Opinion
No. 05-00-00472-CR
Opinion Filed February 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 4 Dallas County, Texas, Trial Court Cause No. F99-71799-Ik. Reverse and Remand
Before WRIGHT, FITZGERALD, and LANG-MIERS.
OPINION ON REMAND
Anthony James Reed challenges his conviction for aggravated assault of Anita Gaitlin. When appellant first appealed to this Court, we affirmed the conviction. The Texas Court of Criminal Appeals subsequently granted appellant's petition for discretionary review and reversed our determination that the trial court had not erred by including "recklessly" in the jury instructions when the indictment alleged "intentionally" and "knowingly." The court of criminal appeals remanded the case to this Court to determine harm. Reed v. State, 117 S.W.3d 260, 265 (Tex.Crim.App. 2003). We conclude appellant suffered "some" harm. Accordingly, we reverse appellant's conviction and remand for further proceedings. Appellant objected to the inclusion of "recklessly" in the jury instructions. Thus, reversal is required "as long as the error is not harmless." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). In other words, any harm, regardless of degree, is sufficient to require reversal. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996). We make this determination in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Appellant was also convicted of murdering Coartne Robinson in the same incident. Robinson had fourteen gunshot wounds. When appellant came from behind a fence and shot at Robinson, Anita Gaitlin ran. As she ran, she was shot in the calf. In her statement to the police, Gaitlin said that appellant "probably didn't mean to shoot me." Although appellant was charged with intentionally and knowingly shooting Gaitlin, the jury instructions allowed him to be convicted for recklessly disregarding the risk that one of the shots fired by him at Robinson might have hit someone else. Reed, 117 S.W.2d at 265. Given the evidence and the jury instruction, it is possible the jury found appellant guilty of recklessly causing bodily injury to Gaitlin. See id. Thus, we conclude appellant suffered "some harm." Accordingly, we reverse the trial court's judgment and remand for further proceedings.