Texas Judiciary Online - HTML Opinionhttp://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=14356[12/11/2011 1:42:48 AM]
intentionally or knowingly caused serious bodily injury to L.G. as alleged and that appellant, "with the intent to promote or assist inthe commission of the aforesaid offense . . . did aid or assist in the commission of the offense by holding [L.G.'s] hand, wrists, orarms."
Tex. Pen. Code Ann. § 7.02(a)(2).Joshua Thompson requested an instruction on the lesser included offense of reckless injury to a child. Appellant was allowed to jointhis request and in his first point of error, appellant asserts that the trial court erred by refusing the instruction. But appellant'sargument on appeal does not comport with the trial request, that is, he does not argue that the court should have authorized hisconviction as a party to
reckless conduct. Instead, appellant argues that the evidence raises an issue as to whether
recklessly injured L.G. This argument ignores the fact that there is no evidence that appellant struck L.G., recklessly or otherwise, andthe court's charge did not authorize his conviction on a theory that he did so.Under the law of parties, a person cannot recklessly aid or assist another in the commission of an offense. Instead, the person mustact "with intent to promote or assist the commission of the offense."
. The court's charge properly required the jury to find thatappellant aided or assisted Joshua's criminal conduct with the intent to promote or assist the commission of the charged offense, andit would have been error to instruct the jury otherwise. Point of error one is overruled.
Count two of the indictment alleged that appellant "intentionally and knowingly cause[d] bodily injury to [L.G.], bystriking [him] with a stick, a branch and an object unknown . . . and . . . did then and there use and exhibit a deadlyweapon, to-wit: a stick, a branch and an object unknown."
Tex. Pen. Code Ann. § 22.02(a)(2). Pursuant to thelaw of parties, the court's charge authorized appellant's conviction if the jury found that Joshua Thompsonintentionally or knowingly caused bodily injury to L.G. as alleged, that Joshua used or exhibited a deadly weapon, andthat appellant, "with the intent to promote or assist in the commission of the aforesaid offense . . . did aid or assistin the commission of the offense by holding [L.G.'s] hand, wrists, or arms."
Tex. Pen. Code Ann. § 7.02(a)(2).In his second point of error, appellant contends that this instruction was fundamentally erroneous because it did notrequire a culpable mental state with respect to the weapon's use. Once again, appellant's argument does not takeinto account that he was convicted as a party. It is unclear whether the culpable mental state he contends shouldhave been required was his own or Joshua's.For the reasons stated previously, there was no error in the court's charge with regard to appellant's culpability as aparty to the aggravated assault. If appellant is arguing that the court should have required the jury to find thatJoshua Thompson employed the stick, branch, or other object with the intent to cause death or serious bodily injury,the argument is without merit. "[A]nything that in the manner of its use or intended use is capable of causing deathor serious bodily injury" is a deadly weapon. Tex. Pen. Code Ann. § 1.07(a)(17)(B) (West Supp. 2005). The statutedoes not require that the actor actually intend death or serious bodily injury.
McCain v. State
, 22 S.W.3d 497, 503 (Tex.Crim. App. 2000). It is sufficient that the actor uses or intends to use the object in a manner capable of causing deathor serious bodily injury.
and see Bailey v. State
, 38 S.W.3d 157, 159 (Tex. Crim. App. 2001). There was no error inthe charge. Point of error two is overruled.The judgments of conviction are affirmed. __________________________________________ W. Kenneth Law, Chief JusticeBefore Chief Justice Law, Justices Patterson and Puryeaer AffirmedFiled: December 8, 2005