Texas Court of Criminal Appeals
Ortiz v. State and Barrett v. State
Nos. PD-1061-19 and PD-1362-18 3/10/21
Issue:
Is bodily-injury assault a lesser-included offense of assault by occlusion?
Holding:
No. In these consolidated cases, the Court concludes 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.” Read opinion.
Concurrence and dissent (Yeary, J.):
“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.’” Read opinion.
Dissent (Keller, P.J., Walker and Slaughter, J.J. joining):
“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.” Read opinion.
Commentary:
Domestic violence prosecutors will need to read this case. Many of us probably assumed that simple assault was a lesser-included offense of assault of a family member by strangulation. A divided court rejected that view. This could have unintended repercussions—plea bargains to the lesser-offense may now require the case to be refiled as a misdemeanor to be valid. Read this case carefully if you are nearing disposition of a strangulation case.
Texas Courts of Appeals
Joe v. State
No. 10-18-00221-CR 3/3/21
Issue:
Can mattresses and box springs be considered cargo under the theft of cargo statute, Penal Code §31.18(c)(2)?
Conclusion:
Yes. Transfer of possession from the goods from a store to a carrier in a shipping yard “demonstrates that the goods were moving in commerce and were ‘cargo’ within the meaning of” §31.18(a)(1). The defendant’s actions in attempting to hook a trailer carrying the goods to his own truck amount to possession. Read opinion.
Dissent (Gray, C.J.):
“This is a classic case of attempting to steal the cargo. But failing to ever take possession of the cargo, an attempt, is the only thing of which Joe is guilty. I would hold that the evidence is insufficient for a rational jury to have held that Joe got to the stage of possessing the cargo. He attempted but failed. It is still a crime, just not the one for which he has been found guilty.” Read dissent.
Busby v. State
No. 10-18-00262-CR
Issue:
Is the State required to present sufficient evidence to again prove a prior conviction when the prior conviction is used to enhance a subsequently charged offense?
Holding:
No. The defendant was charged with assault family violence, enhanced by a prior family violence offense. At trial, the victim of both assaults testified that she was the true aggressor in the prior assault used to enhance the charged offense, and that when the defendant hit her in response to her aggression, she was not hurt. The Court concluded, however, that this testimony was not a valid collateral attack on the prior conviction. A collateral attack based on a void judgment must show a complete lack of evidence to support the conviction, not merely insufficient evidence. The defendant’s guilty plea to the first assault constitutes some evidence to support the prior judgment. Read opinion.
Concurrence (Gray, C.J.):
“If we allow, or even suggest, what Busby argues is required of the State, that is, to present sufficient evidence to support a prior conviction, the cycle of having to prove prior offenses will never end. Until the prior conviction is set aside by a proper means, it is final for purposes of use as an enhancement, and it is certainly not necessary for a jury, or the trial court, to have to reconsider the evidence to support the prior conviction.” Read concurrence.
Texas Attorney General’s Office
KP-0361 3/5/21
Issue:
Does Texas Constitution Article III, §53 prohibit a one-time bonus for the administrative staff of the county’s justices of the peace?
Conclusion:
To the extent one-time bonuses constitute extra compensation for certain work performed by justice court clerks, Article III, §53 prohibits the payment of the bonuses retroactively. A prospective bonus approved prior to rendering services would not violate Article III, §53. Read opinion.
KP-0360 3/5/21
Issue:
Does Gov’t Code Chapter 573, regarding nepotism, apply to the candidacy for sheriff of the brother of the current county judge?
Conclusion:
Neither the nepotism statute in Chapter 573 of the Government Code nor the conflict-of-interest statute in Chapter 171 of the Local Government Code prohibit the county judge’s brother from running for sheriff in the described circumstances. Read opinion.
KP-0362 3/5/21
Issue:
May the State restrict clergy visitation in hospitals and other medical facilities during the COVID-19 pandemic only to people facing imminent death?
Conclusion:
If an individual desires to see a member of the clergy as part of his or her religious exercise, prohibiting access to that member except when death is imminent places a substantial burden on the individual’s religious exercise. Stemming the spread of COVID-19 is unquestionably a compelling government interest. However, to the extent that other less restrictive safety protocols further the government’s interest in stemming the spread of COVID-19, a court would likely conclude that prohibiting an individual’s access to clergy only when facing death violates the state and federal constitutions and the Texas Religious Freedom Restoration Act because it is not the least restrictive means of achieving such compelling interest. Read opinion.