Dixon v. State, 358 S.W.3d 250

Background

Appellant Anthony Dixon is convicted of attempted aggravated assault with a deadly weapon arising from a May 2008 incident where he chased Cherlyn Kelly in a truck and nearly struck her; Kelly reported fear for her life and later gave statements to police and 911 operators.
A single indictment charged both aggravated assault and the lesser-included offense of attempted aggravated assault; the jury was instructed on a single verdict form offering three options: aggravated assault, attempted aggravated assault, or not guilty.
Appellant requested lesser-included offenses of deadly conduct (reckless conduct) and reckless driving, which the court denied.
During deliberations the jury asked whether lack of unanimity on the first count precluded consideration of the second count; the court answered that there could be a finding on either count or on not guilty, without requiring prior unanimity.
The jury convicted on the lesser offense of attempted aggravated assault and assessed punishment of 10 years’ imprisonment and a $5,000 fine.
The Court of Appeals affirmed, holding no reversible error in the jury charge or the admission of evidence and addressing the propriety of the verdict form and deliberation procedure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by not instructing on deadly conduct and reckless driving as lesser-included offenses	Dixon contends deadly conduct and reckless driving meet the second prong for lesser-included offenses	State argues no affirmative evidence that appellant was guilty only of the lesser offenses	No error; no affirmative evidence requires submission of lesser offenses
Whether the trial court properly admitted hearsay statements and the 911 call	Dixon argues hearsay should be excluded	State asserts excited utterance doctrine applies to both statements	Admission of excited utterances and 911 call affirmed as admissible
Whether the jury could consider the lesser offense without unanimously acquitting the greater offense and whether the verdict form was proper	Dixon claims inconsistency between instructions and note seeking unanimity requirements	State argues Barrios permits consideration of lesser offenses without prior unanimous acquittal of greater offense; single verdict form permissible	Yes; court allowed consideration of lesser offense without unanimity on greater offense; verdict form proper

Key Cases Cited

Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006) (deadly conduct proof aligns with aggravated assault elements)
Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985) (threatening imminent bodily injury with deadly weapon constitutes conduct)
Aguilar v. State, 263 S.W.3d 430 (Tex. App.-Houston [1st Dist.] 2008) (art. 37.09(4) lesser-included offenses framework)
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (legal test for determining lesser-included offenses under article 37.09)
Wasylina v. State, 275 S.W.3d 908 (Tex. Crim. App. 2009) (distinguishes legal sufficiency vs. when to submit lesser-included offenses)
Hampton v. State, 109 S.W.3d 437 (Tex. Crim. App. 2003) (requires affirmative evidence to rebut greater offense before submitting lesser offense)
Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (allows considering lesser offenses without unanimous acquittal of greater offense; supports jury discretion)
Ramos v. State, 865 S.W.2d 463 (Tex. Crim. App. 1993) (encourages viewing the entire record rather than isolated evidence)
Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (see above)
Rice v. State, 305 S.W.3d 900 (Tex. App.-Dallas 2010) (example where lesser-included offenses not required given evidence)
Coleman v. State, no official reporter cited in text (Tex. App. Amarillo 2009) (mem. op. not designated for publication; excluded here due to WL)
Enriquez v. State, 21 S.W.3d 277 (Tex. Crim. App. 2000) (discussion on admissibility of lesser marijuana quantity evidence)
Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003) (excited utterance analysis for post-event statements)
Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006) (Confrontation Clause considerations in statement timing)
Benge v. State, 94 S.W.3d 31 (Tex. App.-Houston [14th Dist.] 2002) (reckless driving/lesser offense evidence standard)