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Click here for the full text of this decision FACTS:Jose Jesus Guzman put a loaded semi-automatic gun to his ex-girlfriend’s head and pulled the trigger. The gun fired. She was seriously injured. He was indicted for attempted murder. At trial, appellant, who was 16 at the time of the shooting, testified that he had removed the “clip” from the gun, so he thought that it was not loaded. It was. Although the trial judge instructed the jury on the lesser-included offense of aggravated assault, he refused appellant’s requested instruction on the lesser-included offense of deadly conduct. The jury convicted appellant of attempted murder and assessed the maximum sentence. On appeal, appellant argued that the trial court erred by failing to instruct the jury on deadly conduct. The court of appeals disagreed: “We do not find support in the record for a rational jury to conclude Guzman was only guilty of deadly conduct.” HOLDING:Affirmed. Deadly conduct is a lesser-included offense of both attempted murder as alleged in the indictment and aggravated assault as contained in the jury charge. To be entitled to the deadly conduct charge, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of deadly conduct, not attempted murder and not the intervening lesser-included offense of aggravated assault which was also contained in the jury charge. The appellant relied upon a statutory presumption that may be used in lieu of direct evidence to prove the element of recklessness in the deadly conduct statute. The appellant argues that, if an actor believes a firearm to be unloaded, a jury would be entitled to acquit a defendant on a charge of aggravated assault but convict on a charge of deadly conduct. A statutory presumption may play no part in determining whether a defendant is entitled to a lesser-included offense instruction, the court states. “While the statute setting out the elements of aggravated assault does not include a special subsection describing the presumption that recklessness may be inferred from the act of pointing a gun at a person’s head, it would defy logic � and the canons of statutory construction � to assume that the legislature intended such a statutory presumption to apply to the lesser, but not the greater, offense when both require exactly the same”reckless’ mental state.” Appellant’s own testimony showed that he was consciously aware of the risk of harm his conduct posed to the victim. It does not matter that appellant may have also believed that the gun was unloaded; he was fully aware of the fact that pointing a gun at someone’s head and pulling the trigger is a very dangerous act. It logically follows, then, that there is no evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of deadly conduct and not aggravated assault. OPINION:Cochran, J., delivered the opinion of the Court, in which Meyers, Price, Johnson, Keasler, Hervey, and Holcomb, JJ., joined. Keller, P.J., filed a concurring opinion. Womack, J., dissented. CONCURRENCE:Keller, PJ. “I would hold that, when a defendant is charged with committing an act that causes bodily injury � e.g., aggravated assault � the second prong of the lesser included offense test is never met when the evidence that the victim was injured is undisputed. Because that is the case here, I agree that appellant was not entitled to the instruction. I therefore concur in the Court’s judgment.”

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