543 S.W.3d 216
Tex. Crim. App.2018Background
- Anthony Robert Safian drove his vehicle toward an undercover officer (Officer Pearce) who had parked in front of Safian’s car; Pearce avoided being hit when Safian accelerated away, initiating a high-speed chase that ended in a collision and arrest.
- Safian was indicted for aggravated assault on a public servant alleging he "used or exhibited" a motor vehicle as a deadly weapon while threatening imminent bodily injury; he was also charged with evading and possession of heroin.
- At trial Safian requested a jury instruction that deadly conduct be given as a lesser-included offense of the aggravated-assault charge; the trial court denied the request.
- The jury convicted Safian; on appeal the Fort Worth court of appeals affirmed, holding that deadly conduct is not a lesser-included offense as a matter of law because the indictment alleged "use or exhibit" rather than only "use."
- The Texas Court of Criminal Appeals granted discretionary review to decide whether deadly conduct is, as a matter of law, a lesser-included offense of aggravated assault when the indictment alleges the use or exhibition of a motor vehicle as a deadly weapon; it reversed the court of appeals and remanded for the second step of the lesser-included analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deadly conduct is a lesser-included offense of aggravated assault alleged by use or exhibition of a motor vehicle as a deadly weapon | Safian: Yes — proof of aggravated assault (use/exhibit of vehicle to threaten imminent bodily injury) necessarily includes proof of deadly conduct (conduct placing another in imminent danger of serious bodily injury) | State: No — "exhibit" can be conceptually different from "use," and aggravated-assault allegations need not prove the actual imminent danger element required for deadly conduct | Held: Yes — as a matter of law deadly conduct is a lesser-included offense under the indictment’s "use or exhibit" allegation; case reversed and remanded for step two (whether evidence supports giving the instruction) |
Key Cases Cited
- Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985) (held deadly/reckless conduct is a lesser-included offense of aggravated assault when a deadly weapon is alleged to have been used)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (explains that the manner alleged controls lesser-included analysis when greater offense can be committed in multiple ways)
- Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) (sets out the two-step lesser-included-offense analysis)
- Patterson v. State, 769 S.W.2d 938 (Tex. Crim. App. 1989) (distinguishes meanings of "use" and "exhibit" and observes one can exhibit without using, but exhibition typically implies danger/use in context)
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (functional-equivalence test for deducing lesser-offense elements from indictment)
- McKithan v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010) (discusses deduction of elements and functional equivalence in lesser-included analysis)