"The court of appeals erred when it affirmed the trial court's denial of the lesser-included jury charge of deadly conduct in the trial for aggravated assault on a public servant."
Safian was charged with aggravated assault on a public servant after he nearly ran over a police officer who was approaching his car to investigate a traffic offense. The indictment alleged that Safian threatened a public servant with imminent bodily injury and used or exhibited a deadly weapon during the commission of the offense. The trial court denied his request for submission of deadly conduct – recklessly engaging in conduct that placed another in imminent danger of serious bodily injury – as a lesser included offense.
The court of appeals acknowledged that using a deadly weapon to threaten bodily injury would place another in imminent danger of serious bodily injury. It noted that Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985), held that the danger of serious bodily injury was necessarily included in an indictment alleging that the victim was threatened with imminent bodily injury by the use of a deadly weapon. But here, because the indictment alleged that Safian used or exhibited a deadly weapon, and merely exhibiting a deadly weapon does not necessarily place another in imminent danger, deadly conduct was not a lesser-included offense of aggravated assault as alleged in this case.
Safian contends that because his indictment alleged use of a deadly weapon, Bell is controlling. He points out that the Court of Criminal Appeals has never distinguished Bell when an indictment alleged use and exhibition of a weapon. Similarly, in Amaro v. State, 287 S.W.3d 825, 829 (Tex. App. – Waco 2009, pet. ref'd), the Waco court refused to hold that the danger of serious bodily injury could only be established by use of, but not by exhibition of, a deadly weapon.