Gallegos v. State

548 S.W.2d 50 (1977)

Augustin GALLEGOS, Appellant, v. The STATE of Texas, Appellee.

No. 52992.

Court of Criminal Appeals of Texas.

March 16, 1977.

Bruce J. Ponder, El Paso, for appellant.

George N. Rodriquez, County Atty., J. Todd Southern, Asst. County Atty., El Paso, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

Appellant was convicted of the offense of reckless conduct by a jury in County Court at Law # 2 of El Paso County. The court assessed punishment at confinement in the county jail for 180 days, probated for six months.

Appellant's sole ground of error is that the court erred in overruling his objection to the court's charge because the court failed to charge on the offense of assault which appellant contends is a lesser included offense to reckless conduct under the 1974 Penal Code. Appellant is mistaken in this assumption.

Article 37.09, Vernon's Ann.C.C.P., provides that 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; (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.

V.T.C.A. Penal Code, Secs. 22.01 to 22.04, provide that reckless acts that cause bodily injury constitute assault, but that reckless acts that fall short of injuring another are excluded. V.T.C.A. Penal Code, Sec. 22.05 (Reckless Conduct) applies to those acts that fall short of injuring another (emphasis added). Accordingly, reckless conduct is *51 a lesser and included offense to assault under the Penal Code. This is exactly the reverse of appellant's contention.

The judgment is affirmed.

Opinion approved by the Court.