At trial, the court's jury charge authorized the jury to convict appellant for the offense of aggravated sexual assault, as charged in the indictment, or for one of the following offenses: sexual assault, aggravated assault by causing serious bodily injury, and assault by causing bodily injury. The record does not reflect that appellant requested that the jury be charged on aggravated assault by causing bodily injury. The jury found appellant guilty of aggravated assault by causing bodily injury and assessed punishment at five years' confinement. The facts of this case are set forth in detail in Trejo v. State, 242 S.W.3d 48, 49-50 (Tex.App.-Houston [14th Dist.] 2007), vacated, 280 S.W.3d 258 (Tex.Crim.App. 2009). On original submission, a panel of this court concluded that aggravated assault by causing bodily injury was not a lesser-included offense of the aggravated sexual assault charged in the indictment and that therefore the trial court lacked jurisdiction to convict appellant of aggravated assault in this case.
The Fourteenth Court of Appeals agreed; it held that the judgment of conviction was void and ordered the entry of a judgment of acquittal for the offense of aggravated sexual assault. Trejo v. State, 242 S.W.3d 48 (Tex.App.-Houston [14th Dist.] 2007). We granted review of two issues: whether "an appellant may appeal an error in the jury instructions when the appellant failed to make a record showing the source of the alleged error and where the appellant himself could have invited the error," and whether "the trial court lacked jurisdiction to instruct the jury on the offense of aggravated assault."
We should grant review to consider whether the court of appeals conducted a proper harm analysis. See Trejo v. State, 242 S.W.3d 48, 49-50 (Tex.App.-Houston [14th Dist.] 2007). For the reasons stated in my concurrence in Woodard, we should also grant review to determine whether appellant should be estopped from challenging the submission of the aggravated-assault offense.
And we believe that settled case law supports a decision that the "physical force and violence" allegation in McKithan's indictment is not functionally equivalent to an allegation of bodily-injury and that the State was not required to prove bodily injury to establish this "physical force and violence" allegation in McKithan's aggravated-sexual-assault indictment. See Wisdom v. State, 708 S.W.2d 840, 843 n. 3 (Tex.Cr.App. 1986) (the terms "force" and "violence" are "synonymous when used in relation to assault, and include any application of force even though it entails no pain or bodily injury and leaves no mark"); Brown v. State, 576 S.W.2d 820, 822-23 (Tex.Cr.App. 1978) (defendant compelling complainant to submit to sexual intercourse by holding a gun to her head sufficient to show force and threats); Trejo v. State, 242 S.W.3d 48, 50-52 (Tex.App.-Houston [14th Dist.] 2007) (aggravated assault not lesser-included offense of charged aggravated-sexual-assault offense because serious bodily injury was not a "fact required" to establish the "physical force and violence" and "threatening to use force and violence" allegations in the indictment), overruled on other grounds, Trejo v. State, 280 S.W.3d 258 (Tex.Cr.App. 2009); Edwards v. State, 97 S.W.3d 279, 291 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (explicit verbal threats and physical injury are not required to prove that a defendant compelled the victim's participation in a sexual assault by physical force and violence) (and cases cited); Gonzales v. State, 2 S.W.3d 411, 414-16 (Tex.App.-San Antonio 1999, no pet.) (defendant compelling the complainant to submit to sexual intercourse by laying on top of the complainant and preventing her from moving sufficient to show physical force and violence). The court of appeals, therefore, did not err to decide that the trial court properly refused McKithan's
Even if there was some evidence Farrar knew or reasonably believed Grace would regard his contact as offensive, that evidence is immaterial. See id.; cf. Chabrier v. State, 592 S.W.3d 188, 195 (Tex. App.—Austin 2019, no pet.) (because appellant could be guilty of penetrating the complainant's sexual organ without her consent even if there was no evidence of his knowledge or belief that complainant would regard contact as offensive or provocative, offensive-contact assault is not lesser-included offense of sexual assault); Trejo v. State, 242 S.W.3d 48, 50-52 (Tex. App.—Houston [14th Dist.] 2007) (aggravated assault is not lesser-included offense of charged aggravated-sexual-assault offense because serious bodily injury was not "fact required" to establish "physical force and violence" and "threatening to use force and violence" allegations in indictment), overruled on other grounds, Trejo v. State, 280 S.W.3d 258 (Tex. Crim. App. 2009). These two offenses contain distinct elements requiring different proof; thus, we conclude aggravated assault is not a lesser-included offense under article 37.09(1).
Aggravated assault requires proof that appellant "caused serious bodily injury," whereas the aggravated sexual assault charge does not require such proof. See Mack v. State, 05-09-01240-CR, 2011 WL 1170415, at *4 (Tex. App.—Dallas Mar. 31, 2011, pet. ref'd) (mem. op., not designated for publication) (holding aggravated assault was not a lesser-included offense of aggravated sexual assault and indictment contained similar "acts and words" language); Trejo v. Stare, 242 S.W.3d 48, 52 (Tex. App.—Houston [14th Dist.] 2007, pet. granted), vacated on other grounds, 280 S.W.3d 258 (Tex. Crim. App. 2009). Therefore, appellant's requested instruction does not satisfy the first prong of the Hall test.
stin Aug. 8, 2002, pet. ref'd), cert denied, 555 U.S. 999, 129 S.Ct. 494, 172 L.Ed.2d 365 (2008)(same); Moore v. State, 01-94-01225-CR, 1995 WL 623028, *2-4 (Tex.App.--Houston [1st Dist.] Oct. 19, 1995, pet. ref'd)(not designated for publication)(same, noting that the proper inquiry is to look only at the facts the State was required to prove to establish the statutory elements of the offense charged). The McKithan court provides a number of cites to support the proposition that "physical force or violence" is not synonymous with "bodily injury": Wisdom v. State, 708 S.W.2d 840, 843 n.3 (Tex.Crim.App. 1986)(the terms "force" and "violence" are "synonymous when used in relation to assault, and include any application of force even though it entails no pain or bodily injury and leaves no mark"); Brown v. State, 576 S.W.2d 820, 822-23 (Tex.Crim.App. 1978)(defendant compelling complainant to submit to sexual intercourse by holding a gun to her head sufficient to show force and threats); Trejo v. State, 242 S.W.3d 48, 50-52 (Tex.App.--Houston [14th Dist.] 2007)(aggravated assault not lesser-included offense of charged aggravated-sexual-assault offense because serious bodily injury was not a "fact required" to establish the "physical force and violence" and "threatening to use force and violence" allegations in the indictment), overruled on other grounds, Trejo v. State, 280 S.W.3d 258 (Tex.Crim.App. 2009); Edwards v. State, 97 S.W.3d 279, 291 (Tex.App.--Houston [14th Dist.] 2003, pet. ref'd)(explicit verbal threats and physical injury are not required to prove that a defendant compelled the victim's participation in a sexual assault by physical force and violence)(and cases cited); Gonzales v. State, 2 S.W.3d 411, 414-16 (Tex.App.--San Antonio 1999, no pet.)(defendant compelling the complainant to submit to sexual intercourse by laying on top of the complainant and preventing her from moving sufficient to show physical force and violence). --------
Id. See also Benavidez v. State, No. 13-07-00670-CR, 2010 WL 5256355 at *4 (Tex. App.-Corpus Christi Dec. 16, 2010, no pet.) (termed aggravated assault as a "lesser-but-not-included offense" of aggravated sexual assault); Trejo v. State, 242 S.W.3d 48, 52 (Tex. App.-Houston [14th Dist.] 2007, pet. granted), vacated on other grounds, 280 S.W.3d 258 (Tex. Crim. App. 2009) (aggravated assault is not a lesser-included offense of aggravated sexual assault as charged in the case). We overrule appellant's first issue.
On rehearing, following Trejo v. State, the State contends we must review appellant's conviction for harmless error by applying the factors described in Almanza v. State. In Trejo, a panel of this court reversed a conviction on an unindicted offense that was not a lesser-included offense of the crime charged. 242 S.W.3d 48, 52, 54 (Tex.App.-Houston [14th Dist.] 2007), vacated, 280 S.W.3d 258 (Tex.Crim.App. 2009). Holding the trial court lacked jurisdiction to convict an accused of an unindicted crime, this court did not review the charge error for harm.
Numerous courts have recognized that the proof required to show a threat of bodily harm or injury is different than the proof required to show serious bodily harm or injury. See, e.g., Schmidt v. State, 278 S.W.3d 353, 355-59 (Tex. Crim. App. 2009) (discussing the distinctions between threatening to cause bodily harm and actually causing bodily harm); Hall, 225 S.W.3d at 531 (noting that assault by bodily injury is not a lesser-included offense to aggravated assault by threat with a deadly weapon); Trejo v. State, 242 S.W.3d 48, 52 (Tex. App.-Houston [14th Dist.] 2007), rev'd on other grounds, 280 S.W.3d 258, 261 (Tex. Crim. App. 2009) (holding that aggravated assault is not a lesser-included offense of aggravated sexual assault because aggravated sexual assault does not require proof of serious bodily injury). Given the court of criminal appeals' ratification of these legal principles, the State concedes charge error, and we agree.