MEMORANDUM OPINION

No. 04-10-00870-CR

Josephus DUNCAN,

Appellant

v.

The STATE of Texas,

Appellee

From the 227th Judicial District Court, Bexar County, Texas

Trial Court No. 2009CR0316

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

Delivered and Filed: September 7, 2011

AFFIRMED

A jury convicted appellant, Josephus Duncan, of aggravated assault with a deadly 

weapon (repeater) and assessed punishment at confinement for twenty-five years. We affirm.

BACKGROUND

On July 21, 2008, appellant called the complainant, a woman with whom he had an onand-off romantic relationship, and asked her to drive to his grandmother’s house to visit him. 

When the complainant arrived, appellant got into her vehicle and the two began driving around 
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and arguing. During the argument, appellant pulled out a handgun and shot the complainant in 

the face. The bullet lodged in the complainant’s cheek. The complainant testified that after 

appellant shot her, he continued cursing at her and threatening to kill her. In an attempt to get 

away from appellant, the complainant purposely drove into a pole, which caused the vehicle to 

flip over. Both appellant and the complainant crawled out of the flipped vehicle, and the 

complainant ran to a nearby home and asked the home’s occupants to call the police. An 

ambulance arrived and took the complainant to the hospital. Appellant was arrested.

A grand jury indicted appellant for aggravated assault with a deadly weapon. At trial, 

appellant was the only witness to testify for the defense. Appellant testified, in part, as follows:

Q: [by defense counsel] At some point in time, was the gun fired?

A: [by appellant] Yes, sir.

Q: And did you intend to fire the gun?

A: No, sir.

Q: How did that happen then?

A: I don’t know. I just turned it and just shot her.

Q: Is there any reason for that?

A: I don’t know. I felt like—I don’t know. I felt like—I felt like I didn’t have no 

control over nothing that I did. I just did it.

Q: Did you display the gun recklessly?

A: No. No. I just pulled it out of the shirt.

...

Q. You’re charged by indictment with intentionally, knowingly and recklessly 

causing bodily injury to [the complainant]. Did you do that?

A. Not knowingly, I didn’t.
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Q. Did you intentionally do it?

A. No, sir.

Q. Did you recklessly do it?

A. I don’t know what that would be claimed. I don’t know what that would be 

called, recklessly.

Appellant repeated several times in his testimony that he did not intend to shoot the complainant. 

After resting its case, the defense requested an instruction on the lesser included offense 

of deadly conduct. The trial court denied the defense’s request and instructed the jury only on 

the charge of aggravated assault with a deadly weapon. 

DISCUSSION

In his sole issue on appeal, appellant argues the trial court erred in denying his request for 

an instruction on the lesser included offense of deadly conduct. 

We apply a two-pronged test to determine whether a defendant is entitled to an 

instruction on a lesser included offense. Campbell v. State, 149 S.W.3d 149, 152 (Tex. Crim. 

App. 2004); Blissit v. State, 185 S.W.3d 51, 53 (Tex. App.—San Antonio 2005, pet. ref’d). First, 

we must determine whether the lesser offense is included within the proof necessary to establish 

the charged offense. Campbell, 149 S.W.3d at 152; Blissit, 185 S.W.3d at 53. If it is, we must 

next determine whether some evidence exists in the record that would permit a rational jury to 

find the defendant guilty only of the lesser offense. Campbell, 149 S.W.3d at 152; Blissit, 185 

S.W.3d at 53. We do not consider whether the evidence is credible, controverted, or in conflict 

with any other evidence. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). The 

evidence can come from any source, and a defendant’s testimony alone may be sufficient. Bell 

v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). However, a defendant’s statement that he 

did not intend to commit the greater offense alone does not necessarily require an instruction on 
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the lesser offense. Guzman v. State, No. 04-03-00548-CR, 2004 WL 2168626, at *1 (Tex. 

App.—San Antonio 2004) (mem. op., not designated for publication), aff’d, 188 S.W.3d 185 

(Tex. Crim. App. 2006); Ramirez v. State, 976 S.W.2d 219, 227 (Tex. App.—El Paso 1998, pet. 

ref’d); Johnson v. State, 915 S.W.2d 653, 659 (Tex. App.—Houston [14th Dist.] 1996, writ 

ref’d). 

Here, the indictment charged appellant with aggravated assault with a deadly weapon:

“[Appellant] did use and exhibit a deadly weapon, NAMELY: A FIREARM, and [appellant] did 

intentionally, knowingly and recklessly CAUSE BODILY INJURY to [the complainant] by 

SHOOTING THE COMPLAINANT WITH SAID DEADLY WEAPON.” See TEX. PENAL 

CODE ANN. § 22.01 (West 2011) (defining “Assault”). Appellant requested an instruction on 

“Deadly Conduct,” which the Texas Penal Code defines as:

(a) A person commits an offense if he recklessly engages in conduct that places 

another in imminent danger of serious bodily injury.

(b) A person commits an offense if he knowingly discharges a firearm at or in the 

direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether the

habitation, building, or vehicle is occupied.

Id. § 22.05(a), (b). A person acts recklessly “with respect to circumstances surrounding his 

conduct of the result of his conduct when he is aware of but consciously disregards a substantial 

and unjustifiable risk that the circumstances exist or the result will occur.” Id. § 6.03(c).

We turn first to whether deadly conduct is a lesser included offense of aggravated assault 

with a deadly weapon. Here, the State does not dispute that deadly conduct is a lesser included 

offense in this case. Also, this court and others have previously held that deadly conduct 

typically is included within the proof necessary to establish aggravated assault with a deadly 
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weapon. E.g., Bell, 693 S.W.2d at 439 (holding “reckless conduct”—statutory predecessor of 

deadly conduct—may be a lesser included offense of aggravated assault with a deadly weapon); 

Blissit, 185 S.W.3d at 55 (holding deadly conduct may be a lesser included offense of aggravated 

assault). Therefore, as to the first prong of our review, we conclude deadly conduct is a lesser 

included offense of aggravated assault with a deadly weapon as charged in the indictment.

Next, we must determine whether there is any evidence in the record that would permit 

the jury to find appellant guilty only of deadly conduct. Appellant argues his testimony that he 

did not intend to shoot the complainant is sufficient to meet the second prong of our review 

because it negates the mens rea required to commit aggravated assault. However, appellant’s 

testimony that he did not intend to shoot the complainant “cannot be examined in a vacuum and 

alone does not necessarily require an instruction on deadly conduct as a lesser included offense.” 

Guzman, 2004 WL 2168626, at *1. To be “reckless,” appellant would have to be aware that his 

conduct created a substantial and unjustifiable risk, and he would have to consciously disregard 

that risk. TEX. PENAL CODE ANN. § 6.03(c). Because there is no evidence in the record that 

appellant was either aware of the risk or consciously disregarded it, there is no evidence to 

support a finding that discharge of the gun was a merely reckless act on appellant’s part. Also, 

appellant could not be guilty of deadly conduct under the second prong of the statutory definition 

by “knowingly discharg[ing] a firearm at or in the direction of” the complainant because 

appellant testified he did not knowingly shoot the complainant. See id. § 22.05(b). Therefore, 

there is no evidence in the record that would permit a rational jury to find appellant guilty only of 

deadly conduct. 
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CONCLUSION

We overrule appellant’s issue on appeal and affirm the trial court’s judgment. 

Sandee Bryan Marion, Justice

Do not publish