Franklin v. State

¶1Concurring Opinion by

¶2The conclusion mandated by the Penal Code in the present case causes a curious result. However, it must be recognized that the Legislature cannot contemplate every possible fact situation. The majori*707ty opinion holds that if the evidence had shown that B.J. Franklin had knowingly fired the gun in the direction of the victim, he would have had a right to a charge of the lesser included offense of deadly conduct under Section 22.05 of the Penal Code.6 However, because the evidence did not show that he discharged the gun at or in the direction of the victim, he was not entitled to a lesser included offense, because the conduct of intentionally or knowingly threatening the victim with a gun was an aggravated assault under Section 22.02 of the Penal Code,7 which was a more serious offense than firing the gun at the victim.

¶3It is curious that firing a gun at the victim would be a less serious offense than the mere threatening of the victim with a gun.

¶4Because of the provisions in the Penal Code, I respectfully concur.