at or in the direction of: (1) one or more

individuals; or (2) a habitation, building, or vehicle and is reckless as to whether

the habitation, building, or vehicle is occupied.” Id. § 22.05(b) (West 2011).

      Here, the indictment charged Appellant with “us[ing] or exhibit[ing] a deadly

weapon during the commission of the assault.” Thus, in this case, even though

the evidence established that Appellant did discharge a firearm, this was not a

fact that the State was required to prove to support a conviction for aggravated




averment in the indictment for the greater offense, should be analyzed in
determining whether all of the elements of the lesser offense are contained within
the allegations of the greater offense. 306 S.W.3d at 273.




                                        10
assault by threat.7 Id. § 22.05(b). Because, as charged, the State was only

required to prove that Appellant exhibited the gun, one element of felony deadly

conduct—discharge of the firearm—was not required to be proved to support a

conviction for the offense of aggravated assault by threat.8      Thus, using the

cognate pleadings analysis, felony deadly conduct is not a lesser-included

offense of aggravated assault by threat, as charged in this case.       See, e.g.,

Watson, 306 S.W.3d at 273.9

      Using a similar analysis, at least four of our sister courts have reached the

same result, holding that felony deadly conduct was not a lesser-included offense

of aggravated assault by threat as charged. On facts very similar to the facts

here, in Miller, the Dallas court held that felony deadly conduct was not a lesser-

included offense of aggravated assault by threat because the indictment did not

require discharge of a firearm. Although, as here, the evidence showed that the


      7
        This is not to say that proof that the weapon was discharged would not
have met the State’s burden to prove aggravated assault. Rather, the
determination is whether the charged offense requires proof of each element of
the claimed lesser-included offense. See, e.g., Miller, 2002 WL 659988 at *3.
      8
        Since the evidence at trial proved the actual discharge of a weapon, under
a cognate evidence standard our conclusion would likely be different. However,
using the proper standard, we cannot consider the facts as developed at trial.
Hall, 225 S.W.3d at 535–36.
      9
       In fact, if the trial court had retained the instruction as to felony deadly
conduct and Appellant had been convicted of the same, he might then have been
heard to complain on appeal of a due process rights violation because the
indictment did not include the vital allegation that he discharged a firearm in
Nancy’s direction. See Hall, 225 S.W.3d at 535–36.


                                        11
defendant did fire a gun in the direction of the complainants, the court

nevertheless noted that “the determination of whether an offense is a lesser

included offense of another offense depends on a comparison of their elements,

not the evidence at trial.” Miller, 2002 WL 659988 at *3 (citing Jacob v. State,

892 S.W.2d 905, 908 (Tex. Crim. App. 1995)); see also Dugger v. State, No. 05-

08-00469-CR, No. 05-08-00470-CR, No. 05-08-00471-CR, 2009 WL 3298172, at

*8 (Tex. App.—Dallas Oct. 15, 2009, no pet.) (not designated for publication)

(holding that defendant was not entitled to instruction on felony deadly conduct

where indictment for aggravated assault by threat did not require discharge of a

firearm).

      In Rogers, the evidence showed that the defendant accosted a woman

while she was sitting in her car by pointing a gun at the car window, firing three

times, and shattering the window without injuring her. 38 S.W.3d at 727. The

Texarkana court, identifying yet another element of felony deadly conduct that

was not shared by the charge of aggravated assault, held that Rogers was not

entitled to an instruction of felony deadly conduct because to prove felony deadly

conduct, the State must prove “not only that a weapon was used or exhibited, but

also that it was fired in the direction of the complainant.” Id. at 727–28; see also

Franklin, 992 S.W.2d at 706 n.5 (“Felony deadly conduct requires proof that the

defendant ‘discharge[d] a firearm at or in the direction of,’ while aggravated

assault only requires proof that the defendant used or exhibited a firearm”).

While the facts in Rogers showed that the gun was fired in the direction of the


                                        12
complainant—at a car window, the only thing that separated the complainant

from the defendant and his gun—as the court pointed out, the discharging of a

firearm in the direction of the complainant constituted “more facts than [were]

required to prove aggravated assault” in the context of that case. 38 S.W.3d at

728.

       Both the El Paso and Austin courts have used reasoning similar to that of

the Rogers and Miller courts in holding that felony deadly conduct was not a

lesser-included offense of aggravated assault by threat. See Potts v. State, No.

03-05-00009-CR, 2006 WL 664211, at *3 (Tex. App.—Austin Mar. 17, 2006, pet.

ref’d) (mem. op., not designated for publication); Brewer v. State, No. 08-00-

00426-CR, 2002 WL 265817, at *5 (Tex. App.—El Paso Feb. 26, 2002, no pet.)

(not designated for publication). In both cases, even though the appellants were

charged with aggravated assault by threat and use of a firearm, the courts held

that felony deadly conduct was not a lesser-included offense because it required

more, i.e., that a weapon be fired at or near an individual or physical entity.

Potts, 2006 WL 664211, at *3; Brewer, 2002 WL 265817, at *5.

       While at first blush Wilkerson v. State appears to hold to the contrary, this

holding finds its genesis in the same analysis we use here. In Wilkerson, the

Waco court held that felony deadly conduct was a lesser-included offense, but

this determination was based upon the actual allegations included in the

indictment, that the appellant “threatened the complainant with imminent bodily

injury by discharging a firearm in his direction.” No. 10-09-00057-CR, 2010 WL


                                        13
3434194, at *3 (Tex. App.—Waco Sept. 1, 2010, no pet.) (mem. op., not

designated for publication). Because “[t]his descriptive averment [was] identical

to the statutory elements for [felony] deadly conduct,” the court held that felony

deadly conduct was a lesser-included offense as charged. Id.

      Appellant points us to Hage v. State in support of his position. No. 08-10-

00270-CR, 2013 WL 1846669, at *6 (Tex. App.—El Paso Apr. 30, 2013, no pet.)

(not designated for publication). Although Hage was decided six years after Hall,

the court still employed a cognate evidence, rather than a cognate pleadings,

analysis in determining that felony deadly conduct was a lesser-included offense

of aggravated assault by threat on a public servant in that case.10 Id. Because

the Hage court failed to follow Hall in analyzing this issue, we consider Hage

unpersuasive.11

      Finally, in his reply brief, Appellant relies on State v. Meru to argue that the

indictment’s allegation that he used a firearm is the “functional equivalent” of an

allegation that he discharged a firearm. 414 S.W.3d 159, 162 (Tex. Crim. App.

2013) (employing a “functional-equivalence” test when examining the charging

instrument from a cognate pleadings perspective and holding that “the elements

      10
        The court ultimately concluded that the evidence did not support a finding
that the defendant acted with the required mental state to warrant an instruction
on felony deadly conduct. Id.
      11
        Likewise, Honeycutt v. State, another case on which Appellant relies,
applied a cognate evidence standard. 82 S.W.3d 545, 548–49 (Tex. App.—San
Antonio 2002, pet. ref’d). For that reason, we are not guided by the analysis
used in Honneycutt or its holding.


                                         14
of the lesser-included offense do not have to be pleaded in the indictment if they

can be deduced from facts alleged in the indictment”). Even assuming this point

has been properly raised, under a cognate pleadings analysis, we need not

reach this point.     Since the indictment in this case authorized conviction for

merely exhibiting the weapon, even assuming, without deciding, that the specific

act of discharging a firearm could be logically deduced from a general allegation

of “use,” such use of a firearm still requires more proof than was required to

prove aggravated assault as charged here.

         For the above reasons, we hold that the trial court did not err in declining to

include an instruction of felony deadly conduct and overrule Appellant’s first

point.

B. Punishment jury charge

         In his second point, Appellant argues that his rights to due process and

due course of law were violated by the inclusion of statutorily-required language

regarding good conduct time and parole in the jury charge at punishment. Tex.

Code Crim. Proc. Ann. art. 37.07 § 4(a) (West Supp. 2016) (providing that certain

instructions shall be given regarding good conduct time and parole in cases

when the jury has found the defendant guilty of certain offenses, including a

crime in which a deadly weapon was used or exhibited). Appellant admits in his

briefing that the court of criminal appeals has considered and rejected a similar

argument in Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002), and notes

that he has raised this complaint to preserve the issue for further review.


                                           15
       Luquis held that the instruction required by article 37.07, section 4(a) does

not violate a defendant’s due process or due course of law rights. Id. at 364–68.

In so holding, the court noted that the statutorily-provided instruction “informs the

jury of the existence of good conduct time, briefly describes that concept, and

explicitly tells the jury not to apply that concept to the particular defendant” and

that we assume that the jury followed the instructions as given. Id. at 365. We

do not have discretion to reject the holdings of the court of criminal appeals. See

State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.), cert.

denied, 404 U.S. 910 (1971); Crenshaw v. State, 424 S.W.3d 753, 755 (Tex.

App.—Fort Worth 2014, no pet.).        We therefore overrule Appellant’s second

point. See also Sanders v. State, 255 S.W.3d 754, 765–66 (Tex. App.—Fort

Worth 2008, pet. ref’d) (following Luquis).

                                    Conclusion

       Having overruled both of Appellant’s points, we affirm the judgment of the

trial court.

                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: GARDNER, WALKER, and SUDDERTH, JJ.

WALKER, J., concurs without opinion.

PUBLISH

DELIVERED: October 27, 2016




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