McKithan v. State
2010 Tex. Crim. App. LEXIS 1392
| Tex. Crim. App. | 2010Background
- Welsh was convicted of bodily-injury assault by kicking his wife; the indictment alleged injury by kicking and the trial court denied an instruction on offensive-contact assault.
- McKithan was charged with aggravated sexual assault by forcing submission with physical force and violence; indictment's first paragraph alleged penetration by finger and fear of imminent serious bodily injury.
- The Court applies the Hall cognate-pleadings approach to determine first-step lesser-included offenses, considering whether the lesser offense is functionally equivalent to elements of the greater offense as alleged.
- Authorities discuss the relevant doctrine: Article 37.09(1), Hall, Ex parte Watson, and the functional-equivalence concept guiding whether facts alleged in the indictment can deduce the lesser offense.
- Court holds that offensive-contact assault is not a lesser-included offense of bodily-injury assault or aggravated sexual assault, and bodily-injury assault is not a lesser-included offense of aggravated sexual assault as charged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is bodily-injury or offensive-contact assault a lesser-included offense of the charged offenses in McKithan? | McKithan contends bodily-injury or offensive-contact may be deduced from 'physical force and violence'. | Welsh argues the State must prove the specific lesser offenses due to functional equivalence. | No; neither bodily-injury nor offensive-contact is a lesser offense of aggravated sexual assault as charged. |
| Is offensive-contact assault a lesser-included offense of the charged bodily-injury assault in Welsh? | Welsh asserts the bodily-injury by kicking implies the element of offensive contact. | Welsh argues the offense is not functionally equivalent to offensive-contact in the indictment. | No; the State was not required to prove offensive contact to establish bodily injury by kicking. |
Key Cases Cited
- Hall v. State, 225 S.W.3d 524 (Tex.Cr.App. 2007) (establishes cognate-pleadings approach for step-one of lesser-included-offense analysis)
- Ex parte Watson, 306 S.W.3d 259 (Tex.Cr.App. 2009) (reaffirms Hall framework and 'facts required' in step-one analysis)
- Salazar v. State, 284 S.W.3d 874 (Tex.Cr.App. 2009) (habitation notice considered functionally equivalent for lesser offenses)
- Farrakhan v. State, 247 S.W.3d 720 (Tex.Cr.App. 2008) (affirms functional-equivalence concept within Hall framework)
- Schmidt v. State, 278 S.W.3d 353 (Tex.Cr.App. 2009) (discusses boundaries between bodily injury and force-based allegations)