Bell v. State (1985)

In Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985), the Court was confronted with the same issue, namely, whether the State established reckless conduct under article 22.05(a) "by proof of the same or less than all of the facts required to establish the offense charged, aggravated assault by the use of a deadly weapon." Id. at 438. The Court recognized that proof of intent or knowledge--higher culpable mental states--necessarily established the lower culpable mental state of recklessness. Id. The Court then turned to the question of "whether proof of threatening another with imminent bodily injury by using a deadly weapon as appellant's indictment charged constitutes proof that the actor engaged in conduct that placed another in imminent danger of serious bodily injury." Id. The Court concluded that "proof of threatening another with imminent bodily injury by the use of a deadly weapon as appellant's indictment charged constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury that is, misdemeanor deadly conduct." Id. at 438-39. In Bell v. State, the indictment charged Bell with the following: . . . did then and there knowingly and intentionally use a deadly weapon, to wit: a firearm, and did then and there threaten George Smith with imminent bodily injury by the use of said deadly weapon. The State asserted that reckless conduct under section 22.05(a) of the Texas Penal Code was not a lesser-included offense of the offense charged because "proof of danger of serious bodily injury is not established by the same or less facts than proof of a threat of imminent bodily injury." Id. at 437 The court first noted that in order to establish the commission of the offense charged, the State was required to prove: (1) a person; (2) intentionally or knowingly; (3) threatened another with imminent bodily injury; (4) by knowingly and intentionally using a deadly weapon. Id. at 438. The court then set forth the statutory elements of reckless conduct as including: (1) a person; (2) recklessly; (3) engages in conduct; (4) that places another in imminent danger of serious bodily injury. Id. Applying the first prong of the test, the court noted that when the State established the higher culpable mental state of intent or knowledge, it necessarily established the lower culpable mental state of recklessness. Id. The court asserted that the precise issue "thus becomes whether proof of threatening another with imminent bodily injury by using a deadly weapon constitutes proof that the actor engaged in conduct that placed another in imminent danger of serious bodily injury." Id. The court held: "Patently, threatening another with imminent bodily injury is engaging in conduct. When that threat is accomplished by the use of a deadly weapon, by definition the victim is "exposed" to the deadly character of the weapon and the inherent risk of serious bodily injury. The danger of serious bodily injury is necessarily established when a deadly weapon is used in the commission of an offense. It follows, therefore, that proof of threatening another with imminent bodily injury by the use of a deadly weapon constitutes proof of engaging in conduct that places another in imminent danger of serious bodily injury." Id. at 438-39.