CCA Holds Reckless Agg Assault is LIO of Intentional or Knowing Agg Assault

In Hicks v. State, the Texas Court of Criminal Appeals unanimously reversed the 14th District Court of Appeals (Houston) and held that reckless aggravated assault is a lesser included offense of intentional or knowing aggravated assault.

Appellant was charged with intentional or knowing aggravated assault after he and Angelo Jackson got into a fight over borrowed shoes that ended with Angelo being shot in the leg. The trial judge instructed the jury on intentional or knowing aggravated assault, as charged in the indictment, and he also gave a separate instruction for reckless aggravated assault. The jury convicted appellant of reckless aggravated assault. The court of appeals held that the trial judge erred in giving any instruction on reckless aggravated assault because (1) the original indictment did not charge a reckless state of mind, and (2) reckless aggravated assault is not a lesser-included offense of intentional aggravated assault.

We granted review to resolve a conflict between the courts of appeals on whether "reckless aggravated assault" is a lesser-included offense of intentional or knowing aggravated assault. Applying the plain language of Article 37.09 and adhering to our opinion in Rocha v. State, we conclude that it is. Therefore, the trial judge did not err by instructing the jury on reckless aggravated assault as a lesser-included offense.

See the CCA's full opinion HERE.

The Many Ways to Commit Assault with a Motor Vehicle in Texas

Faced with the question of whether Reckless Driving is a lesser-included offense of Aggravated Assault With a Deadly Weapon (A Vehicle), the Texas Court of Criminal Appeals explained that there are, indeed, many ways in which a vehicle can be used as a deadly weapon apart from the vehicle being driven, to wit:

• Locking the victim in a hot car,
• Slamming the victim’s head again the car frame,
• Rigging the car’s gas tank to explode,
• Placing the car in neutral and allowing it to run into the victim or a building,
• Suffocating the victim in the trunk, or
• Running the car in an enclosed area to cause carbon monoxide poisoning.

The CCA used this creative list to reverse the 5th Court of Appeals (Dallas), which had previously held that the trial court erred by not instructing the jury that it could find appellant guilty of the LIO of Reckless Driving if it believed the State did not prove Aggravated Assault w/a Deadly Weapon. The appellant argued at trial and on appeal that the LIO should apply, thereby giving the jury another option.

I apologize for the lack of analysis, but this case is really only interesting for nerds like me. I just found the CCA’s list of ways to use a vehicle for assault comical.

You can read the unanimous CCA opinion (Rice v. State) HERE.

"That's Not a Knife...This is a Knife"

Made famous by Paul Hogan in Crocodile Dundee.

Similarly, the 9th District Court of Appeals (Beaumont) distinguished a knife from a knife in Alvarado v. State, holding:

[A] kitchen knife will not qualify as a deadly weapon unless it is actually used or intended to be used in a manner capable of causing death or serious bodily injury.

The problem, argued Appellant, is that the jury was not informed of such.  Rather, the trial court instructed the jury, under Section 1.07(a)(17)(A), that

Deadly weapon means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.

Appellant was convicted (obviously - he wouldn't be an Appellant if were aquitted) of aggravated assault with a deadly weapon.  On appeal, he challenged the faulty jury instruction, arguing that it resulted in "egregious harm."  (Becuase he failed to object to the instruction at trial, the error must have resulted in "egregrious harm" for appellant to be entitled to any relief).

Noting the error, the Court did not find egregious harm, stating:

Alvarado contends that the erroneous definition of deadly weapon permeated the entire trial. At trial, Alvarado presented a defensive theory that he did not threaten the complainant with imminent bodily injury; however, he did not suggest that the knife would not have been capable of inflicting serious bodily injury on the complainant if it had been used forcefully against her. The erroneous definition did not vitally affect his defensive theory.

In other words, had his trial defense counsel be savvy enough to spot the "kitchen-knife-is-not-a-deadly-weapon" issue at trial, Appellant may have had himself a case.

Takeaway:  Not all knives are deadly weapons!