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Miller v. State

Deadly conduct is not a lesser-included offense of aggravated assault as charged (charging the appellant with committing the offense by "using or exhibiting" a deadly weapon) because the statutory elements of deadly conduct would not necessarily be established by proof of the same or less than all the facts required to establish the commission of the offense charged.

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Appellant Larry Floyd Miller, Jr., appeals from his conviction for aggravated assault by threat on a public servant (aggravated assault). He alleges that the jury should have been charged on lesser-included offenses of resisting arrest and misdemeanor deadly conduct (deadly conduct). We affirm.

BACKGROUND

On November 29, 2000, appellant and two other males were in a pickup truck driving around Electra, Texas. Electra policeman Cody Shaw attempted a traffic stop of the pickup because it had only one functioning headlight. The pickup did not stop for the officer, but rather, fled. *fn1 After a high-speed chase involving multiple law enforcement officers and vehicles with their flashing lights and sirens activated, the pickup containing appellant and his companions eventually came to a stop in a field in Wilbarger County. Appellant and his companions fled on foot to some hay bales in the field, where they were surrounded by officers. Appellant and one of his companions climbed onto a round bale of hay where appellant brandished a handgun. A standoff between the officers, appellant and his companions ensued. Greg Tyra, an investigator for the Wilbarger County District Attorney’s office approached appellant on the hay bale, identified himself as a representative of the district attorney’s staff, and tried to coax appellant into surrendering. Appellant had been putting his handgun in and out of his pocket, waving it in the direction of the officers, and stating that he was not going back to jail. Three of the officers, including Tyra, testified that as Tyra talked to appellant, appellant told Tyra that “I’ll blow your fucking head off.” Appellant did not testify or offer any affirmative evidence that he did not make the statements testified to by the officers, although he attempted to impeach their testimony by use of the officers’ incident reports.

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