# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- CR Gilbert CISNEROS , Appellant

v. The STATE of Texas, Appellee From the 365th Judicial District Court, Dimmit County, Texas Trial Court No. 15

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- DCRAJA Honorable Amado J. Abascal, III, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justic e Irene Rios, Justice Delivered and Filed: October 31, 2018 AFFIRMED A jury convicted Gilbert Cisneros of the offense of aggravated assault with a deadly weapon . On appeal , Cisneros argues the trial court erred by denying his request for a jury instruction on reckless driving , which he claims was a lesser

- included offense under the circumstances of this case . We affirm. B ACKGROUND Cisneros was indicted for th e offense of aggravated as sault. The indictment alleged two manners for commission of the offense. First, the indictment alleged Cisneros intentionally,04

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- knowingly, or recklessly caused bodily injury to the victim, b y causing a motor vehicle to strike the victim, and the vehicle was a deadly weapon. Second, the indictment alleged Cisneros intentionally, knowingly, or recklessly caused serious bodily injury to the victim by causing a motor vehicle to strike the victim. Cisneros pled not guilty to the allegations in the indictment. At trial , the State presented evidence show ing that in the early morning hours of November 21, 2014 , Cisneros drove to a convenience store in Carrizo Springs, Texas , to buy gas for the vehicl e he was driving

. While Cisneros went inside to pay, Cisneros’s passenger, Nestor Padilla, began to pump gas. Vanessa Flores and Robert Titsworth were in the store’s parking lot standing by a parked car . When Cisneros returned to the vehicle, Titsworth approached Padilla and Cisneros and started to fight with Padilla

. Flores a nd several individuals urged Titsworth to walk away from Padilla and Cisneros . As Flores and Titsworth were walking away, Cisneros drove up behind them and hit them with the vehicle

. After hitting Flores and Titsworth, Cisneros reversed the vehicle and sped away from the convenience store

. The entire incident w as recorded on the store’s security

camera s and the video recording s were played at trial. Flores’s knee was cut when she w as pinned b etween the vehicle driven by Cisneros and a parked car. A fter the incident, Flores went to the emergency room, where she received medical treatment, including fourteen sutures, for the cut to her knee

. Cisneros testified at trial, claiming that he had hit Flores and Titsworth by mistake

. Cisneros claimed the vehicle he was driving, which belonged to his girlfriend, was not in very good condition. The vehicle had problems with the transmission, requiring Cisneros to “jiggle through the gears,” and it had problems with the power steering , making it difficult for Cisneros
to steer . C isneros further testified that Titsworth had scared him and he had panicked. Cisneros claimed he had hit Flores and Titsworth w ith the vehicle because he was trying to call 9

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- cell phone and to leave the area quickly. According to Cisneros, he did not see Flores or Titsworth in front of him and he did not realize that he had hit anyone with the vehicle; however, Cisneros did realize that he had “ bumped in to a car.” At the charge conference, Cisneros requested jury instruction s on deadly conduct and reckless driv ing. The trial court granted Cisneros’s request as to deadly conduct but denied his request as to reckless driving. The trial court also decided to instruct the jury on the offense of simple assault. Therefore, the jury was instructed on aggravated assault and two lesser

- included offenses, deadly conduct and simple assault. The jury was not instructed on reckless driving. The jury convicted Cisneros of the offense of aggravated assault with a deadly weapon

. Cisneros elected to have punishment assessed by the trial court. The trial court sentenced Cisneros to five years in prison

. Cisneros appealed. D I SCUSSION In his sole issue, Cisneros argues the trial court erred in denying his request for a jury instruction on reckless driving. Cisneros argues that, under the circumstances of this case, reckless driving was a lesser

- included offense of aggravated assault. Cisneros argues he satisfies the two

part test set out in Hall v. State , 225 S.W.3d 524, 53 5

- 3 6 (Tex. Crim. App. 2007) , for determining if a defendant is entitled to a lesser

- included

- offense instruction

. Under Hall , the first s tep is to determine i f the requested instruction pertains to an offense that is a lesser

- included offense of the charged offense, which is a matter of law. Bullock v. State , 509 S.W.3d 921, 924 (Tex. Crim. App. 20 16 ) ; Hall , 225 S.W.3d at 535

. The second st ep is to determine if there is evidence in the record that supports giving the instru ction to the jury. Bullock , 509 S.W.3d at 924

- 25 ; Hall , 225 S.W.3d at 53 6 . The second step requires some evidence in the record that would permit a jur y to rationally find that, if the defendant is guilty, he is guilty only of the lesser offense. Bullock , 509 S.W.3d at 925; Hall , 225 S.W.3d at 53 6 . T he State agrees that Cisneros satisfies the first step of the Hall test ,04

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- but not the second step of the Hall test. Therefore , a ccording to the State, the trial court’s refusal to instruct the jury on reckless driving was not error. For purposes of analyzing this case, we will assume , without deciding, the trial court erred in refusing to instruct the jury on reckless driving . W e, therefore, confine our analysis to w hether Cisneros was harmed by the alleged error. Preservation of charge error does not become an issue until an appellate court evaluate s harm. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) ; Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 198 4 )

. In this case, Cisn eros preserved any error by objecting in the trial court

. Generally, when jury

- c harge error has been preserved, we rev erse if the error in the court’s charge resulted in some harm to the accused. Ngo , 175 S.W.3d at 743 ; Almanza , 686 S.W.2d at 171

. Cisneros argues that he was harmed by the refusal to instruct the jury on reckless driving because the punishment for aggrav ated assault exceeds the punishment for reckless driving. The State counters that Cisneros was not harmed by the refusal to instruct the jury on reckless driving for the reasons stated in Masterson v. State , 155 S.W.3d 167, 171 (Tex. Crim. App. 2005). In Masterson , t he Court of C riminal Appeals reiterated that a jury’s failure to find an intervening lesser

- included offense may , in appropriate circumstances, render a failure to instruct

on a re quested lesser

- included offense harmless

. Id

. (citing Saunders v. State , 913 S.W. 2d 564, 572 (Tex. Crim. App. 1995)). T he Court of Criminal Appeals reasoned that “the harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doub t or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.” Id . “The intervening lesser offense is an available compromise, giving the jury the ability to hold the wrongdoer accountable without having to find him guilty of the charged (greater) offense.” Id . An instruction regarding an04

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- intervening lesser offense does not automatically foreclose harm because in some circumstances that intervening offense may be the least plausible theory under the evidence. Id . However, if the jury’s rejection of the intervening lesser offense indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense , the appellate court can conclude that the intervening offense instruction renders the error harmless

. Id . at 171

- 72. We must first determine if the jury in this case was charged on an intervening lesser

included offense. An intervening lesser

- included offense is one that “ is between the requested lesser offense and the offense charged.” I d

. at 171. In this case, t he requested lesser offense was reckless driving, which is a misdemeanor punishable by a fine not to exceed $200 and/or confinement in the county jail for not more than thirty days. T EX
. T RANS P
. C ODE A NN
. § 545.401(b). The potential interven ing lesser

- included offense was simple assault, which is generally a Class A misdemeanor , punishable by a fine not to exceed $4000 and /or confinement in jail not to exceed one year

. T EX
. P ENAL C ODE A NN
. § § 12.21 , 22.01(b). Finally, t he greater, cha rged offense was aggravated assault, which is a second degree felony punishabl e by a fine not to exceed $10,000 and/ or a term of imprisonment from two to twenty years. Id . § § 12.33 , 22.02 (a),(b)

. We conclude simple assault qualifies as an intervening lesser

- included offense in this

case , and therefore, Masterson applies. Under Masterson ’s analysis , we consider whether the jury rejected the intervening lesser

included offense. 155 S.W.3d at 171. We also consider the plausibility of the intervening less er included offense. Id

. Therefore, if the jury rejected simple assault , and that offense was not “the least plausible theory under the evidence , ” then the trial court’s refusal to instruct on reckless driving was harmless. See i d

. Here, the jury was in structed that a person commits the offense of simple assault if he recklessly causes bodily injury to another. Under the evidence presented , simple assault was a04

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- realistic option for the jury. T he State’s a ggravated assault theories were based on Cisneros either using or exhibiting the vehicle in a manner that met the definition of deadly weapon , or Flores suffering serious bodily injury. If the jury found (1) Cisneros operated the vehicle recklessly , (2) Fl ores suffered bodily injury but the vehicle was no t a deadly weapon, and (3) Flores did not suffer serious bodily injury, then the jury would have found Cisneros “not guilty” of aggravated assault. Under this scenario , all the elements of simple assault would have been proven and a conviction for that les ser - included offense would have been appropriate

. Additionally, the nature and extent of Flores’s injury was contested at trial , but the fact that Flores suffered some bodily injury was
not. Bodily i njury may be an element of si mple assault, but it is not an element of reckless driving. 1 We conclude that under the evidence presented simple assault was not “the least plausible theory under the evidence.” See id

. The intervening lesser offense was an available compromise in this case; it gave the jury the ability to hold Cisneros accountable without having to find him guilty of the greater offense. See id

. T he jury’s conviction of Cisneros for aggravated assault wi th a deadly weapon despite the availability of simple assault shows that the jury legitimately believed that Cisneros was in fac t guilty of the greater offense

. Because the jury rejected simple assault, and that offense was not the least plausible theory u nder the evidence , the trial court’s refusal to instruct on reckless driving was harmless

. See id

. at 171

- 72; Guzman v. State , 188 S.W.3d 185, 194 n.20 (Tex. Crim. App. 2006) ( recognizing in attempted murder appeal that any error in refusing a deadly condu ct instruction would have been harmless in light of the jury’s rejection of the intervening lesser

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1 A person commits the offense of assault by intentionally, knowingly, or recklessly causing bodily injury to another. T EX
. P ENAL C ODE A NN
. § 22.01(a)(1). A person commits the offense of reckless driving by driving a vehicle in willful or wanton disregard fo r the safety of persons or property. T EX
. T RANS P
. C ODE A NN
. § 545.401(a).04

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- included offense of aggravated assault). Therefore, we conclude that any error in denying a reckless driving instruction was harmless. We overrule Cisneros’s sole issue. C ONCLUSION The trial court’s judgment is affirmed. Karen Angelini, Justice Do not publish