## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-15-00153-CR NO. 02-15-00154-CR NO. 02-15-00155-CR

ANTHONY ROBERT SA FIAN APPELLANT V. THE STATE OF TEXAS STATE

---------- FROM THE 396TH DI STRICT COURT OF TARRANT COUNTY TRIAL COURT NOS. 138362 9D, 1383630D, 1386101D

---------- 

### MEMORANDUM OPINION 1

---------- In three points, appellant Anthony Ro bert Safian appeals his convictions for aggravated assault on a p ublic servant and possessi on of less than one gram

1 See Tex. R. App. P. 47.4.2 of heroin. 2 In a fourth point, he appeals a de adly weapon finding associated with his conviction for evading arrest while using a vehicle. 3 We overrule all of appellant’s points; modify t he judgment in the heroin possession case, trial court number 1386101D; 4affirm that judgment as modi fied; and affirm the judgments in trial court cause numbers 138362 9D and 1383630D in all respects. Background Facts In September 2014, Fort Worth Polic e Department (FWPD) Officer Juan Trujillo and another officer, while unde rcover, were monitoring a home where they suspected that illegal drug sales were occurring. The home was in an area in which drug-related crime was common. The officers saw a truck pull into the driveway of the home, and ap pellant got out of the truc k and went inside. Less than five minutes later, he left the home, go t back into the truck, and drove away. In an unmarked car, Officer Trujillo an d his partner began to follow him. Eventually, appellant stopped in th e middle of a narrow residential road that had overgrown vegetation and uneven pavement on its sides. 5 Officer Trujillo’s partner honked a ho rn several times, but the truck remained in the road

2 See Tex. Penal Code Ann. § 22.02(a )(2), (b)(2)(B) (West 2011); Tex. Health & Safety Code Ann. § 481.115(a)–(b) (West 2010).

3 See Tex. Penal Code Ann. § 38.04(a) (West Supp. 2015).

4 This cause number rela tes to appellate cause number 02-15-00155-CR.

5 Officer Trujillo opined thattwo cars would not be able to safely pass each other on the road. He also testifie d that the road has deep potholes.3 approximately fifteen feet in front of the o fficers’ car. The officers saw appellant lean toward his truck’s center console; O fficer Trujillo believed that appellant was “ingesting . . . narcotics in his arm.” Officer Trujillo called for a marked poli ce unit to join hi m and his partner there. FWPD Officer Matthew Pearce a rrived. He parked his patrol car about ten feet in front of appellant’s truck with the vehicles facing each other and got out of the car. He saw th e truck remaining in the middle of the road, which he believed to be a traffic offense. Afte r Officer Pearce had taken a few steps toward appellant’s truck and had unhol stered his gun, according to Officer Trujillo, appellant sat up “re ally straight,” put the tr uck into gear, and quickly “sped towards Officer Pearce.” Officer Trujillo saw Officer P earce’s eyes “get really big” as the truck sp un its tires and moved toward Officer Pearce. From Officer Trujillo’s vantage poin t, he initially thought thatthe truck had hit Officer Pearce. But Officer Trujillo then saw Officer Pearce ge t into his patrol car and begin following appellant. Fr om a distance, Officer Tru jillo and his partner also followed Officer Pear ce and appellant. After a long chase in which appellantran stop signs, drove the wrong way into oncoming traffic to avoid a traffic bu ildup, and traveled at speeds of forty to fifty miles over the limit, he crashed wi th another vehicle. Appellant’s truck sustained heavy damage. 6 Officer Pearce approached the truck and

6 Exhibits that the trial court admitted show that appellant’s truck sustained significant damage and th at the other vehicle invo lved in the accident had4 commanded appellant to showhis hands. Appellant did not do so, and because the driver’s side door to the truck would not open, Officer Pearce broke appellant’s window. Officer Pearce said to appellant that ap pellant had almost “killed all these people,” and he also told ap pellant that he was in a “lot of trouble” because he had “[run] from [Officer Pearce].” Appellant said to Officer Pearce, “I can’t believe I did that.” Later, Officer Pearce again told appellant that he had run from the police. After appellant got out of the truck, the police conducted an inventory of it. On the driver’s-side floorboard of the tru ck, Officer Pearce fo und a silver metal spoon with heroin on it. 7 Officer Pearce also foun d needles “strewn throughout the vehicle.” Through separate indict ments, a grand jury ch arged appellant with aggravated assault against a public servant, possession of less than a gram of heroin, and evading arrest or detention while using a vehi cle. The indictment for appellant’s evading arrest charge included a paragraph al leging that he had used a deadly weapon during that offense. All three indict ments contained a paragraph alleging t hat appellant had been previous ly convicted of at least one

substantial damage to its fr ont end. A video recordin g admitted into evidence indicates that the driver of the other vehicle sustai ned physical injuries that required a neck brace and tr ansport to a hospital.

7 The spoon had a dark substance on it, and the bottom side of the spoon appeared to be burnt. A forensic ch emist tested the dark substance on the spoon and determined that it was heroin.5 felony; the indictment for possession ofheroin alleged that he had been previously convicted of two state jail felo nies. Appellant filed several pretrial motions, chose the trial court to assess hi s punishment if he was convicted of the charges, and pled not guilty to all of th em. He also pled not true to the indictments’ enhancement and deadly weapon allegations. At trial, Officer Pearce testified that as he pulled up to the scene, his patrol lights were flashing, but appellant was lo oking down while sitting in the truck. Officer Pearce explained that when he got out of his car, he and appellant “locked eyes.” Appellant looked surp rised to see Officer Pearce there. According to Officer Pearce, from just over ten feet aw ay, appellant “yanked . . . down” the gearshift, “hit the gas[,] and accelerated towards” Officer Pearce. Officer Pearce explained that all of this “h appened kind of simu ltaneously,” within the span of just a fe w seconds. Officer Pearce’s driver’s-si de door was still open, so he retreated to his car and threw himsel f inside of it to avoid getting hit. As appellant passed by the driv er’s side door, most of Officer Pearce’s body was in his car, but his legs were hanging out. Offi cer Pearce testified that he was afraid of getting hit and of appellant hitting th e door, which could have pinned Officer Pearce’s legs. Officer Pear ce opined that appellant’s tr uck came “within a foot of striking [his patrol car’s] door.” After receiving the pa rties’ evidence and ar guments, the jury found appellant guilty of all of th e charges and found that he had used a deadly weapon6 while evading arrest. 8 The trial court received fu rther evidence and arguments concerning appellant’s punishment. The court found the enhancement paragraph in each indictment to be true and sentenced him to eighteen years’ confinement for evading arrest or detenti on while using a vehicl e, eighteen years’ confinement for aggravated assault agai nst a public servant, and ten years’ confinement for possessing less than a gram of heroin. The trial court included a deadly weapon finding in the judgments for evading arre st and for aggravated assault against a public servant and ordered all of the sentences to run concurrently. Appellant brought these appeals. Evidentiary Sufficiency In his first, second, and fourth points, appellant co ntends that the evidence is insufficient to support hi s convictions for aggravated as sault of a public servant and possession of less than a gram of heroin and to support the jury’s finding that he used a deadly weap on during the evading arre st offense. In our dueprocess review of the suffici ency of the evidence to su pport a conviction, we view

8 The jury deliberated for hours. At one point during the deliberation, the jury sent a note to the trial court that st ated that the jury had made a decision on the charges for evading arrest and possessi ng heroin but that the jury was at a stalemate on the aggravated assault charge. The trial court gave the jury an Allen charge, and less than an hour later, the jury found appellant guilty of aggravated assault. See Allen v. United States , 164 U.S. 492, 501–02, 17 S. Ct. 154, 157 (1896); see also Barnett v. State , 189 S.W.3d 272, 27 7 n.13 (Tex. Crim. App. 2006) (“An Allen charge is a supplemental char ge sometimes given to a jury that declares itself deadlocked. It reminds the jury that if it is unable to reach a verdict, a mistrial will resul t, . . . and there is no guar antee that a second jury would find the issue any easier to resolve.”).7 all of the evidence in the light most favo rable to the verdict to determine whether any rational trier of fact could have fo und the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); see also Drichas v. State , 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (applying the Jackson standard to review a deadly weapon finding). This standard gives full play to the responsibilit y of the trier of fact to resolve conflicts in the testimony, to we igh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs , 434 S.W.3d at 170. The trier offact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Pr oc. Ann. art. 38.04 (West 1979); Dobbs , 434 S.W.3d at 170. Thus, wh en performing an evidentiary sufficiency review, we may not re-eval uate the weight and credibility of the evidence and substitute our judgme nt for that of the factfinder. Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The standard of review is the same for direct and circumst antial evidence cases; circ umstantial evidence is as probative as direct evidence in esta blishing the guilt of an actor. Dobbs , 434 S.W.3d at 170; Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We determine whether the necessaryinferences are reasonable based upon the cumulative force of the evid ence when viewed in the light most favorable to the verdict. Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see Temple v. State , 390 S.W.3d 341, 360 (Tex . Crim. App. 2013). We8 must presume that the factfi nder resolved any conflicti ng inferences in favor of the verdict and defer to that resolution. Jackson , 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs , 434 S.W.3d at 170. Aggravated assault In his first point, appellant argues t hat the evidence is insufficient to support his conviction for agg ravated assault of a publicservant. To obtain a conviction for aggravated assault of a publicservant under the facts of this case, the State was required to prove that appellant intentionally or knowingly threatened Officer Pearce with imminent bo dily injury, used or exhibited a deadly weapon (his truck), and knew that Offi cer Pearce was a pub lic servant and was lawfully discharging an official duty. See Tex. Penal Code An n. §§ 22.01(a)(2) (West Supp. 2015), 22.02(a)(2), (b)(2)(B). A jury may infer a defendant’s intent from circumstantial evidence such as the defendant’s wo rds or conduct. Lozano v. State , 359 S.W.3d 790, 814 (Tex. App. —Fort Worth 2012, pet. ref’d). Appellant expressly limits his argument to challenging the proof concerning the intentional or knowing threat of Office r Pearce with a dead ly weapon; he does not assert that the evidence is insufficientto prove that he knew Officer Pearce was a public servant who was la wfully discharging an offi cial duty. The gist of appellant’s argument is that the eviden ce shows only that he “unthinkingly attempted to get away from [Officer] Pe arce by driving past him”; appellant contends that the evidence of his “operati on of [the truck] was not indicative of an attempt to conveya threat of imminent bodily in jury.” The State contends that9 appellant’s actions and words allowed a rational jury to find that he intentionally or knowingly threatened Officer Pearce. This is the classic exam ple of an appeal in which we must defer to the jury’s resolution of conflicti ng reasonable inferences th at the evidence produced. See Jackson , 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs , 434 S.W.3d at 170; see also Raybon v. State , No. 02-12-00071-CR, 2013 WL4129126, at *5 (Tex. App.—Fort Worth Aug. 15, 2013, pet. dism’d) (mem. op., not designated for publication) (“[T]he jury was entitled to choose between two reasonable inferences, and we must defer to that choice.”). Specif ically, the jury could have reasonably inferred that appellant intent ionally or knowingly threatened Officer Pearce with a deadly weapon from (1) Officer Trujillo’s testimony that upon appellant’s seeing Officer Pearce, appellant “sped to wards [him]” at a high enough rate of speed to spin his tires and kick up dust fr om the rear of the truck; (2) Officer Trujillo’s testimony that appell ant’s truck drove close enough to Officer Pearce that he thought it hit Officer Pear ce; (3) Officer Pearce’s testimony that after he and appellant made eye contact and he told appella nt to not move, appellant “yanked . . . down” the gearshift, “hit the ga s[,] and accele rated towards [Officer Pearce]”; (4) Officer Pearce’s test imony that he had to throw himself into his patrol car to avoid getting hit and th at the truck would ha ve struck him had he not done so; 9 (5) Officer Pearce’s testimony that appellant’s truck came within a

9 Given this evidence, we cannot agree with appellant’s statement that “any fear allegedly felt by [Officer] Pear ce was manifestly not reasonable.”10 foot of striking his patrol car’s door; an d (6) Officer Pearce’s testimony that he feared for his safety. Cf. Swartz v. State , Nos. 05-03-00577-CR, 05-03-00578- CR, 05-03-00579-CR, 2004 WL 1234047, at*1, *5 (Tex. App.—Dallas June 4, 2004, pets. ref’d) (not designated for public ation) (holding that the jury could infer a defendant’s intent to threaten an officer when the defendant smiled and accelerated toward the officer and almost hit the officer); see also Creighton v. State , No. 08-09-00022-CR, 2011 WL 743073, at *3 (Tex . App.—El Paso Mar. 2, 2011, no pet.) (not designated for publ ication) (reaching the same conclusion under similar circumstances) . Conversely, a jury coul d have reason ably inferred that appellant did not intend to threaten Officer Pearce, but only had the mindset of evading him, from (1) the evidence indicating that the road’s conditions necessarily required appellant to drive close to Officer Pe arce to get around him; (2) the officers’ testimony that appellant did not attempt to dr ive toward Officer Pearce again after passing him; (3) the heroin found in appella nt’s truck, which may have given him motivation to evade ca pture; (4) Officer Pearce’s statements after appellant’s wreck thatfocused on appellant’s ev asion of him and did not mention that he had felt th reatened; (5) Officer Pearce’s testimony that he did not see appellant turn the truck specifically in his direction; an d (6) the evidence showing that appellant was not violent or hostile toward Officer Pearce during their conversation that oc curred after the wreck. Viewing the evidence in the light mostfavorable to the jury’s verdict and deferring to the jury’s im plicit choice between th ese reasonable conflicting11 inferences, we conclude that a rational jury co uld have found beyond a reasonable doubt that appel lant intentionally or knowingly threatened Officer Pearce with a deadly weapon. See Jackson , 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs , 434 S.W.3d at 170. We therefore conc lude that the evidence is sufficient to sustain appellant’s convic tion for aggravated assault, and we overrule his first point. Deadly weapon finding on evading arrest conviction In his second point, appellant contends that the evidence is insufficient to support the deadly weapon finding associated with hi s conviction for evading arrest. As we have recently explained, A deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” For evidence to be sufficient to su stain a deadly weapon finding, it must demonstrate that the object me ets the statutory definition of a deadly weapon, that the deadly we apon was used or exhibited “during the transaction from which” the felony conviction was obtained, and that other people were put in actual danger. “A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury . Specific intent to use a motor vehicle as a deadlyweapon is not required.” Daniel v. State , No. 02-14-00246-CR, 2015 WL 4043351, at *5 (Tex. App.—Fort Worth July 2, 2015, no pet.) (citations omitted); see also Tex. Penal Code Ann. § 1.07(a)(17) (West Supp. 2015); Cates v. State , 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (“An automob ile can be a deadly weapon ifit is driven so as to endanger lives.”).12 We cannot agree with appellant’s po sition that the State failed to prove these elements. The evid ence shows that in the afte rnoon rush hour and on an approximate two-mile stretch of road way where other cars were present, appellant committed numerous traffic violations, including running stop signs and driving into oncoming traffic; 10 that he traveled at speeds of forty to fifty miles per hour over the speed limit; and that he was eventually in volved in an accident that disabled the automobile that he crashed wi th and caused its airbag to deploy, caused physical pain to the driver of that automobile , and sprayed debris from the two vehicles across a roadway. Offi cer Pearce testified more than once that appellant’s truck was capable of causing death or serious bodily injury, and he also explained that there was significant traffic on the road where the accident occurred at that time of day. Viewing all of the evidence in t he light most favorable to the deadly weapon finding, we conclude that a ratio nal jury could have found beyond a reasonable doubt that appellant’s truc k qualified as a deadly weapon in the manner of its use during the evading arrest offense. See Tex. Penal Code Ann. § 1.07(a)(17)(B); Drichas , 175 S.W.3d at 798; Daniel , 2015 WL 4043351, at *5– 6; see also State v. Sneed , No. 09-14-00232-CR, 2014 WL 4755502, at *2–3

10 Officer Pearce testified that appella nt “crossed into oncoming traffic to get around the traffic that was slow moving at t he light.” [Emp hasis added.] Furthermore, the video from Officer Pear ce’s body camera shows the presence of other cars at the scene of the accident. And the ac cident occurred close to a Wal-Mart store. Given these facts, we ca nnot agree with appe llant’s assertion on appeal that there is “little evidence that other motorists were present.”13 (Tex. App.—Beaumont Sept. 24, 2014, pet. ref’d) (mem. op., not designated for publication) (holding that evidence wa s sufficient to support a deadly weapon finding when in the course of evading arrest, the de fendant exceeded the speed limit, swerved in and out of traffic, struck a curb on two occasions, and failed to stop or slow down at intersections); Turner v. State , No. 08-11-00318-CR, 2013 WL 5516447, at *4 (Tex. Ap p.—El Paso Oct. 2, 2013, no pet.) (not designated for publication) (holding that the evidence was sufficient to showthat a defendant used his vehicle as a dead ly weapon when he exceed ed the speed limit around other vehicles, swerved bet ween lanes, drove throug h a red light, and nearly collided with another car). 11 We overrule appe llant’s second point. Possession of heroin In his fourth point, appellant asserts that the evidence is insufficient to support his conviction for possessing less than a gram of heroin. To obtain appellant’s conviction for th at offense, the law required the State to prove that he intentionally or knowingly possessed less than a gram of heroin. See Tex. Health & Safety Code Ann. § 481.115(a)–(b). He possessed the heroin if he had actual care, custody, cont rol, or management of itand knew that it was a controlled substance. Id. § 481.002(38) (West Supp. 2015); Evans v. State , 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The State must have proved through direct or circumstantial ev idence that his connection with the heroin was more

11 We have reviewed the th ree comparative cases cite d in appellant’s brief on this point, and we conclude th at they are distinguishable.14 than fortuitous. Evans , 202 S.W.3d at 161–62. Links that may establish a defendant’s connection to illegal drugs in clude the defendant’s presence when a search is conducted, whether the contra band was in plain view, the defendant’s proximity to and the accessibility of the narcotic, whet her the defendant possessed other contraband or narcotics when arrest ed, whether the defendant attempted to flee, whether the defendant made furtive gestures, whether other contraband or drug paraphernalia were present, and whether the defendant owned or had the right to possess the place where the drugs were found. Id. at 162 n.12; see Burrell v. State , 445 S.W.3d 761, 765 (T ex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“It is not the number of links that is dispositive, but rather, the logical force of all the evidence, both direct and circumstantial.”). We conclude that the evid ence is sufficient to showthat appellant had care and management over the hero in and knew that it was a controlled substance. See Evans , 202 S.W.3d at 161. Specifically, the record shows that Officer Trujillo was conducting surveillan ce on a confirme d drug house; 12 that appellant went inside the house and left it minute s later; that appella nt then stopped his truck in the middle of a road while leani ng toward the cent er console (which Officer Trujillo perceived as appellant’s attempt to use drugs); that appellant became alarmed when he saw Officer Pe arce standing near the truck; that

12 Officer Trujillo testified that the poli ce had received comp laints that the house was a “narcotics location” and that the police had used someone to conduct a controlled purch ase of drugs there.15 appellant fled from the police after passing Officer Pearce; 13 and that Officer Pearce later discovered hero in, a burnt spoon, and severa l needles in plain view inside the truck that appella nt had solely occupied. Viewing these facts and the remaining evidence in the light most favo rable to the jury’s verdict, we conclude that the jury could have rationally found beyond a reasonable doubt that appellant intentionally or kn owingly possessed heroin. See Dobbs , 434 S.W.3d at 170; see also Harmond v. State , 960 S.W.2d 404, 406–07 (Tex. App.— Houston [1st Dist.] 1998, no pet.) (en banc) (holding th at evidence was sufficient to support a conviction for possession ofcocaine because the defendant was alone in a car with drug pa raphernalia in plain view and easily accessible to him). 14 We overrule appe llant’s fourth point. Alleged Jury Charge Error In his third point, appell ant argues that the trial court erred by denying his request for an instruction concerning deadl y conduct as a lesser-included offense in the jury charge for aggravated assaul t. All alleged jury-charge error must be

13 In his reply brief, appellant concedes th at it is “reasonable to infer that [his] flight indicates his consciousness ofguilt to the crime of possession of a controlled substance.”

14 Roberson v. State , which appellant relies on for comparison, is distinguishable. See 80 S.W.3d 730, 736–41 (Tex . App.—Houston [1st Dist.] 2002, pet. ref’d) (holding that the evidenc e was insufficient to link a defendant to drugs when the defendant drove a car thathad three occupants, the drugs were found close to one of the occupant’s seats, the occu pants gave different stories about details of their trip , and the defendant attempte d to disassociate himself from one of the passengers).16 considered on appellate review. Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a jurycharge, we first de termine whether error occurred; if error did not occur, our analysis ends. Id. After the parties rested and closed during the guilt -innocence phase of the trial, the trial court held a conference co ncerning the jury charge. During the conference, appellant’s counsel stated, [W]e would submit that there is evid ence to support a lesser included on deadly conduct, reckless -- dead ly conduct is a lesser-included offense of aggravated assault by thre at. And, basically, what has to be shown is use of a deadly we apon recklessly puts someone in danger of serious bodily injury. And we believe that there are facts that would support a finding that he acted recklessly even if he didn’t intend or knowingly threaten the officer when he drove by him. The trial court denied appella nt’s request to include t he offense of deadly conduct in the charge for aggravated assault. We use a two-step analysis to determ ine whether an appellant was entitled to a lesser-included offense instruction. Hall v. State , 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau v. State , 855 S.W.2d 666, 67 2–73 (Tex. Crim. App.), cert. denied , 510 U.S. 919 (1993). First, t he lesser offense must qualify as a lesser-included offense unde r article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v. State , 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). Second, so me evidence must exist in the record that would permit a jury to rationally find th at if the appellant is guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Rousseau , 855 S.W.2d at 672–73.17 An offense is a lesser-included offe nse of another offense, under article 37.09(1), if the indictment for the greater-i nclusive offense either: (1) alleges all of the elements of the lesser-included off ense, or (2) alleges elements plus facts (including descriptive averme nts, such as non-statutory manner and means, that are alleged for purposes of pr oviding notice) from which a ll of the elements of the lesser-included offense may be deduced. Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’ g). Both statutory elements and any descriptive averments allege d in the indictment for the greater inclusive offense should be compared to the statutory elements of the lesser offense. Id. If a descriptive averment in the indictment fo r the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descri ptive averment in t he indictment for the greater-inclusive offense, this should be factored into the lesser-included offense analysis in asking whether all of the el ements of the lesser offense are contained within the allegations of the greater offense. Id. As charged through the indictment pertinent to this point, a person commits aggravated assault on a public servant by in tentionally or knowingly threatening a public servant with imminent bodily injuryand using or exhibiting a deadly weapon during the commission of the offense. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2)(B). A person commits deadly conduct if he “recklessly engages in conduct that pl aces another in imminent danger of serious bodily injury.” Id. § 22.05(a) (West 2011).18 Appellant relies on the court of criminal appeals’ s decision in Bell v. State to contend that deadly conduct is a less er-included offense of aggravated assault by threat. See 693 S.W.2d 434, 439 (Tex. Cr im. App. 1985). There, the defendant fired four gunshots into his neighbor’s trailer, was convicted of aggravated assault, and cont ended on appeal that the trial court should have granted his request for a less er-included instruction on re ckless conduc t (which is now known as dead ly conduct). See id. at 436. In resolving that argument, the court of criminal app eals noted that whether one offense bears such a relationship to the offense charged so as to constitute a lesser included offe nse under [article 37.09] is an issue which must await a case bycase determination. A given section of the Penal Code may defi ne more than one way in which an offense can be committed. An allegation that an offense has been committed in one way may include a lesse r offense, while an allegation that the offense was committed in anothe r way would not include the lesser offense. Id. (citations omitted). The defendant in Bell had been charged through an indictment that alleged that he “knowingly and intentionally use[d] a deadly weapon , to wit: a firearm, and did then and there threat en George Smith with immine nt bodily injury by the use of said de adly weapon.” Id. at 437 (emphasis added) . In concluding that reckless conduct was a lesser-included offe nse of aggravated assault as charged under this language, the court of criminal appeals stated, We now turn to consider whether the State established commission of the lesser included offense of reckl ess conduct by proof of the same or less than all the facts required to establish the offense charged, aggravated assault by the use of a deadly weapon

.19 In this case, when the State estab lished the higher culpable mental state of intent or knowledge, it necessarily esta blished the lower culpable mental state of reckle ssness. The precise issue thus becomes whether proof of threaten ing another with imminent bodily injury by using a deadly weapon constitutes proof that the actor engaged in conduct that pl aced another in imminent danger of serious bodily injury.

. . . . Patently, threatening another with imminent bodily injury is engaging in conduct. When th at threat is accomplished by the use of a deadly weapon , by definition the victim is “exposed” to the deadly character of the weapon an d the inherent risk of serious bodily injury. The danger of serious bodily in jury is necessarily established when a deadly weapon is used in the commission of an offense . It follows, therefore, that pr oof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in co nduct that places another in imminent danger of serious bodily injury. We hold that under [article 37 .09], reckless conduct is a lesser included offense of “the offense charged” in the instant case because it is establis hed by proof of the sa me facts required to establish the commission of aggravated assault by the use of a deadly weapon. Id. at 438–39 (emphasis add ed) (citations omitted); see also Guzman v. State , 188 S.W.3d 185, 190 & n.9 (Tex. Crim. App. 2006) (citing Bell approvingly and holding that deadly conduc t was a lesser-included offe nse of aggravated assault under specific circumstances). But deadly conduct is no t a lesser-included offens e of aggravated assault under all circumstances. See Hall, 225 S.W.3d at 531, 535 (stating that the “pleadings approach is the sole test for determining in the fi rst step whether a party may be entitled to a lesser-include d-offense instruction” and noting that20 when “the greater offense may be commi tted in more than one manner, the manner alleged will determine the availability of lesser-i ncluded offenses”). And courts have distinguished Bell to hold that deadly conduct is not a lesser-included offense of aggravated assault when, as here, the indictment alleges that the defendant used or exhibited a deadly weapon. For example, in Miller v. State , Miller was indicted for aggravated assault against a public servant u nder the following language: “[Miller] did then and there intentionally or knowingly threaten [th e victim] with imminent bodily injury and did then and there use or exhibit a deadly weapon, . . . during the commission of said assault and the defendant did then and there know that the [victim] was then and there a public servant.” 86 S. W.3d 663, 664 (Tex. App.— Amarillo 2002, pet. ref’d) (e mphasis added). On appeal , Miller argued that the trial court should have charged the jury on deadly conduct as a lesser-included offense. Id. Distinguishing Bell, the Amarillo court held that Miller was not entitled to such a charge, explaining, In appellant’s case, . . . the i ndictment reads differently than the language used in the indict ment that was central to the Bell court’s disposition ofthat case. Whereas the indictment in Bell charged the defendant . . . wi th committing the offense of aggravated assault by “using” a de adly weapon, the indictment in appellant’s case charged appellant with committing the offense by “using or exhibiting” a deadly weap on. Thus, proving the offense as alleged in the indictment does not require proof that appellant “used” a deadly weapon; proof th at appellant “exhibited” a deadly weapon in the commission of the offense would suffice. The difference is dispositive, as it does not necessa rily follow that the danger of serious bodily injury is established when a deadly weapon is “exhibited” in the commission of the offense as opposed to being21 “used.” Therefore, under the circumstances of this case, deadly conduct is not a lesser-included o ffense of aggravated assault as charged because the statutory elem ents of deadly conduct would not necessarily be established by proofof the same or less than all the facts required to establish the commission of the offense charged. The trial court, therefore, did not comm it error in refusing to charge the jury on deadly co nduct as a lesser-included charge. Id. at 666–67 (emphasis added). We agree with the reasoning in Miller that the necessary implication of the elements of deadly conduct (i n particular, placing anothe r in “imminent danger of serious bodily injury”) that arises when a defendant threatens bodily injury by using a deadly weapon does not necessarily arise wh en a defendant threatens bodily injury by using or exhibiting a deadly weapon. 15 See id. ; see also Schreyer v. State , No. 05-03-01127-CR, 2005 WL 1793193, at *7–8 (Tex. App.— Dallas July 29, 2005, pet. ref’d) (not designated for publication) (following Miller and determining that deadly conduct was not a lesser-included offense of aggravated assault under simi lar circumstances). Therefor e, we hold that deadly conduct was not a lesser-included offens e of aggravated assault under article 37.09 as the latter off ense was charged here. 16 See Tex. Code Crim . Proc. Ann.

15 We recognize that another court has reached a conclusion contrary to the one in Miller

. See Amaro v. State, 287 S.W.3d 825, 829 (Tex. App.—Waco 2009, pet. ref’d).

16 Appellant’s indictment fo r aggravated assault on a public servant states, ANTHONY ROBERT SAFIAN, hereinaf ter called Defendant, in the County of Tarrant and State aforesai d, on or about the 2nd day of September 2014, did22 art. 37.09; Miller , 86 S.W.3d at 666–67. We hold t hat the trial court did not err by denying appellant’s request for an instruction on deadlyconduct, and we overrule his third point. See Hall, 225 S.W.3d at 528. Modification of Judgment Finally, although appellant has not raised any argument concerning the language of the trial court’ s judgment related to th e heroin-possession charge, we have noticed that the co urt’s judgment describes that offense as a “3RD DEGREE FELONY” even though appellant was convicted of a state jail felony with a punishment enhanc ement to the third-degree felony range. See Tex. Health & Safety Code Ann. § 481.115(b) (classifying po ssession of less than one gram of a Penalty Group 1 controlled substance as a state jail felony); see also Tex. Penal Code Ann. § 12.425(a) (West Supp. 2015) (stating that a defendant shall be punished for a thir d-degree felony when the defendant is on trial for a state jail felony and has been previously convicted of two state jail felonies). Thus, we modify the judgme nt in trial court cause number 1386101D to show appellant’s conviction for a state jail felony. 17 See Tex. R. App. P. 43.2(b);

INTENTIONALLY OR KNOWIN GLY THREATEN IMMINENT BODILY INJURY TO M. PEARCE , A PUBLIC SERVANT, . . . AND THE DEFENDANT DID USE OR EXHIBIT A DEADLY WEAPON DURING THE COMMISSION OF THE ASSAULT, TO-WIT: A MOTOR VEHICLE, THAT IN TH E MANNER OF ITS USE OR INTENDED USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS BODILY INJURY[.]

17 His third-degree felony punishmentrange for the offense remains applicable.23 Ostrander v. State , No. 02-12-00159-CR, 2013 WL 3064547, at *4 (Tex. App.— Fort Worth June 20, 2013, no pet.) (m em. op., not designate d for publication) (modifying a judgment sua sponte to make a clerical correction). Conclusion Having overruled all of appellant’s points, we affirm the trial court’s judgments in its cause numbers 1383629D and 1383630D in all respects, modify the court’s judgment in caus e number 1386101D to refl ect appellant’s conviction for a state jail felony, and likewise a ffirm that judgment as modified.
/s/ Terrie Livingston TERRIE LIVINGSTON CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DAUPHINOT, J., concur s without opinion. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: March 3, 2016