Opinion
NO. 01-18-00539-CR
11-14-2019
CHRISTOPHER SIMMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas
Trial Court Case No. 1591795
MEMORANDUM OPINION
A jury convicted appellant Christopher Simms of aggravated assault causing serious bodily injury, and, after finding two enhancement allegations true, it assessed punishment of 45 years in prison. On appeal, Simms argues that the trial court erred by not instructing the jury on the lesser-included offense of deadly conduct.
We affirm.
Background
Simms was speeding when he drove his Chevy Impala into the two-lane Washburn tunnel in Harris County. Eduardo Gonzalez Pineda was driving a van in the opposite direction. Simms's car collided with Pineda's van in a head-on collision. A witness, Oscar Barrera, who was driving behind Pineda testified that he and Pineda were driving approximately at the speed limit of 35 miles per hour. A videorecording from the tunnel was played at trial and it showed Simms's car was completely in Pineda's lane just before and at the moment of collision.
Both Simms and Pineda were injured and received emergency and in-patient medical care. Pineda spent about five days in the hospital recovering from internal injuries and emergency surgery. Two days after he was discharged, Pineda began vomiting blood, and he returned to the emergency room, where he later died from injuries caused by the head-on collision.
An investigation of the collision, which included gathering data from the Impala's crash data retrieval system, showed that Simms was travelling at 62 miles per hour two seconds before impact and 58 miles per hour one-half second before impact. In addition, the accelerator position went from 8% to 100% from two seconds before impact to one-half second before impact. According to accident investigator Harris County Deputy B. Wilbanks, this indicated that Simms had "floored" the accelerator just before impact, although the car had no time to respond and accelerate. In addition, crash data collected from the Impala showed that Simms never applied his brakes.
Simms testified at trial that he recalled entering the Washburn tunnel, but he did not recall anything after that until he awoke in pain in the hospital. A nurse told him that he had been injured in an automobile accident. Simms admitted that he was driving the car that caused the accident and speeding at the time He also admitted that he failed to stay in his lane and to keep a proper lookout. But he denied having been tired or under the influence of alcohol, medication, or illegal substances at the time of the accident. Because he had no recollection of the collision, Simms relied on the videorecording to conclude that he "apparently" "dozed off" or passed out.
At the close of evidence, Simms requested a jury charge on the lesser-included offense of deadly conduct, and the trial court denied the request. The jury convicted Simms, and he appealed.
Analysis
On appeal, Simms argues that the trial court erred by denying his request for a lesser-included offense instruction.
"We review the trial court's decision regarding including a lesser-included offense in the jury charge for abuse of discretion." Brock v. State, 295 S.W.3d 45, 49 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd); see Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim. App. 2005). An offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;TEX. CODE CRIM. PROC. art. 37.09.
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
A two-part test is used to determine whether a defendant is entitled to an instruction on a lesser-included offense. See Cavazos v. State, 382 S.W.3d 377, 382-83 (Tex. Crim. App. 2012). The first step, which is a question of law, "compares the elements alleged in the indictment with the elements of the lesser offense" to determine "if the proof necessary to establish the charged offense also includes the lesser offense." Id. at 382. The second step requires consideration of whether there is some evidence that would allow a rational jury to acquit the defendant of the greater offense while convicting him of the lesser-included offense. Id. at 383; Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016).
A person commits aggravated assault by committing assault as defined by Texas Penal Code § 22.01 and by causing "serious bodily injury" to another. TEX. PENAL CODE § 22.02(a)(1). A person commits assault by "intentionally, knowingly, or recklessly" causing "bodily injury to another." Id. § 22.01. A person commits the offense of deadly conduct when he "recklessly engages in conduct that places another in imminent danger of serious bodily injury." Id. § 22.05. The State concedes that deadly conduct is a lesser-included offense of aggravated assault causing serious bodily injury and that the first prong of the test is satisfied.
We therefore need only determine whether the evidence would allow a rational jury to find that Simms was guilty only of the lesser offense of deadly conduct. Simms argues on appeal that because he passed out or "dozed off" after entering the tunnel, he was reckless only in regard to his conduct of speeding into the tunnel and not in regard to causing the head-on collision because he was unconscious. "A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." TEX. PENAL CODE § 6.03(c). Recklessness is a culpable mental state for both deadly conduct and aggravated assault. See TEX. PENAL CODE §§ 22.01, 22.02, 22.05; Pogue v. State, No. 05-12-00883-CR, 2013 WL 6212156, at *4 (Tex. App.—Dallas Nov. 27, 2013, no pet.) (mem. op.; not designated for publication).
In Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006), the defendant put a gun to his girlfriend's head and pulled the trigger. The gun fired, and she was seriously injured. 188 S.W.3d at 186. The defendant was convicted of attempted murder, and on appeal, he argued that the court erred by not including an instruction on the lesser-included offense of deadly conduct. Id. at 188. He asserted that he had removed the clip from the gun and did not know that there was a bullet in the chamber when he pulled the trigger. Id. at 187. Therefore, he contended that the shooting was accidental, and he was guilty only of deadly conduct. Id.
The Court of Criminal Appeals explained that the defendant could not "argue that there is some evidence that he 'recklessly engaged in conduct that places another in imminent danger of serious bodily injury,' but no evidence that he 'recklessly caused serious bodily injury,' simply by arguing that he did not act with actual recklessness." Id. at 193. In that case, the reckless act of pointing the gun at his girlfriend's head would support both a deadly conduct and an attempted murder charge. Id.
In this case, Simms conceded that he was reckless in speeding into the tunnel. That act of recklessness likewise supports both deadly conduct and aggravated assault. See id. Moreover, Simms testified that he was speeding, failed to keep a proper lookout, and failed to stay in his lane. He also testified that he caused serious bodily injury to Pineda, who died as a result of those injuries. In Guzman, the defendant also admitted that "he had a reckless state of mind and that his conduct resulted in serious bodily injury." Id. at 194. The Court of Criminal Appeals concluded that there was no evidence that would permit a rational jury to find the defendant guilty only of deadly conduct and not guilty of aggravated assault. Id. The same is true in this case. Because Simms admitted to his reckless state of mind and that his conduct caused Pineda serious bodily injury, the second step of the two-prong test for instructing a jury on a lesser-included offense is not satisfied. We hold that the trial court did not abuse its discretion by denying Simms's requested jury instruction. We overrule Simms's sole issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice Panel consists of Justices Kelly, Hightower, and Countiss. Do not publish. TEX. R. APP. P. 47.2(b).