C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

AB RA HA M B EN AV I DE S, Ap pe lla nt, V. TH E ST AT E O F TE XA S, Appellee
. § § § § § § § No . 0 8- 07 -0 01 93 -C R

Appea l from the 211th District Court of De nto n Co un ty , T e xas (TC# F2006- 1513-C)

O P I N I O N Ap pe lla nt w a s c onvic te d o f a g g ra vate d a ssa

ult and se nte nc e d to 2 y e ars c on fi ne me nt i n the Institut ional Division of the Texas Depar tment of Criminal J ustice. On a ppeal, Appe llant raises one issue arguing it wa s err or to not include the lesse r-include d offe nse instruction to the jur y . We a ff ir m. On July 4, 20 06 , Chri sto ph e r G a lla g he r s aw A pp e lla nt b low ingdu st a

nd de br is f ro m hi s dr ive wa y on to t he c ar i n M r. Ga lla g he r’ s d ri ve wa y . T he ne xt day , M r. Ga lla g he r c omp la ine d to him about that and also the fa ct that Appellant’ s dog had bee n barkingthe past couple of nig hts. The men ha d a ver

bal ar g ument wher e both used prof ane la ng uag e. Mr. Ga llag her te stified he later sa w Appellant g o to his car, a nd next s aw him ca

rry ing a g un and pointing it at him. Mr. Gallagher put his hands up a nd backe d off until he ende d up by a tre e. Mr. Ga llag her sa

w Appellant wa s g oing to shoot, so he turne d and ducke d befor e Appe llant fired the gun. Appellant testified that Mr. G allag her w as beating on his door, a nd they started a rguing-2-

about the ca

r and the dog s barking . L ater , Appellant we nt outside to ge t his cell phone fr om the
car , and Mr. Ga llag her w as still y elling at him. Appellant testified that Mr. Gallagher trie d to ge t into his car throug h the passeng er door , but it was locked. Mr. G allag her star ted comingaround the ca r and r eac hed in and g rabbe d Appellant’s a rm. Appellant stated he then pulled the gun from under

neath the c up holder a

nd pointed it at Mr. Gallag her to g et him to let him go. He stated Mr. Ga llag her be g an bac king up but wa s still actinglike he wa s g oing to hit him. Appellant would point the gun at him wheneve r he se emed like he was g oing to try and hit him. Appellant stated that when Mr. Ga llag her star ted g oing inside, he pulled the clip out, and fire d the g un into the tree to diseng ag e it. At trial, counsel f or Appe llant reque sted the inclusion of a le sse r- inc lud e d o ff

e ns e ins tr uc tio n f or de a dly c on du c t, whic h w a s d e nie d b y the tr ia l c ourt
. In his sole issue, Appellant contends the trial court c ommitt ed re versible e rror by denying his re qu e st f

or a jur y ins tr uc tio n o n th e le sse r- inc lud e d o ff e ns e of de a dly c on du c t. Ade fe nd ant i s entitled to the char g e if (1) the offe nse is a lesser -included of fense of the c harg ed off

ense, which is d e te rm ine d b y

c omp ari ng

the e le me nts of

the g re a te r o ff

e ns e , a s p le d in

the ind ic tme nt, wi th the eleme nts in the lesser off ense, a nd (2) if the re is some e vidence in the rec ord fr om which a rational jury

could ac quit the defe ndant of the g reater off ense while convictinghim of the lesser included off

ense. Se gu nd o v . S tate , 270 S.W .3d 79, 90-1 (Te x .Crim.App. 2008). The e vidence must establish the lesser-inc luded offe nse as a valid rational a lternative to the c harg ed off ense. Id . at 91. Th e State c on c e de s in

the ir br ie f t hat th e g re a te r o ff

e ns e of a g g ra vate d a ssa

ult , a s p le d in this case, c ontains the lesser- included off ense of deadly conduct. We agree . Se e Be ll v . S tate , 693 S.W .2d 434, 439 (Tex.Crim.App. 1985)(finding rec kless conduct, whic h is identical to the-3-

curr ent dea dly

conduct statute, to be a lesser -included of fense of ag g ravated assault with an indictment simi lar to the one in this case). The second step in the a naly sis requires us to look at wh e the r t he re is s ome e vid e nc e in t he re c or d f

ro m w hic h w ou ld a llo w a ratio na l jury

to o nly convict on the lesse r off

ense. Mr . Be navides’ te stimony shows he intentionally

pointed the g un at Mr. Ga llag her. Mr . Be navides stated, “ Ig rabbe d my g un and I pointed it at him.” He pointed the g un a t hi m so that Mr . G a lla g he r w ou ld l e t hi m g o a nd le ave him

a lon e . M r. B e navid e s d id
no t ke e p th e g un

po int e d at Mr . G a lla g he r, but w he n h e wa s a c tin g lik e he wa s g oin g to h it h im, Mr. B enavide s would point the gun ba ck at him. He pointed the g un at him to scare him away
. This testimony

would preve nt a rational jury from beingable to convic t on only the lesser

included off

ense. The testimony

shows that the pointing of the gun was intentionally and kn ow ing ly

do ne . Si nc e the re wa s n o e vid e nc e to t he c on tr ary , a

ra tio na l jury

wo uld no t be a ble to find that Appellant a cted r eckle ssly and not intentionally . Appellant ar g ues that the State foc used on the firingof the we apon, but the indictment and c harg e provide d that for the use or exhibit ing of the g un . We fi nd

the tr ia l c ourt

pr op e rl y de nie d th e inc lus ion

of the le sse r- inc lud e d o ff

e ns e instruction. I ssue One is ove rruled. The trial c ourt ce rtified that Appe llant had a r ight to appe al but the ce rtification does not contain the de fenda

nt’s signature indicating that he was infor med of his rig hts to appeal a nd file a pro se petition for discre tionary revie w. The c ertification is defective a nd it has not been
corr ecte d by

the trial cour

t or Appellant’s attorney . In order to remedy

this defec t, we ORDER Appellant’s attorney , pursuant to T EX .R.A PP .P. 48.4, to send Appellant a c opy of our opinion and judgme nt, notify

Appellant of his rig ht to file a pr o s e petition for discre tionary revie w, and inform Appellant of

the per tinent deadlines. SeeT EX .R.A PP .P. 48 .4 , 6 8. Ap pe lla nt’ s atto rn e y

is-4-

further ORDERED to comply

with all of the re quirements of Rule 48.4. We affir m Appellant’s convic tion.
September 23, 2009 DAVI D WEL L I NGTONCHEW, C hief Just ice B e f o r e C h e w , C
. J. , M c C l ur e , a n d C ar r , JJ. C arr, J
. (N o tP art i ci p at i n g) (Do Not Publish)