Is ''Reckless Conduct'' a Lesser Included Offense of ''assault'' ?
In Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985), the Court of Criminal Appeals held that "reckless conduct is a lesser included offense of assault because it is established by proof of the same facts required to establish the commission of aggravated assault by the use of a deadly weapon." Id. at 439.
In reaching this conclusion, the court relied on the rule stated in Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981):
Thus, in determining whether a charge on a lesser included offense is required a two step analysis is to be used.
First, the lesser included offense must be included within the proof necessary to establish the offense charged.
Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.
In Bell, the thrust of the State's evidence was that the appellant intentionally shot into the complainant's trailer with the intent to threaten the complainant with imminent bodily injury. See Bell, 693 S.W.2d at 443.
The focus of appellant's testimony however, was that he shot the gun but did not intend to shoot at the complainant's trailer or its occupants. Id.
The court found that after reviewing the conflicting evidence, either the jury could have reasonably concluded the appellant was aware but consciously disregarded the risk that the trailer was occupied or that he intentionally shot at the complainant's trailer. Id. at 444.