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Texas Court of Criminal Appeals Reverses Conviction for Improper Lesser-Included-Offense Determination

by Christopher Zoukis

The Court of Criminal Appeals of Texas reversed an intermediate court of appeals because the lower court improperly determined that “deadly conduct” is not a lesser-included offense of aggravated assault by threat. The top Texas criminal court found that the elements of both offenses are functionally equivalent and sent the case back to the trial court to determine whether there was enough evidence for a jury to have found the defendant guilty only of the lesser-included offense of deadly conduct.

In September 2014, Anthony Robert Safian nearly ran over a police officer as he was being stopped for suspicion of drug activity. After nearly taking the door off of Officer Pearce’s patrol car, Safian sped off. A high-speed chase ensued in which Safian drove into oncoming traffic and collided with another vehicle, which ended the pursuit.

Safian was charged with aggravated assault on a public servant (by the use or exhibition of a deadly weapon), evading arrest or detention while using a vehicle, and possession of less than a gram of heroin. At the close of evidence, Safian requested an instruction on deadly conduct as a lesser-included offense to the charged offense of aggravated assault on a public servant. The trial judge denied the request. Safian was found guilty on all counts, and the jury found the enhancement paragraphs true. He was sentenced to 18 years for both the evading arrest and aggravated assault charges and 10 years for heroin possession.

Safian appealed, arguing that deadly conduct is a lesser-included offense under these circumstances because the proof necessary to establish deadly conduct is within the proof necessary to establish aggravated assault by the use or exhibition of a deadly weapon. The State argued, and the intermediate court of appeals agreed, that deadly conduct could not be completed through exhibition of a deadly weapon, as aggravated assault could, so it could not be a lesser-included offense.

The Court of Criminal Appeals disagreed with this analysis and reversed. The Court compared the elements to determine whether they were functionally equivalent. According to the holding in Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985), they were.

Bell ruled that, as a matter of law, deadly conduct is a lesser-included offense of aggravated assault by the use of a deadly weapon. This was true even though deadly conduct requires engaging in conduct that places another in imminent danger of serious bodily injury, while aggravated assault by the use of a deadly weapon requires actual “use” of a weapon. In the Court’s analysis, “When the threat of imminent bodily injury is accomplished by the use of a deadly weapon, the victim has by definition been exposed to the deadly character of the weapon and, as a result, placed in imminent danger of serious bodily injury.”

That same analysis applies when ruling on the functional equivalency of an element that allows for only “exhibiting” a deadly weapon (aggravated assault of a public official) versus an element that requires “use” of a deadly weapon (deadly conduct). In the Court’s view, if the deadly weapon was exhibited, it was also used. In other words, if Safian drove the car near Officer Pearce, he exhibited it and used it. As such, the elements of both crimes were functionally equivalent, and Safian should have received the lesser-included offense instruction.

“[W]e observe that a defendant who has committed assault while exhibiting a motor vehicle in such a way that it can be characterized as a deadly weapon has also by definition used the motor vehicle to threaten imminent bodily injury,” wrote the Court. “Given that we have already held in Bell that such use of a deadly weapon to threaten imminent bodily injury encompasses the elements of deadly conduct, we conclude that the reasoning of Bell applies here.”

Accordingly, the Court reversed the lower appellate court and remanded the case to that court with instructions for it to conduct the second step of the lesser-included-offense analysis, which requires the determination “whether there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.” See: Safian v. State, 543 S.W.3d 216 (Tex. Crim. App. 2018). 

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