Texas Courts of Appeals
Baban v. State
No. 14-22-00273-CR 6/1/23
Issue:
Did the trial court err by instructing the jury on bodily-injury assault because it is not a lesser-included offense of assault by occlusion?
Holding:
Yes. Occlusion assault specifies impeding a victim’s breathing and is exclusive of proof of other bodily injuries; therefore, bodily-injury assault was not within the proof necessary to establish the charged offense and could not properly be submitted as a lesser-included offense of occlusion assault. Read opinion.
Commentary:
This decision is the predictable result of the holding by the Court of Criminal Appeals in Ortiz. As noted by page 5 of the court of appeals opinion in this case, the first two elements of both the greater and the lesser offense are virtually identical. Nevertheless, the Court of Criminal Appeals held in Ortiz that the offense of occlusion assault excludes all other possible lesser offenses (except for attempted occlusion assault). The record in this case did not reflect whether the defense requested the charge on the lesser offense of bodily-injury assault. Therefore, the court of appeals felt bound by the decision in Ortiz (which had already been applied in the McCall decision out of the Austin Court of Appeals). Unless §22.01 of the Penal Code is reconstrued or amended, in all occlusion-assault cases, trial judges should avoid charging the jury on the lesser offense of bodily-injury assault.
Castaneda v. State
No. 14-22-00206-CR 6/1/23
Issue:
Did the trial court err in a continuous sexual abuse of a child case by denying the defendant’s motion for mistrial after the mother testified that the defendant was physically abusive toward her while she was pregnant with the child victim?
Holding:
No. The court concludes that the prejudicial effect of the mother’s testimony was low because the challenged testimony was brief, non-specific, and not repeated by the State throughout the remainder of the trial. The trial court also sustained the defendant’s objection and promptly instructed the jury to disregard the State’s question and the mother’s answer. Read opinion.
Commentary:
Article 38.37 allows for the admissibility of so-called “relationship” evidence, but not relationship evidence concerning the victim’s mother. Perhaps the evidence could have been admissible under Rule 404(b). But this is not a decision about the merits. It is a decision solely about whether the defendant was entitled to a mistrial. As such, the court’s opinion is very straightforward. The evidence against the defendant was also very strong with the victim’s testimony and the mother’s outcry testimony, as well as testimony from two extraneous-offense victims. The defendant was clearly not harmed by the mother’s brief testimony about the defendant’s physical abuse of her.
Attorney General Opinion Request
RQ-0511-KP 6/6/23
Issue:
May a county commissioners court cede authority to the county judge to hire a county commissioner’s spouse for a position that reports directly to the county judge under nepotism provisions in Tex. Gov’t Code Chapter 573? Read opinion.
Requested by:
Eddie Arredondo, Burnet County Attorney