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 DEWAYNE BARRETT, Appellant
v.
THE STATE OF TEXAS
ON THE COURT’S OWN MOTION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
SMITH COUNTY
KEEL, J., delivered the opinion of the Court in which HERVEY, RICHARDSON,
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NEWELL, and MCCLURE, JJ., joined. YEARY, J., filed a concurring and dissenting
opinion. KELLER, P.J., filed a dissenting opinion in which WALKER and
SLAUGHTER, JJ., joined.
OPINION
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
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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.
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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
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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
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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.
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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.
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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
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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, 2020 WL 6153429, at *5 (Tex. Crim. App. Oct. 21, 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
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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, at *4 (citing Irving, 173 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. 173 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
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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
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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
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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.
Delivered: March 10, 2021
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