Opinion
NO. PD-1061-19 NO. PD-1362-18
03-10-2021
Orlando ORTIZ, Appellant v. The STATE of Texas Dewey Dewayne Barrett, Appellant v. The State of Texas
Nohl Bryant, Floresville, for Appellant. John R. Messinger, for State.
Nohl Bryant, Floresville, for Appellant.
John R. Messinger, for State.
OPINION
Keel, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, and McClure, JJ., joined.
The appellants in these consolidated cases were charged with occlusion assault under Texas Penal Code Section 22.01(b)(2)(B). At their respective trials, they each requested an instruction on bodily-injury assault as a lesser-included offense of occlusion. Their requests were denied, and they were convicted of occlusion assault.
On appeal their cases diverge: The court of appeals in Ortiz held that the trial court erred in refusing to instruct the jury on bodily-injury assault, but Barrett held that there was no error in refusing the instruction. Ortiz v. State , No. 04-18-00430-CR, 2019 WL 4280074, at *4 (Tex. App.—San Antonio Nov. 6, 2019) (mem. op. not designated for publication); Barrett v. State , No. 12-18-00023-CR, 2018 WL 4907822, at *3 (Tex. App.—Tyler Oct. 10, 2018) (mem. op. not designated for publication). We granted review to decide whether the appellants were entitled to an instruction on bodily-injury assault as a lesser included of occlusion. We also granted review in Barrett to consider whether Irving v. State , 176 S.W.3d 842 (Tex. Crim. App. 2005), should be overruled and whether multiple injuries from a single attack constitute separate prosecutable assaults.
We hold that bodily-injury assault is not a lesser-included offense of occlusion assault when the disputed element is the injury because the statutorily specified injury of impeding normal breathing or blood circulation is exclusive of other bodily injuries. Consequently, we reverse the judgment of the court of appeals in Ortiz and affirm the judgment of the court of appeals in Barrett . We further hold that overruling Irving would make no difference in Barrett's case because Irving is inapplicable here. And because we can resolve Barrett without addressing whether multiple injuries inflicted in a single attack may be separately prosecuted, we do not reach that ground for review.
I. Lesser-Included Offenses
Article 37.09 defines lesser-included offenses in four different ways. Tex. Code Crim. Proc. art. 37.09. The latter three definitions are not at issue in these cases. Article 37.09(2) defines a lesser-included offense as one which differs from the charged offense only in the respect that it requires a less serious injury or risk of injury. Tex. Code Crim. Proc. art. 37.09(2). It is inapplicable here because, even assuming that bodily injury assault requires a less serious injury or risk of injury than occlusion assault, it also differs from occlusion assault in that it does not require a particular relationship between the defendant and the complainant. Compare Tex. Penal Code § 22.01(a)(1) with § 22.01(b)(2)(B). Article 37.09(3), defining a lesser-included offense as one that differs from the charged offense by requiring a less culpable mental state, is inapplicable because bodily-injury assault requires the same culpable mental states as occlusion assault. Tex. Code Crim. Proc. art. 37.09(3). And Article 37.09(4), defining an attempt as a lesser-included offense, Tex. Code Crim. Proc. art. 37.09(4), was not implicated in either of these cases. That leaves us with Article 37.09(1) : A defendant is entitled to an instruction on a lesser-included offense if it is "established by proof of the same or less than all the facts required to prove the offense charged[.]" Tex. Code Crim. Proc. art. 37.09(1). We use a two-step test to determine if an instruction on a lesser-included offense should be given. Hall v. State , 225 S.W.3d 524, 526 (Tex. Crim. App. 2007).
The first step "compare[s] the statutory elements of the alleged lesser offense and the statutory elements and any descriptive averments in the indictment." Ritcherson v. State , 568 S.W.3d 667, 670–71 (Tex. Crim. App. 2018) ; Hall , 225 S.W.3d at 526. The second step asks whether "there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense." Bullock v. State , 509 S.W.3d 921, 925 (Tex. Crim. App. 2016).
In these cases, the Hall test does not answer the Article 37.09(1) question of what facts are "required" to prove the offense charged. But we answer that question in other contexts by identifying the allowable unit of prosecution. See, e.g. , Johnson v. State , 364 S.W.3d 292, 295–97 (Tex. Crim. App. 2012) (applying unit analysis in a variance case and noting unit analysis in unanimity and double-jeopardy cases). The State Prosecuting Attorney (SPA) urges us to adopt that analysis in the lesser-included offense context, too.
The application of the "allowable unit of prosecution" analysis to the lesser-included-offense context would be consistent with our jurisprudence in other areas, and it would answer the question that in these cases the Hall test does not, namely, what facts are "required" to prove the offense charged. Consequently, we apply the "allowable unit of prosecution" analysis here and conclude that the allowable unit of prosecution for occlusion assault is impeding normal breathing or circulation of the blood. An injury other than impeding is established by different or additional facts than those required to establish impeding, so bodily injury assault that results in a non-impeding injury is not an included offense of occlusion assault.
II. Allowable Unit of Prosecution and Assault
The allowable-unit-of-prosecution analysis identifies the focus of an offense and classifies the offense as a result-of-, nature-of-, or circumstances-surrounding-conduct offense. Huffman v. State , 267 S.W.3d 902, 907 (2008) (superseded by statute on other grounds). An offense may have more than one focus, and if so, one may predominate or both may be equally important. Id. "Absent an express statement [by the statute] defining the allowable unit of prosecution, the gravamen of an offense best describes the allowable unit of prosecution." Loving v. State , 401 S.W.3d 642, 647 (Tex. Crim. App. 2013).
Section 22.01 broadly defines bodily-injury assault as any injury caused in any way with a requisite culpable mental state. Tex. Penal Code § 22.01(a)(1). Bodily injury is broadly defined, too; it means "physical pain, illness, or any impairment of physical condition." § 1.07(a)(8). Bodily-injury assault is a misdemeanor "except" when it is a felony. Tex. Penal Code § 22.01(a), (b). As pertinent here, it is a felony if the person injured has a relationship to the defendant under certain sections of the Family Code, and "the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." Tex. Penal Code § 22.01(b)(2)(B). This is "occlusion assault."
The statute defining occlusion assault expressly incorporates bodily-injury assault into the definition, so the appellants argue that misdemeanor bodily-injury assault is included in occlusion assault. But what the statute gives, it also takes away: bodily-injury assault is a Class A misdemeanor "except" it is a third-degree felony if the complainant has a relevant relationship to the defendant, and the defendant impedes the victim's normal breathing or blood circulation. Tex. Penal Code § 22.01(b)(2)(B). Impeding normal breathing or blood circulation describes occlusion assault's required injury. Price v. State , 457 S.W.3d 437, 442–43 (Tex. Crim. App. 2015). Because statutory language describes the required injury as impeding, the State is bound to prove impeding. See Johnson , 364 S.W.3d at 298 (explaining that the failure to prove a statutory definition of an offense would render the evidence legally insufficient to prove that offense).
Impeding is "a form of bodily injury." Marshall v. State , 479 S.W.3d 840, 844 (Tex. Crim. App. 2016). But other injuries are not impeding. Since the statute specifies impeding, it excludes other injuries. Impeding is exclusive of other injuries in the same way that a square is exclusive of other rectangles: A square is a rectangle, but other rectangles are not squares; specifying "square" excludes non-square rectangles; and specifying "impeding" excludes non-impeding injuries.
For example, if a defendant were charged with occlusion assault, and the evidence showed that he stomped on the complainant's foot and caused pain, that assault would not be included in the charged offense because a non-impeding injury is not required to prove occlusion assault. The non-impeding injury is a different injury than impeding. Even a non-impeding injury inflicted on the neck, throat, mouth, or nose would not be proven by the same or less than the facts needed to prove occlusion assault. If pinching the neck caused pain but did not impede normal breathing or blood circulation, the assault would not be included because the assault by pinching would require an additional fact proving a different injury than impeding.
As the SPA points out, occlusion assault is distinct from other felony bodily-injury assaults because they do not specify a particular injury; their focus is causing any bodily injury. For example, aggravated assault is a bodily-injury assault plus aggravating elements of serious bodily injury or use of a deadly weapon. Tex. Penal Code § 22.02(a). Without the aggravating elements, there is still a bodily-injury assault. Similarly, assault on a public servant requires proof of a bodily-injury assault plus the additional elements of a public servant in the lawful discharge of an official duty. Hall , 158 S.W.3d at 473 ; Tex. Penal Code § 22.01(b)(1). Without the additional elements, there is still a bodily-injury assault. Repeat domestic violence is the same—an assault plus a relationship and a prior conviction. Tex. Penal Code 22.01(b)(2)(A). Without the relationship or prior conviction, there is still an assault.
But occlusion assault without impeding would lack a gravamen. Its statutorily specified injury is unavoidable. The failure to prove it would be like failing to prove bodily injury in other felony bodily injury assaults: there would be no offense. If impeding is not proven, then the evidence is legally insufficient to prove occlusion assault, and proving a different injury proves a different assault but not an included one because the statute requires impeding.
But Barrett and Ortiz argue that Price dictates that non-occlusion assault is a lesser included of occlusion assault. We disagree.
Price was convicted of occlusion assault. Price , 457 S.W.3d at 439. He claimed jury-charge error for failure to tie the culpable mental state to both the result and the nature of the conduct alleged. Id. We granted review to decide whether occlusion assault is both result oriented and conduct oriented. Id.
Price argued that, besides bodily injury, "choking or strangling a victim is also a gravamen of the offense because he could not be charged with the indicted offense without it." Id. at 442. In addressing that argument, the Court explained that occlusion assault consists of three parts: (1) intentionally, knowingly, or recklessly causing bodily injury; (2) a relevant relationship between the complainant and the defendant; and (3) commission of the assault by "intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." Id. at 442. Price said, "The first part is result oriented; there must be an injury." Id. The second part is a circumstance: a certain relationship defined by statute. Id. As for the third part, Price said that although it set out a second set of requisite mental states, it "is not the gravamen of the offense[.]" Id.
But the opinion also pointed out that the "second set of mental states" modifies " ‘impeding the normal breathing or circulation of the blood of the person,’ which describes the required injury: normal breathing or circulation of the blood has been impeded." Id. at 442–43. Thus, according to Price , impeding is the required injury. And although Price , citing Landrian v. State , broadly defined the gravamen as "bodily injury," id. at 443, Landrian stated that what matters is the result specified by the statute. Landrian v. State , 268 S.W.3d 532, 537 (Tex. Crim. App. 2008).
Since impeding is the result specified by the statute, the gravamen of occlusion assault is not just any bodily injury but is exclusively impeding. In short, impeding is the focus of occlusion assault and defines its allowable unit of prosecution. See Philmon v. State , No. PD-0645-19, 609 S.W.3d 532, 540 (Tex. Crim. App. 2020) ("family-violence assault by impeding breathing or circulation focuses on impeding the breathing or circulation of someone with whom the perpetrator is in a dating relationship.").
This does not foreclose all lesser-included-offense instructions for occlusion assault. For example, if the relationship is at issue, then an instruction on misdemeanor assault may be warranted. See, e.g. , Rodriguez v. State , 553 S.W.3d 733, 752 (Tex. App.—Amarillo 2018, no pet.) (defendant was not entitled to the instruction because no evidence offered to show lack of a relevant relationship). Or if the evidence raises an attempted occlusion assault, an instruction on that lesser may be warranted. See Tex. Penal Code § 15.01(a) ; Tex. Code Crim. Proc. art. 37.09(4). But the evidence in these cases did not raise an issue about the relationship between the parties or the possibility of an attempted occlusion assault. Rather, Barrett and Ortiz sought instructions for the lesser offense of bodily-injury assault for non-impeding injuries. But non-impeding injuries are not included in occlusion assault because they are not proven by the same or less facts than required to prove occlusion assault; they are proven by different, additional facts. Consequently, neither Barrett nor Ortiz was entitled to the instruction sought.
III. Irving
The Barrett court of appeals cited Irving , an aggravated assault case, for the proposition that "[a] trial court is not required to instruct a jury on a lesser included offense where the conduct establishing the lesser offense is not ‘included’ within the conduct charged." Barrett , No. 12-18-00023-CR, 2018 WL 4907822, at *4 (citing Irving , 176 S.W.3d at 846 ). Barrett argues that Irving should be overruled.
In Irving , the defendant was accused of aggravated assault for causing serious bodily injury by striking the complainant with a bat or for causing bodily injury by striking the complainant with a bat that was a deadly weapon. 176 S.W.3d at 845 n.9. He sought a bodily-injury-assault instruction based on his testimony that he did not hit her with a bat but fell on her without causing her serious bodily injury. Id. at 843. We held that there was no error in denying the instruction because "the conduct constituting the lesser-included offense for which Appellant requested an instruction is different from the conduct which was alleged in the charging instrument for Appellant's aggravated-assault charge." Id. at 845. We explained that the requested lesser was based on Irving having grabbed the victim and fallen on her, "and not hitting the victim with a baseball bat." Id. at 845-46.
In hindsight, Irving ’s analysis is faulty because the manner and means of committing an aggravated assault is not the unit of prosecution. Hernandez v. State , 556 S.W.3d 308, 327 (Tex. Crim. App. 2017). And a variance between an alleged, non-statutory manner and means of committing an aggravated assault and the proven manner and means is not material. Johnson , 364 S.W.3d at 298. So, a difference between the non-statutory manner and means alleged in an aggravated assault indictment, on the one hand, and the manner and means of a proposed lesser, on the other, should not foreclose an instruction on a proposed lesser-included offense.
Irving also conflicts with our later opinion in Hall . Comparing the elements of assault—intentionally, knowingly, or recklessly causing bodily injury to another—with the elements of the aggravated assault as charged against Irving—intentionally, knowingly, or recklessly causing bodily injury or serious bodily injury to the complainant by striking her with a deadly weapon or a bat—shows that assault was included in the charged aggravated assault as a matter of law, and Irving's testimony showed that if he was guilty, he was only guilty of the lesser-included offense of assault. See Bullock , 509 S.W.3d at 925 ; Hall , 225 S.W.3d at 536. Under the Hall test, assault was a lesser-included offense of the aggravated assault charge Irving faced.
But overruling Irving would not help Barrett because of the differences between occlusion assault and aggravated assault. Occlusion assault has a statutorily specified injury, the injury is the focus of the offense, and proving a different bodily injury proves a different assault rather than an included one. Aggravated assault, however, does not have a statutorily specified injury. Tex. Penal Code § 22.02. So, Irving ’s treatment of assault as a possible lesser-included offense of aggravated assault is inapplicable to assault as a possible lesser-included offense of occlusion assault. Since it would make no difference to the outcome of Barrett's case, we need not overrule Irving .
IV. SPA's Arguments Barred or Estopped?
Ortiz maintains that we should not entertain the SPA's arguments because the State did not advance them in the court of appeals. But an appellee's failure to make an argument in the court of appeals does not prevent us from considering it. Volosen v. State , 227 S.W.3d 77, 80 (Tex. Crim. App. 2007) ; Rhodes v. State , 240 S.W.3d 882, 886 n.9 (Tex. Crim. App. 2007). Ortiz's reliance on Rochelle v. State , 791 S.W.2d 121 (Tex. Crim. App. 1990), and Sotelo v. State , 913 S.W.2d 507 (Tex. Crim. App. 1995), is misplaced because the grounds for review in those cases did not address the holdings by the courts of appeals See Rhodes , 240 S.W.3d at 886 n.9 (distinguishing Rochelle and Sotelo for that reason). In Ortiz's case, the State defended the trial court's ruling, and the SPA's ground of review challenges the court of appeals’ holding. Consequently, its arguments here are not barred for not having been raised in the court of appeals.
V. Conclusion
Occlusion assault's focus on a narrowly defined injury forecloses an instruction on an assault that results in a different injury. We reverse the judgment of the court of appeals in Ortiz and remand for consideration of Ortiz's remaining issue. We affirm the judgment of the court of appeals in Barrett .
Yeary, J., filed a concurring and dissenting opinion.
Keller, P.J., filed a dissenting opinion in which Walker and Slaughter, JJ., joined.
CONCURRING AND DISSENTING OPINION
Yeary, J., filed a concurring and dissenting opinion.
As I understand it, the Court today holds categorically that simple assault can never be deemed a lesser-included offense of the aggravated version of that same offense enumerated in Section 22.01(b)(2)(B) of the Penal Code. TEX. PENAL CODE §§ 22.01(a)(1), 22.01(b)(2)(B). Simple assault is committed when an actor "intentionally, knowingly, or recklessly causes bodily injury to another[.]" TEX. PENAL CODE § 22.01(a)(1). The offense becomes aggravated when: (1) it is committed against a person with whom the actor has a particular familial relationship and (2) it is accomplished "by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth"—what the Court today calls "occlusion assault." TEX. PENAL CODE § 22.01(b)(2)(B) (emphasis added). I simply cannot agree that, as a matter of law, simple assault may never be a lesser-included offense of "occlusion assault."
The way I see it, the Court's opinion misses the kitten for the cat. One cannot become a cat without first being a kitten. And one cannot commit "occlusion assault" without first causing the bodily injury necessary to sustain a conviction for a simple assault. Stated another way, simple assault is an indispensable predicate to making out a case for "occlusion assault." And there is, therefore, no doubt that simple assault can be a lesser included offense of "occlusion assault."
Presiding Judge Keller also disagrees with the Court. Like her—for many if not all of the reasons she explains in Part B of her dissent—I believe that "[t]he structure of the statute reveals occlusion to be an aggravating element that does not impact the unit of prosecution." Dissent of Presiding Judge Keller (hereinafter, "Dissent") at Part B, pp. 819 & 814–18, respectively. However, she would also "hold that ‘bodily injury’ includes all physical injuries sustained in a single [assaultive] transaction." Id. at 813. In my view, her approach would require a wholesale reconsideration of the Court's prior jurisprudence surrounding the nature of the offense known as assault. I am unprepared to go that far because I do not share her view that the relevant unit of prosecution for a simple assault offense is the overall assaultive "transaction" during which any resulting bodily injury occurs. Dissent at Part C, pp. 818–19. Instead, I would be more inclined to say that "bodily injury" includes any physical injury sustained as the result of a particular, discrete assaultive act, such as a punch or a kick—what I regard as the appropriate unit of prosecution for assault.
With that understanding, I still do not agree that simple assault cannot be a lesser included offense of "occlusion assault." The occlusion element of the aggravated offense in Section 22.01(b)(2)(B) is a nature-of-conduct type of element, requiring that the result-of-conduct element of simple assault—bodily injury—be caused in a particular way. See Marshall v. State , 479 S.W.3d 840, 846–47 (Tex. Crim. App. 2016) (Yeary, J., concurring and dissenting) ("This compound adverbial phrase, describing the particular way in which the third degree felony offense is committed, sets out a particular manner and means by which the actor must be found to have caused bodily injury before he may be convicted. It seems to me to describe a nature-of-conduct type of element which is necessary to the greater offense; but it remains nothing more than a particular manner and means by which the bodily injury must be caused. It need not always constitute bodily injury itself , however, before it may serve to justify a conviction for felony family assault."). Take away evidence that the bodily injury was accomplished in that particular way—that is, by occlusion—and you may still have the lesser-included offense of simple assault: simple bodily injury caused in any other way than impeding breath or blood (it does not matter in what other way in a result-of-conduct type of offense like simple assault under Section 22.01(a)(1) ).
Section 22.01(b)(2)(B) requires a jury finding that the defendant "caused bodily injury to" a family member, and that he did so in a particular way: "by ... impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." TEX. PENAL CODE § 22.01(b)(2)(B) (emphasis added). A defendant who applies pressure to the throat or neck but fails thereby to impede the circulation of blood, or who blocks the nose or mouth but fails thereby to impede normal breathing, may still have caused his family member pain or some other form of physical impairment like a contusion. If that is what the evidence shows, the defendant may be found not guilty of "occlusion assault," but a jury could still rationally convict him of the lesser-included offense of simple assault (since his family member still constitutes "another" for purposes of Section 22.01(a)(1) ).
A lesser-included simple assault instruction might be called for if, for example, there was evidence in a given case to show that the defendant's assaultive act entailed the application of some degree of pressure to his family member's neck or throat, and that pressure was not enough to actually impede the normal breathing or circulation of the blood, but it was nevertheless enough to cause a minimum of "physical pain ... or any impairment of physical condition." TEX. PENAL CODE § 1.07(8). Under this hypothetical scenario, simple assault would constitute a classic lesser-included offense under Article 37.09(1) of the Code of Criminal Procedure. It would be "established by proof of the same or less than all the facts required to establish the commission of the offense charged"—that is, proof of bodily injury by exerting a degree of pressure upon the throat or neck, but not enough to actually impede normal breath or circulation of the blood. TEX. CODE CRIM. PROC. art. 37.09(1).
Moreover, depending on the facts, a strong argument might also be made that it would satisfy the definition of the lesser-included offense described by Article 37.09(2) of the Code of Criminal Procedure in that it would "differ[ ] from the offense charged only in the respect that a less serious injury ... to the same person ... [would] suffice[ ] to establish its commission[.]"). See TEX. CODE CRIM. PROC. art. 37.09(2). The Court is mistaken wholly to foreclose that contingency.
By this understanding, the court of appeals in Ortiz was correct to conclude that the lesser-included instruction for simple assault was warranted. Ortiz v. State , No. 04-18-00430-CR, 2019 WL 4280074 (Tex. App.—San Antonio Sep. 11, 2019) (mem. op., not designated for publication). There, the appellant was charged with choking his former girlfriend. He "admitted he restrained [her] with both of his hands around her neck[,]" but he "denied squeezing [her] neck or attempting to choke her." Id. at *2. The girlfriend, however, had bruising on her neck. Id. at *3. From this evidence a jury might rationally have found that the appellant's discrete assaultive act of placing his hands around the victim's neck caused her some bodily injury without ever having impeded her breath or blood circulation, making him guilty only of the lesser-included offense of simple assault. Hall v. State , 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). For that reason, I dissent to the reversal of the court of appeals’ judgment in Ortiz .
On the other hand, I agree with the Court that the court of appeals’ judgment in Barrett should be affirmed. Barrett v. State , No. 12-18-00023-CR, 2018 WL 4907822 (Tex. App.—Tyler Oct. 10, 2018) (mem. op., not designated for publication). Also charged with occlusion assault, the appellant in Barrett denied he ever choked his wife, but he admitted to having punched her in the face several times, and he argued that the jury might have found him guilty only of that simple assault. Id. at *1–2. But punching his wife in the face several times constituted a different assault (several different assaults, in fact) than choking her, in my view, and evidence of these discrete assaults did not constitute lesser-included offenses of the assault alleged in the indictment, nor does the evidence suggest that any injuries sustained by punching were "less serious" than the injury alleged to have been sustained by choking. For this reason, I concur in the Court's judgment affirming the court of appeals in Barrett .
Tex. Code Crim. Proc. art. 37.09(1) ("An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]").
Tex. Code Crim. Proc. art. 37.09(2) ("An offense is a lesser included offense if: ... (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission[.]"). As I have previously explained, while an "occlusion assault" is undoubtedly a felony and simple assault is only a misdemeanor, I understand the aggravating factors which establish an "occlusion assault" to affect only the "particular manner and means by which the actor must be found to have caused bodily injury[,]" not the injury itself. See Marshall , 479 S.W.3d at 846–47 (Yeary, J., concurring and dissenting). An injury that is sufficient to sustain a conviction for felony "occlusion assault," therefore, need not necessarily be any more "serious" than the bodily injury that would sustain a conviction for simple assault.
I respectfully concur in part ( Barrett ) and dissent in part ( Ortiz ).
Keller, P.J., filed a dissenting opinion in which Walker and Slaughter, JJ., joined.
The assault statute sets forth a number of alternative elements that elevate bodily-injury assault from a Class A misdemeanor to a third-degree felony. One of those involves what the Court calls the "occlusion" element. The question in the "occlusion" assault cases before us is whether a person can obtain a lesser-included offense instruction if he produces some evidence that a bodily-injury assault occurred without "occlusion." The Court says there is no such lesser-included offense because the unit of prosecution for bodily-injury assault is the injury and occlusion is a different injury than an injury in a bodily-injury assault without occlusion.
Id. § 22.01(b)(2)(B).
I disagree. "Bodily injury" describes the unit of prosecution for a bodily-injury assault, but not in quite the same way as the Court conceives it. I would hold that "bodily injury" includes all physical injuries sustained in a single transaction. Regardless, the "occlusion" element is structured within the assault statute as a classic aggravating element that does not prescribe the unit of prosecution for the base offense. So while occlusion can factually be part of the bodily injury a victim might sustain, occlusion itself does not describe the unit of prosecution. This means that, if the defendant can produce evidence that occlusion did not occur but that the victim suffered some other physical injury or injuries that would make him guilty only of a "plain" bodily-injury assault, then the defendant would be entitled to the lesser-included offense of "plain" bodily-injury assault, a Class A misdemeanor.
If the defendant's evidence showed only that the defendant inflicted what would be recognized as "serious bodily injury" or that he used a deadly weapon in inflicting injuries, then it could be argued that such evidence would not show him to be guilty only of "plain" bodily-injury assault because it would show him guilty of the greater offense of aggravated assault, a second-degree felony. See Tex. Penal Code § 22.02(a) ("serious bodily injury" and "deadly weapon" listed as aggravating elements to the base offense of assault), (b) (second-degree felony); Forest v. State , 989 S.W.2d 365, 368 (Tex. Crim. App. 1999) (Defendant not entitled to submission of lesser-included offense of aggravated assault in murder case charged under Penal Code § 19.02(b)(1) because his evidence would show, at best, guilt of murder under § 19.02(b)(2), and thus "there was no evidence that [he] was guilty only of anything less than some form of murder."). I assume without deciding that such an argument would be correct.
A. The Assault Statute
The base offense of bodily-injury assault is set out in the assault statute as follows:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; ...
Under the version of the Penal Code that applies to the defendants’ offenses, there are five separate, enumerated elements that each elevate bodily-injury assault from a Class A misdemeanor to a third-degree felony:
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code ; or
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth;
(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person:
(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or
(B) in retaliation for or on account of the person's or employee's performance of a service within the scope of the contract;
(4) a person the actor knows is a security officer while the officer is performing a duty as a security officer; or
(5) a person the actor knows is emergency services personnel while the person is providing emergency services.
Tex. Penal Code § 22.01(b)(1)-(5) (2015). The current version of the Penal Code contains two additional separately enumerated elements. Tex. Penal Code § 22.01(b)(6)-(7).
All five of these elements are in a series ultimately separated by an "or," so any one of these elements can elevate bodily-injury assault to a third-degree felony. Elements (2) and (3) also contain enumerated sub-elements separated by an "or," and elements (1) through (3) contain disjunctive sub-elements that are not enumerated. I will refer to element (2) as the "family-relationship element." What the Court describes as "occlusion" is sub-element (B) under the family-relationship element: "the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth."
See Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 138 S. Ct. 1134, 1141, 200 L.Ed.2d 433 (2018) (in a statute, "or" is almost always disjunctive); Chambers v. State , 580 S.W.3d 149, 159 (Tex. Crim. App. 2019) (same).
B. Alternative Aggravating Factors, Not Units of Prosecution
1. The family-relationship element (of which occlusion is a part) is parallel to other elements in the assault statute that do not prescribe a unit of prosecution.
Before I discuss why I think the term "bodily injury" consists of all injuries within a single transaction, it is useful to discuss the implications of these alternative elevating elements and sub-elements and of the structure of the statute in which the occlusion sub-element appears. All five of the overarching elements involve a particular type of victim, respectively: (1) a public servant, (2) a person with a family relationship with the attacker (with "occlusion" being an enumerated alternative sub-element), (3) a government contractor in a correctional or detention facility, (4) a security officer, and (5) a person who is emergency services personnel.
See Tex. Penal Code § 1.07(a)(14) ; Tex. Fam. Code § 51.02(13), (14).
Setting aside for the moment the family-relationship element, the remaining four elements do not involve any sort of injury. Rather, they identify the victim by status and then say that the victim was either in the course of performing duties relating to that status, or the defendant's assault on the victim was in retaliation for or on account of the victim performing those duties. By the Court's own reasoning, because they do not involve injury, these four overarching elements do not prescribe the unit of prosecution for the offense of third-degree felony assault. That conclusion is also consistent with caselaw.
See Hernandez v. State , 556 S.W.3d 308, 327 (Tex. Crim. App. 2018) (op. on reh'g) (For unit-of-prosecution purposes, the gravamina of aggravated assault [of which assault is the base offense] "are the victim and the bodily injury that was inflicted.").
That conclusion is important because of the parallel position in the assault statute that the family-relationship element has with the other four elements. The assault statute lists these five overarching elements as parallel clauses in a series. Parallel clauses in a series must have the same functional effect within a statute. Accordingly, either all five of these elements prescribe units of prosecution resulting in separate offenses, or none of them do. Since the other four elements clearly do not prescribe units of prosecution resulting in separate offenses, it follows that the family-relationship element does not either.
O'Connor v. Oakhurst Dairy , 851 F.3d 69, 74 (1st Cir. 2017) (Quoting The Chicago Manual of Style § 5.212 (16th ed. 2010): "Every element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective, adverb)."); Moronta v. Nationstar Mortgage , LLC, 476 Mass. 1013, 1015, 64 N.E.3d 1287, 1290 (2016) (citing The Chicago Manual of Style , supra ).
2. The family-relationship element could be charged in the alternative with these other elements that do not prescribe a unit of prosecution.
Moreover, looking again at just the other four overarching elements, it appears that they are alternative elements of committing the same offense. In a given case, a victim could be both a public servant and a security officer. Or a victim could be a public servant and emergency services personnel. Conceivably the victim could be a government contractor at a correctional facility and a security officer or a government contractor at a correctional facility and emergency services personnel. If a victim acted in one of those sets of dual capacities, those would constitute alternative aggravating elements for the offense of assault, not separate units of prosecution. And while one probably cannot act as both a public servant and a government contractor, there might be situations in which there is uncertainty as to which the victim is, and the State could charge these in the alternative.
If the other four overarching elements can be charged in the alternative, the natural inference would be that the same is true of the family-relationship element, as a parallel part of a series with these other elements. It is conceivable, though perhaps an unlikely scenario, that a victim could have a family relationship with the defendant and also be acting in a capacity described by one of the other four elements, such as being a public servant or emergency services personnel. If so, the State could charge this additional capacity as an alternative element to the family-relationship element. And regardless of whether such a scenario is likely, the statute is structured to allow the family-relationship element to be charged as an alternative element.
See id.
Ordinarily, a jury would not even need to be unanimous about the proof of such alternative elements. And this sort of jury unanimity issue is "closely intertwined" with our double-jeopardy jurisprudence. Most of the time, a unit-of-prosecution issue that impacts both juror unanimity and double-jeopardy involves "determining whether alternative statutory elements mark separate offenses or simply represent alternative means of committing the same offense." And when the conclusion is that the alternative statutory elements simply represent alternative means of committing the same offense, those elements rarely have any effect on the unit of prosecution. This is true even if the element would, in isolation, have prescribed a unit of prosecution. Capital murder provides a ready example: The unit of prosecution is the murder of the predicate victim, and the elements that elevate a murder to capital murder are simply alternative methods of committing the same capital murder. This is true even though elevating elements can be felony offenses (e.g. burglary and retaliation) that would be legally separate from each other or felony offenses that would be factually separate because they involve different victims.
Gardner v. State , 306 S.W.3d 274, 302 (Tex. Crim. App. 2009) (jury need not be unanimous about which of two underlying offenses that elevate murder to capital murder were committed).
Huffman v. State , 267 S.W.3d 902, 905 (Tex. Crim. App. 2008).
Johnson v. State , 364 S.W.3d 292, 296 (Tex. Crim. App. 2012).
Gamboa v. State , 296 S.W.3d 574, 583-84 (Tex. Crim. App. 2009). A unit of prosecution issue can arise in a capital murder prosecution that involves multiple murders if the State does not clearly identify who predicate-murder victim is or if the State tries to use a victim more than once in its charges. See infra at n.17 and surrounding paragraph.
Gardner , 306 S.W.3d at 301-02.
Davis v. State , 313 S.W.3d 317, 342 (Tex. Crim. App. 2010).
The multiple-murder version of capital murder presents a limited exception to this principle: The State cannot use the same murder victim to charge multiple capital murder offenses by manipulating who the predicate murder victim is, and unanimity problems can occur if the State does not make clear who the predicate murder victim is. The potential ability to manipulate how victims are characterized and the number of victims alleged make the multiple-murder situation unusual and unlike the family-relationship element at issue here. In any event, this limited exception operates only to restrict the State's ability to prosecute multiple offenses. It does not confer on the State the ability to prosecute more capital murder offenses than could be prosecuted under the other aggravating factors for capital murder.
See Saenz v. State , 451 S.W.3d 388, 390-92 (Tex. Crim. App. 2014).
3. The family-relationship element is focused on status, not injury.
Further, the family relationship element is itself structured as a status element. The subsection prescribing this element has a common part (subsection (2) proper) and then two subdivisions ((A) and (B) under subsection (2)). The common part provides that the person has a family-relationship with the victim under one of several specified Family Code provisions. The two subdivisions are alternative sub-elements. One specifies the defendant having a prior family-violence conviction while the other specifies the defendant committing occlusion against the victim.
That the two subdivisions have nothing in common other than being related to the common part of subsection (2) is some indication that this common part provides the focus of the family-relationship element. And the common part of subsection 2 is all about the victim's status: the victim has a family relationship with the defendant. The fact that the other four overarching elements are about the victim's status reinforces the conclusion that the family-relationship element is a status element as well. The focus of the family-relationship element being on status, rather than injury, suggests that the family relationship element is not an "injury" element that prescribes the unit of prosecution.
See also Cooper v. State, 430 S.W.3d 426, 431 (Tex. Crim. App. 2014) (Keller, P.J., concurring) (discussing similar structure in capital-murder and failure-to-stop-and-render-aid statutes as tending to show focus of those statutes on the common element and contrasting statutes in which a common element tying subdivisions together was absent or perfunctory).
4. The occlusion sub-element in the family-relationship element is parallel to, and could be charged in the alternative with, a sub-element that does not prescribe the unit of prosecution .
As explained earlier, the family-relationship element has two sub-elements: the occlusion sub-element and the prior-conviction sub-element. Under the Court's reasoning (and consistent with caselaw), the prior-conviction sub-element would not prescribe a unit of prosecution for bodily-injury assault because it is not an "injury" element. In any event, it is hard to conceive how a prior-conviction element could ever prescribe a unit of prosecution. The occlusion sub-element is parallel to the prior-conviction sub-element within the assault statute. This parallel structure would suggest that the two sub-elements should be treated the same for unit of prosecution purposes. It would also suggest that the occlusion and prior-conviction sub-elements could be charged together in the same prosecution as alternative aggravating elements.
See supra at n.8.
If, instead, the legislature had wanted the occlusion sub-element to prescribe the unit of prosecution for an "occlusion assault" offense, it could have crafted a separate "occlusion assault" offense rather than drafting the occlusion and prior-conviction sub-elements as statutory alternatives. In Ex parte Benson , we dealt with the inverse scenario, where the Legislature did craft a separate assault offense—intoxication assault—and we held that if the legislature had wanted the offenses of felony DWI and intoxication assault to be the same offense, it "could easily have crafted ‘serious bodily injury’ and ‘prior convictions’ as statutory alternatives but did not." But crafting injury and prior convictions as statutory alternatives is exactly what the legislature did here. In fact, saying that the legislature "has enacted statutes in which the existence of prior convictions is an alternative enhancing element of an offense alongside other alternative enhancing elements that do not involve prior convictions," Benson cited, as one of its examples, the family-relationship provision before us.
See Ex parte Benson , 459 S.W.3d 67, 89 (Tex. Crim. App. 2015).
Id. at 78 & n.62. Benson cited to the 2013 version of the statute, which had only four overarching elements instead of five. Id. at 78 n.62. The statute was cited as a "cf" cite, perhaps because the prior-conviction element was an alternative element within another alternative element, while other statutory citations dealt with an element being alternative on only one level. See id.
C. "Bodily Injury" Includes All Physical Injuries in Same Transaction
As set out earlier, the base offense of assault provides that a person "causes bodily injury to another." In Johnson v. State , we explained that separate crimes of aggravated assault "could be based on separately inflicted instances of bodily injury." However, we did not address whether "bodily injury," as statutorily incorporated in aggravated assault, "consists of each discrete harm suffered by the victim or consists of all damage suffered by the victim in a single transaction." This open question applies with equal force to the assault statute because the statutory term "bodily injury" was incorporated into the offense of aggravated assault by virtue of its incorporation of the base offense of assault. I would now hold that "bodily injury" is transactional.
Johnson , 364 S.W.3d at 298.
Id. at 298 n.45.
See Tex. Penal Code § 22.02(a) ("A person commits an offense if the person commits assault as defined in § 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.").
The statute does not say "a" bodily injury. Had it done so, we could be confident that each discrete physical injury suffered would be a separate unit of prosecution. And saying "caused a bodily injury" flows naturally and is not at all awkward. The legislature could have easily phrased the statute that way if it intended each discrete injury to be a separate crime. Consistent with the phrasing in the assault statute, the aggravated assault statute phrases the "serious bodily injury" aggravating factor as "causes serious bodily injury to another." Again, the legislature omitted the indefinite article.
See Jones v. State , 323 S.W.3d 885, 891-92 (Tex. Crim. App. 2010) ("The presence of ‘a’ before the term ‘materially false or misleading statement’ in § 32.32 is at least some indication that each ‘materially false or misleading statement’ constitutes a separate unit of prosecution.").
See supra at n.24.
"Serious bodily injury" is not part of the gravamen of aggravated assault, but is one of two alternative aggravating factors. Rodriguez v. State , 538 S.W.3d 623, 629 (Tex. Crim. App. 2018). This is consistent with my analysis in the previous section of this opinion.
Because the indefinite article is omitted, another construction of "bodily injury" is possible, as suggested in Johnson : "all damage suffered by the victim in a single transaction." This is a reasonable reading of a statement that says, "The victim has suffered bodily injury." Such a statement does not mean the victim has suffered only one discrete physical injury; rather it is agnostic on what particular physical injuries have been suffered, just that what is suffered amounts to bodily injury. This construction also provides a contrast in degree to "serious bodily injury," which if caused by the defendant, raises the offense from assault to aggravated assault (use of a deadly weapon can also raise the offense to aggravated assault).
See supra at n.24.
In addition, a transactional construction of bodily injury produces results in harmony with the obvious conclusion to be drawn from the prior section of this opinion—that occlusion is an aggravating element that does not affect the unit of prosecution. If "bodily injury" consists of all damage inflicted in a single transaction, then occlusion would simply be part of that transactional damage.
I think the statutory language lends itself to the transactional construction, perhaps enough to make it unambiguous. But if ambiguity is perceived, we can look at the consequences of a particular construction. A transactional construction avoids the potential for hairsplitting situations in which it may be unclear whether a victim has been hurt multiple times or in multiple ways or just once. And it accounts for the idea that cumulative strikes might combine to cause bodily injury—or serious bodily injury for other offenses, even if no single strike inflicts harm. It also ensures some proportionality between the punishment the defendant could receive and the degree of harm imposed. Conceivably, a defendant could hit a victim with his fists 100 times in a single transaction and yet inflict very little harm. Under the notion that each discrete injury is an assault, the State could choose to prosecute the defendant 100 times and seek 100 years of cumulative sentences. This approach also avoids possible difficulties with election of offenses and double jeopardy claims.
Williams v. State , 603 S.W.3d 439, 445 (Tex. Crim. App. 2020) (Extratextual factors for reviewing an ambiguous statute include the "consequences of a particular construction.").
See Tex. Penal Code § 3.03 ; Tex. Code Crim. Proc. art. 42.08(a).
D. Conclusion
I disagree with the Court's holding that occlusion is a separate unit of prosecution from other injuries that might be inflicted in an assault. The structure of the statute reveals occlusion to be an aggravating element that does not impact the unit of prosecution. I would also hold that "bodily injury" encompasses all damage inflicted in a single transaction rather than simply being a discrete physical injury. Consequently, I would hold that plain assault can in fact be a lesser-included offense of occlusion assault.
I respectfully dissent.