Is Assault Causing Bodily Injury a Lesser-Included Offense of Assault With a Deadly Weapon?
(Aggravated Assault) The indictments in all seven of these cases alleged that Whytus caused bodily injury to a named victim by the reckless use of a deadly weapon, namely, an automobile, that in the manner of its use and its intended use was capable of causing death and serious bodily injury. We addressed this type of combination of offenses in Jones v. State, 241 S.W.3d 666, 671 (Tex. App.–Texarkana 2007, no pet.), and concluded that under a similar charge, simple assault (requiring only recklessness as a mens rea) is a lesser-included offense of aggravated assault (made aggravated by the use of a deadly weapon). (2) Thus, bodily injury assault in the manner alleged, but without the deadly weapon, is a lesser-included offense of the alleged aggravated bodily injury assault. Further, the evidence at trial shows that the way in which the item (the automobile) was used meets the definition of a deadly weapon. It was clearly an item that “in the manner of its use” is capable of causing d
