Oscar Perkins v. State
12-15-00001-CR
| Tex. App. | Oct 5, 2016Background
- Oscar Perkins was indicted for third-degree felony assault-family violence by impeding breath or circulation; two prior felonies were alleged as enhancements.
- Perkins pleaded not guilty; jury found him guilty and the court found the enhancement paragraphs true, resulting in a life sentence.
- Victim Patsy Perkins (his wife) testified that on July 16, 2014 he hit her with a pillow and fist, then put her in a chokehold with his forearms, causing her to gag, have difficulty breathing, and fear she would die.
- Patrol Sergeant Flores observed visible markings, neck redness/indentations, and that the victim was upset and had trouble speaking; the victim was transported by ambulance.
- Dr. Weber examined the victim, documented forehead contusion, neck tenderness/contusion, cervical strain, and CT findings consistent with neck trauma; he opined that a forearm headlock could impede breathing.
- The jury credited the victim’s testimony; the court applied Jackson/Brooks sufficiency standards and denied Perkins’s directed-verdict motion; Perkins appealed, raising sufficiency and lesser-included-offense charge claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove impeding breathing (directed verdict) | State: Evidence (victim testimony, officer observations, medical exam) suffices to prove choking impeded breathing/circulation. | Perkins: Victim inconsistent/not credible; injuries could be from blows not choking; breathing not actually impeded; insufficent proof of impeding breath/circulation. | Court: Viewing evidence in light most favorable to prosecution, a rational jury could find elements beyond a reasonable doubt; sufficiency upheld. |
| Sufficiency (related credibility/medical evidence) | State: Medical and CT findings and physician opinion support choking as cause of injuries and impeded breathing. | Perkins: Medical findings don’t necessarily prove choking; lack of bruising undermines claim. | Court: Medical testimony that arm headlock can impede breathing, plus observable injuries, supported jury inference; credibility for jury to resolve. |
| Failure to instruct on lesser included offense (misdemeanor assault) | Perkins: Jury could have believed blows caused injuries but not choking; therefore misdemeanor assault instruction was a valid alternative. | State: Misdemeanor assault (by hitting) is not a lesser-included offense of assault-by-impeding-breathing because it is not established by proof of the same or less facts as the charged offense. | Court: Under art. 37.09 the misdemeanor assault does not qualify as a lesser-included offense of the charged offense; no instruction required. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (established standard for sufficiency review under due process)
- Brooks v. State, 323 S.W.3d 893 (Texas standard applying Jackson; jury credibility deference)
- Price v. State, 457 S.W.3d 437 (definition/elements of assault by impeding breath or circulation)
- Cavazos v. State, 382 S.W.3d 377 (two-step test for lesser-included-offense instruction)
- Bignall v. State, 887 S.W.2d 21 (requirement of affirmative evidence directly germane to lesser offense)
- Hooper v. State, 214 S.W.3d 9 (circumstantial evidence can be sufficient)