Ortiz v. State

• Decision Date: 10 March 2021
• Docket Number: NO. PD-1362-18,NO. PD-1061-19,PD-1061-19
• Citation: 623 S.W.3d 804
• Parties: Orlando ORTIZ, Appellant v. The STATE of Texas Dewey Dewayne Barrett, Appellant v. The State of Texas
• Court: Texas Court of Criminal Appeals

623 S.W.3d 804

Orlando ORTIZ, Appellant

v.The STATE of Texas

Dewey Dewayne Barrett, Appellant

v.The State of Texas

NO. PD-1061-19

NO. PD-1362-18

Court of Criminal Appeals of Texas.

Delivered: March 10, 2021

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...