Public-domain · open source
OpenJurist

548 S.W.2d 50

Gallegos v. State

Court of Criminal Appeals of Texas

Decided March 16, 1977

Court of Criminal Appeals of Texas · decided 1977-03-16

Key passage — most relied on by later courts

“An offense is a lesser included offense if: (1)it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

quoted by 1 later decision, including Jay Jonathon Benjamin v. State of Texas

““V.T.C.A. Penal Code, Secs. 22.01 to 22.-04, provide that reckless acts that cause bodily injury constitute assault, but that reckless acts that fall short of injuring another are excluded. V.T.C.A. Penal Code, Sec. 22.05 (Reckless Conduct) applies to those acts that fall short of injuring another. Accordingly, reckless conduct is a lesser and included offense to assault under the Penal Code. This is exactly the reverse of [the defendant’s] contention.” (Emphasis deleted.)”

quoted by 1 later decision, including Bell v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1977-03-16

How this case has been cited

Cited by 8 later decisions — most recently August 2004

8 state decisions

501977198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

BROWN, Commissioner.

¶2 Appellant was convicted of the offense of reckless conduct by a jury in County Court at Law # 2 of El Paso County. The court assessed punishment at confinement in the county jail for 180 days, probated for six months.

¶3 Appellant’s sole ground of error is that the court erred in overruling his objection to the court’s charge because the court failed to charge on the offense of assault which appellant contends is a lesser included offense to reckless conduct under the 1974 Penal Code. Appellant is mistaken in this assumption.

¶4 Article 37.09, Vernon’s Ann.C.C.P., provides that an offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

¶5 V.T.C.A. Penal Code, Secs. 22.01 to 22.04, provide that reckless acts that cause bodily injury constitute assault, but that reckless acts that fall short of injuring another are excluded. V.T.C.A. Penal Code, Sec. 22.05 (Reckless Conduct) applies to those acts that fall short of injuring another (emphasis added). Accordingly, reckless conduct is *51 a lesser and included offense to assault under the Penal Code. This is exactly the reverse of appellant’s contention.

¶6 The judgment is affirmed.

¶7 Opinion approved by the Court.

/548/sw2d/50 · .json · Public domain