Ortiz, Orlando ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1061-19
ORLANDO ORTIZ, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
LA SALLE COUNTY
NO. PD-1362-18
DEWEY BARRETT, Appellant
v.
THE STATE OF TEXAS
ON THE COURT’S OWN MOTION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
SMITH COUNTY
YEARY, J., filed a concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION
ORTIZ & BARRETT ― 2
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. 13
ORTIZ & BARRETT ― 3
& 4–10, respectively. However, she would also “hold that ‘bodily injury’ includes all
physical injuries sustained in a single [assaultive] transaction.” Id. at 2. 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. 10–13. 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
ORTIZ & BARRETT ― 4
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
ORTIZ & BARRETT ― 5
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 4907822ORTIZ & BARRETT ― 6
(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, 1 nor does the evidence suggest
that any injuries sustained by punching were “less serious” than the injury alleged to have
been sustained by choking. 2 For this reason, I concur in the Court’s judgment affirming the
court of appeals in Barrett.
I respectfully concur in part (Barrett) and dissent in part (Ortiz).
FILED: March 10, 2021
PUBLISH
1
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[.]”).
2
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.