Chabrier asserts that the last element in offensive-contact assault—"the person knows or should reasonably believe that the other will regard the contact as offensive or provocative"—is functionally equivalent to the "without consent" element in the charged sexual-assault offense. The district court, in concluding that offensive-contact assault was not a lesser-included offense of sexual assault, relied on this Court's opinion in Mathis v. State , 443 S.W.3d 391 (Tex. App.—Austin 2014, no pet.). In Mathis , this Court considered whether two types of assault—bodily-injury assault and offensive-contact assault —were lesser-included offenses of sexual assault.
Furthermore, his omission is of import because authority holds that not every form of simple assault is a lesser-included offense of aggravated sexual assault. See, e.g., Mathis v. State, 443 S.W.3d 391, 396-98 (Tex. App.-Austin 2014, no pet.) (finding that bodily-injury assault is not a lesser-included offense of sexual assault because bodily injury is not an element of sexual assault and assault causing bodily injury requires proof of an additional element); Cisneros v. State, No. 05-12-01532-CR, 2014 Tex.App. LEXIS 6854, at *14-15 (Tex. App.-Dallas June 25, 2014, no pet.) (mem. op., not designated for publication) (finding bodily-injury assault is not a lesser-included offense of aggravated sexual assault because aggravated sexual assault does not require proof of bodily injury and evidence of penetration is not evidence of bodily injury); Denton v. State, No. 02-05-00044-CR, 2006 Tex.App. LEXIS 6662, at *13-14 (Tex. App.-Fort Worth July 27, 2006, pet. ref'd) (mem. op.) (concluding the same). So, we conclude that appellant's failure to provide us substantive analysis in the way described here relieves us from addressing the is
This is so because bodily injury is not an element of the offense of sexual assault. Mathias v. State, 443 S.W.3d 391, 397 (Tex. App.-Austin 2014, no pet.). Thus, upon viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of sexual assault beyond a reasonable doubt.
The trial court refused the request, based on court of appeals cases holding that assault is not a lesser-included offense for sexual assault. See Mathis v. State, 443 S.W.3d 391, 398 (Tex.App.--Austin 2014, no pet.); Crippen v. State, 368 S.W.3d 630, 632 (Tex.App.--Eastland 2012, pet. ref'd). But merely asking for a charge submission--here unsuccessfully--does not prove that counsel failed to provide effective assistance.
However, bodily injury is not an element of the offense of aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021(a)(1)(A); see alsoRodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim. App 1991); Mathis v. State, 443 S.W.3d 391, 396 (Tex. App.—Austin 2014, no pet.). Viewing the evidence in the light most favorable to the jury's verdict, the evidence is legally sufficient to support the jury's finding that Medrano committed the sexual acts described in counts one and two of the State's indictment without K.S.'s consent.