623 S.W.3d 804
Tex. Crim. App.2021Background
- Two consolidated Texas cases (Ortiz and Barrett) involved convictions for occlusion assault under Tex. Penal Code § 22.01(b)(2)(B).
- Both appellants requested jury instructions on bodily-injury assault as a lesser-included offense; trial courts denied the requests and defendants were convicted.
- The courts of appeals split: the San Antonio court (Ortiz) found error in refusing the instruction; the Tyler court (Barrett) found no error.
- The Court of Criminal Appeals granted review to decide whether bodily-injury assault is a lesser-included offense of occlusion assault, whether Irving v. State should be overruled, and whether multiple injuries from a single attack can be separately prosecuted.
- The Court held that occlusion assault focuses on a statutorily specified injury—impeding normal breathing or blood circulation—so non-impeding bodily injuries are not lesser-included offenses of occlusion; it reversed Ortiz and affirmed Barrett.
- The Court declined to overrule Irving because Irving was inapplicable to Barrett, and it did not decide whether multiple injuries in a single attack may be separately prosecuted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether bodily-injury assault is a lesser-included offense of occlusion assault when the disputed element is the injury | Appellants: misdemeanor bodily-injury assault is included because occlusion incorporates bodily-injury assault | State: occlusion specifies the injury (impeding breathing/circulation), which is exclusive; a different injury is a different offense | No. Bodily-injury assault for non-impeding injuries is not a lesser-included offense of occlusion assault |
| Whether Irving v. State should be overruled / applies here | Barrett: Irving is flawed and should be overruled | State: Irving is not controlling here; overruling unnecessary | Irving is inapplicable to occlusion assault; Court did not overrule it because it would not affect Barrett |
| Whether multiple injuries from a single attack can be separately prosecuted | Barrett sought review on whether separate injuries constitute separate assaults | State did not prevail on that argument here | Not reached/decided by the Court |
| Whether the State Prosecuting Attorney’s (SPA) new arguments are barred because they were not raised in the court of appeals | Ortiz: SPA’s arguments were forfeited/waived | State: Appellate briefing rules do not bar consideration in this Court | SPA’s arguments are not barred; the Court may consider them |
Key Cases Cited
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (two-step lesser-included-offense test comparing elements and then evidence)
- Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App. 2016) (some-evidence requirement for lesser-included instruction)
- Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) (unit-of-prosecution analysis applied to charging/variance issues)
- Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015) (occlusion assault parsed into bodily injury, relationship, and impeding; impeding describes the required injury)
- Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005) (addressed lesser-included instruction in aggravated assault context)
- Marshall v. State, 479 S.W.3d 840 (Tex. Crim. App. 2016) (recognizing impeding breathing/circulation as a form of bodily injury)