556 S.W.3d 916
Tex. App.2018Background
- Defendant Dwayne Hardeman was convicted by jury of assault family violence by occlusion (strangulation) against his stepdaughter L.A.; punishment enhanced by two prior felonies produced a life sentence.
- At incident time L.A. (17) alleged Hardeman grabbed her neck and choked her; she later recanted and testified at trial that he did not choke her and that her initial statements were lies influenced by being upset and by drug use.
- Several family witnesses and officers gave mixed accounts: some observed L.A. appearing fearful and clutching her neck; others (including L.A.’s mother and officers) testified there were no visible neck marks and that Hardeman may have only grabbed L.A.’s shirt/collar to prevent her running into traffic.
- Defense requested a jury charge on the lesser included offense of simple assault (assault without occlusion); trial court refused and gave only the charged offense and an accident/mistake defensive instruction.
- On appeal Hardeman argued the refusal to charge the lesser offense was error because there was affirmative evidence that breathing/bloodflow was not impeded; Court of Appeals agreed and reversed and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hardeman) | Held |
|---|---|---|---|
| Whether the trial court erred by refusing to instruct the jury on the lesser included offense of simple assault | Lesser charge not required because evidence (defensive theory of parental restraint) negated gross-recklessness; accident/mistake instruction sufficed | Evidence (victim recantation, lack of marks, testimony that defendant grabbed shirt/collar only) affirmatively supported simple assault as a valid alternative to occlusion | Reversed: court held simple assault was a valid lesser included offense and the record contained affirmative evidence supporting it; refusal to instruct caused some harm and warranted new trial |
Key Cases Cited
- Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App. 2016) (two-step test for lesser-included offense instructions)
- Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011) (anything more than a scintilla of evidence suffices for lesser-included charge)
- Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) (entire record must be considered; cannot evaluate evidence credibility)
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (second-step is a fact question considering all evidence)
- Marshall v. State, 479 S.W.3d 840 (Tex. Crim. App. 2016) (simple assault is included within assault by occlusion)
- Masterson v. State, 155 S.W.3d 167 (Tex. Crim. App. 2005) (harm from denying lesser offense instruction explained)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for reversible jury-charge error)