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Burd v. State

The appellant, who was indicted for aggravated assault with a deadly weapon, appeals a judgment convicting him of deadly conduct. Because the charge did not apply self-defense to the lesser included offense of deadly conduct and did not otherwise inform the jury that self-defense applied to both offenses in the charge, there was error in the charge. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-11-00368-CR, 04-26-2013.

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OPINION

Appellant Donald Burd appeals a judgment convicting him of deadly conduct. See TEX. PEN. CODE ANN. § 22.05(b)(2) (West 2009). Burd was indicted for aggravated assault with a deadly weapon. The jury acquitted him of that charge but found him guilty of the lesser included offense of deadly conduct. Burd raises two issues on appeal; both relate to the trial court’s charge. First, he contends he was egregiously harmed by the trial court’s failure to include an instruction applying the law of self-defense to the lesser included offense of deadly conduct. He argues that the jury found in his favor on the self-defense issue, as demonstrated by its not-guilty finding on the aggravated assault charge, and that the jury would have acquitted him of both charges had it been instructed that self-defense also applied to the lesser included charge of deadly conduct. Second, he maintains he was egregiously harmed by the trial court’s failure to instruct the jury that the presumption of recklessness applicable to deadly conduct was permissive, not mandatory.

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