Lead Opinion
OPINION
delivered the opinion of the Court
In these consolidated cases, we address whether, under the cognate-pleadings approach of the step-one lesser-included-offense analysis set out in our decision in Hall v. State,
An indictment charged Welsh with committing bodily-injury assault by “kicking” the complainant (Welsh’s wife) with his foot.
Welsh claimed on direct appeal that he was entitled to a jury instruction on offensive-contact assault as a lesser-included offense of the charged offense of bodily-injury assault. The court of appeals decided that offensive-contact assault is not a lesser-included offense of the charged bodily-injury-assault offense because, to establish that Welsh caused bodily injury to the complainant “by kicking her with his foot, the State was not required to prove that Welsh knew or reasonably should have believed that [the complainant] would regard the contact as offensive or provocative.” See Welsh v. State, No. 2-08-169-CR, slip op. at 4-5,
McKithan was charged with aggravated sexual assault in an indictment that in six paragraphs alleged alternative manners and means of committing this offense. The first paragraph of the indictment alleged that McKithan sexually assaulted the complainant by placing his finger inside the complainant’s sexual organ and that McKithan compelled the complainant to submit and participate by the use of “physical force and violence, and by acts and words the Defendant placed the Complainant in fear that SERIOUS BODILY INJURY would be imminently inflicted on [the complainant].”
The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, JULIAN MARS MCKITHAN, hereafter styled the Defendant, heretofore on or about DECEMBER 17, 2006, did then and there unlawfully, intentionally and knowingly cause the penetration of the FEMALE SEXUAL ORGAN of [the complainant], hereinafter called the Complainant, by placing A FINGER in the FEMALE SEXUAL ORGAN of the Complainant, without the consent of the Complainant, namely, the Defendant compelled the Complainant to submit and participate by the use of physical force and violence, and by acts and words the Defendant placed the Complainant in fear that SERIOUS BODILY INJURY would be imminently inflicted on [the complainant].
(Emphasis in bold and capitalization in original).
We understand McKithan to have claimed on direct appeal that he was entitled to jury instructions on bodily-injury assault and on offensive-contact assault as lesser-ineluded offenses of the charged aggravated-sexual-assault offense under the “physical force and violence” allegation in the first paragraph of the indictment.
The Fort Worth Court of Appeals erred in holding that appellant was not entitled to an instruction on the lesser included offense of assault by contact.12
In McKithan, we granted review of the following ground:
Was the Court of Appeals correct in saying assault — offensive touching — is not allowed when the indictment says the defendant used force and violence against the complainant?13
In an opinion on rehearing in Ex parte Watson, we reaffirmed that Article 37.09(1) and Hall control the step-one lesser-included-offense analysis. See Ex parte Watson,
We now reaffirm the principle that we, at least implicitly, recognized in Hall: An offense is a lesser-included offense of another offense, under Article 37.09(1) of the Code of Criminal Procedure, if the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced. Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into [the first step of] the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.
Id. (footnotes omitted and emphasis supplied).
This emphasized language from the opinion on rehearing in Watson is based on the statement in Hall that “the elements of the lesser offense do not have to be pleaded [in the indictment] if they can be deduced from the facts alleged in the indictment.” See Hall,
This is consistent with our decision in Salazar v. State in which we held that a habitation “inherently” provides notice that entry is forbidden for purposes of determining whether criminal trespass is a lesser-included offense of the charged burglary-of-a-habitation offense. See Salazar v. State,
I. Is Bodily-Injury Assault or Offensive-Contact Assault a Lesser-included Offense of the Charged Offense in McKithan?
The elements of bodily-injury assault are set out in Section 22.01(a)(1) of the Penal Code, which provides that a person commits the offense of assault if
Initially, we note that McKithan has not claimed that the indictment’s allegation that he penetrated the complainant’s sexual organ with his finger is the functional equivalent (or requires proof) of bodily-injury assault or of offensive-contact assault.
McKithan’s arguments are based on the language from the opinion on rehearing in Watson that it is relevant to the step-one lesser-included-offense analysis under Hall “if an element of the lesser offense may be deduced
And we believe that settled case law supports a decision that the “physical force and violence” allegation in McKithan’s indictment is not functionally equivalent to an allegation of bodily-injury and that the State was not required to prove bodily injury to establish this “physical force and violence” allegation in McKithan’s aggravated-sexual-assault indictment. See Wisdom v. State,
We also believe that this case law supports a decision that the “physical force and violence” allegation in McKithan’s indictment is not functionally equivalent to an allegation of physical contact and that the State was not required to prove physical contact in establishing this “physical force and violence” allegation in McKi-than’s aggravated-sexual-assault indictment. See Wisdom,
II. Is Offensive-Contact Assault a Lesser-included Offense of the Charged Offense in Welsh?
Welsh argues that offensive-contact assault is a lesser-included offense of bodily-injury assault “because the element of causing bodily injury [by kicking] is legally equivalent to the complainant’s regarding such contact as offensive or provocative.” We decide that the causing-bodily-injury-by-kicking allegation in Welsh’s indictment is not functionally equivalent to an allegation that Welsh knew or should reasonably have believed that the complainant would regard this contact as offensive or provocative. The State was not required to prove the latter (i.e., that appellant knew or should reasonably have believed that the complainant would regard this contact as offensive) to establish the former (i.e. that appellant caused the complainant bodily injury by kicking). See also Welsh, slip op. at 4-5,
We also note that this Court has stated that the three statutory definitions of simple assault contained in Section 22.01(a)(1)-(8) of the Penal Code are “three distinct criminal offenses.” See Landrian v. State,
Our opinion in Hall and the opinions by the court of appeals and by this Court in Farrakhan support this decision. See Farrakhan v. State,
Declining to follow the Fort Worth Court of Appeals’s decision in Walker v. State,
For example, as charged here, the offense of evading detention required that the State prove only that appellant, by using a motor vehicle, intentionally fled from Officer Roi when appellant knew that Officer Roi was a peace officer attempting to detain him lawfully. That offense did not require the State to prove, for example, that Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when the suspect is in a vehicle); that the officer was uniformed and prominently displaying his badge; or that, if the officer was using a vehicle, that vehicle was appropriately marked as an official police vehicle. The fact that the State did prove these things in the process of proving the statutorily required elements of evading detention is irrelevant. We respectfully disagree with the Walker court’s conclusion to the contrary because its conclusion appears to have rested on what evidence the State actually presented, rather than on what evidence the State was required to present, to prove the charged offense.
See Farrakhan,
The facts required to prove the lesser offense include two that are not the same as, or less than, those required to establish the offense charged: threatening and display.
It is true that the evidence may show threatening and display. The evidence may show a number of other lesser offenses as well, such as disorderly conduct by discharging a firearm in a public place or across a public road or by displaying a firearm in a public place in a manner calculated to alarm, unlawfully carrying of weapon, or unlawful possession of weapon. But those offenses likewise are not established by the same or less than the proof required to prove the allegations in the indictment for murder. Aggravated assault by threat, like the other offenses mentioned, requires proof of additional facts.
See Hall,
In Farrakhan, we approved of the court of appeals’s decision that the “fleeing” offense was not a lesser-included offense of the charged “evading” offense even though proof of the charged “evading” offense may also have shown the “fleeing” offense. See Farrakhan,
Thus, as in Farrakhan and Hall where the facts required to show the charged offenses may also have shown “a number of other lesser offenses as well,”
The judgments of the courts of appeals in McKithan and in Welsh are affirmed.
COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.
Notes
. See § 22.01(a)(3), Tex. Penal Code (person commits an assault if person "causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”).
. See § 22.01(a)(1), Tex. Penal Code (person commits an assault if person causes bodily injury to another person); § 1.07(a)(8), Tex. Penal Code ("bodily injury” means "physical pain, illness, or any impairment of physical condition”).
.Welsh’s indictment also alleged that the complainant was a family or household member and that Welsh had previously been convicted of bodily-injury assault against a family
. See § 22.01(c), Tex. Penal Code.
. See § 12.42(a)(3), Tex. Penal Code
. See §§ 22.021(a)(1)(A), 22.02 l(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) Tex. Penal Code (person commits aggravated sexual assault if person causes the penetration of the sexual organ of another person by any means without that other person’s consent by compelling that other person to submit or participate by the use of physical force or violence and the person by acts or words places the other person in fear of imminent serious bodily injury).
. The five additional paragraphs in the indictment alleged aggravated sexual assault by other manner and means. For example, paragraph two of the indictment was identical to paragraph one except that it alleged that "by acts and words the Defendant placed the Complainant in fear that KIDNAPPING would be imminently inflicted on [the complainant.].” (Capitalization in original). See §§ 22.021(a)(1)(A), 22.02 l(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) Tex. Penal Code. We
. The record reflects that McKithan requested jury instructions on the lesser-ineluded offenses "of assault, bodily injury, and assault defensive touching.” The State argues on discretionary review that McKithan failed to preserve the claim that he was entitled to a jury instruction on offensive-contact assault because McKithan requested an instruction on "defensive touching” and "there is no such offense in the Penal Code.” We note that the State did not make this preservation-of-error claim in the court of appeals and that the court of appeals addressed the merits of McKithan’s claim that he was entitled to a jury instruction on offensive-contact assault. See McKithan, slip op. at 3 n. 3,
. See §§ 12.42(d), 22.01(e), Tex Penal Code.
. We express no opinion on whether these are lesser-ineluded offenses under the other paragraphs of the indictment. See Hall,
. McKithan argues in his brief on discretionary review that the court of appeals erred by focusing exclusively on the “aggravating factors” alleged in the indictment and ignoring the allegation of "physical force and violence,” which, according to McKithan, "without regard to any aggravating factors — provide[s] the basis for deducing the elements of the lesser offenses.” McKithan argues:
The first error, as is apparent from the language of the [court of appeals’s] holding above, is that the court of appeals focused exclusively on the "aggravating factors” alleged in the indictment. This is hard to understand, because Appellant’s brief specifically called the court's attention to the first paragraph of the indictment: "The first paragraph then alleged that Appellant ‘compelled the Complainant to submit and participate by the use of physical force and violence, and by acts and words the Defendant placed the Complainant in fear that serious bodily injury would be imminently inflicted on [the complainant].’ ” The first portion of that paragraph states an essential element of sexual assault; is not "an aggravating factor.”
The offense of sexual assault under Penal Code Sec. 22.011(a)(1)(A) requires proof that the assaultive conduct on the other person is "without that person's consent,” and subsection (b) prescribes 11 ways in which that element must be established. The first way in which it may be alleged that the assaultive conduct was "without consent” is set out in subsection (b)(1), and the State included that language in Appellant’s indictment, alleging that in causing physical contact with the complainant he "compelled the complainant to submit and participate by the use of physical force and violence.” It makes absolutely no difference that the indictment "relied on assault by threat or kidnapping as aggravating factors,” as the lower court’s opinion stated. (See quoted portion, supra) If the allegations of the indictment, less the aggravating factors, less any factors and any number of factors in the abstract, permit a deduction of a lesser offense on those reduced facts, then the cognate pleadings test [set out in Hall ] is satisfied. In this case it happens that the allegations of the sexual assault— without regard to any aggravating factors— provide the basis for deducing the elements of the lesser offenses.
(Emphasis in underline in original).
. The parties have cited published and unpublished intermediate appellate court decisions that the parties assert demonstrate conflicting intermediate-appellate-court decisions on this issue. Compare Aguilar v. State,
. McKithan also claims in his brief on discretionary review, as he did in the trial court, in the court of appeals and in his discretionary-review petition, that bodily-injury assault is also a lesser-included offense of the charged aggravated-sexual-assault offense. We will address this claim.
. Emphasis supplied.
. This "functional-equivalence concept” appears to be synonymous with the concepts of "necessary inclusion” or "subsumption of elements.” See Evans,
. In Salazar, we stated:
In this case, the Court of Appeals did correctly identify Hall as the controlling standard for assessing lesser-included offenses. However, in its analysis of the first step, the Court determined that the legal elements of criminal trespass were not comparable to the elements of burglary of a habitation as they were alleged in the indictment. According to the Court, the notable element absent from the indictment was notice of forbidden entry, which is a requirement of criminal trespass and yet nowhere mentioned in the indictment. In this case, however, it would not have been necessary to expressly include the language of notice in the indictment because notice is inherent in a "habitation.” Further, pursuant to Hall, "the elements of the lesser offense do not have to be pleaded if they can be deduced from the facts alleged in the indictment.” We believe it can be deduced from the indictment, that the appellant had notice, quite simply, because notice is inherent to a habitation and the indictment read "burglary of a habitation.”
See Salazar,
. This could be because McKithan determined that he would not have been entitled to jury instructions on these offenses under the step-two lesser-included-offense analysis under Hall, since McKithan testified at trial and denied that he penetrated the complainant's sexual organ with his finger. See Hall,
. For example, McKithan argues:
[T]he language alleging sexual assault in this indictment clearly implies the elements of Penal Code Sec. 22.01(a)[3], assault by causing physical contact with another when the actor knows or reasonably should believe the other person will regard the contact as offensive, as a possible lesser offense. It takes no great leap of the imagination to infer — that is, to deduce from the language of the indictment — that the complainant would regard as offensive [McKithan’s] physical contact, which the indictment alleged that he compelled her to submit to, by the use of force and violence, and that [McKithan] did know or reasonably should have known she would regard it as offensive.
. We note that ''infer” is a definition and synonym of the term "deduce.” See Roget’s Desk Thesaurus 133 (2001); Webster’s II New Collegiate Dictionary 294 (1999).
. We also note that McKithan's reading of the opinion on rehearing in Watson would be inconsistent with the "facts required” language in Article 37.09(1) and would change this "facts required” language into "facts deduced or inferred.” See Hall,
. McKithan also argues that this Court’s decision in Schmidt v. State "comes close to holding" that bodily-injury assault is the legal equivalent to the "physical force and violence” allegation in the indictment. See Schmidt v. State,
. See § 22.01(a)(1) (bodily-injury assault); § 22.01(a)(2) (assault by threatening another with imminent bodily injury); § 22.01(a)(3) (offensive-contact assault).
. See § 545.421(a), Tex. Transp. Code.
. See § 38.04(a), Tex. Penal Code.
.
. Hall, therefore, decided that shooting and killing a person with a gun is not, in a step-one lesser-included-offense analysis, functionally equivalent to threatening that person with imminent bodily injury by displaying a gun.
. See Hall,
. These same considerations apply in McKi-than's case since the State's proof of a "physical force and violence” indictment allegation in McKithan’s case may also have shown bodily injury and offensive contact.
Concurrence Opinion
concurring in which HOLCOMB, J., joined.
I join the majority opinion. I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a • bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness.
Frequently, one who intends to cause bodily injury also intends to cause mental distress, anger, or disgust, but these are two separate offenses with two different intended results.
I therefore agree that offensive-contact assault is not a lesser-included offense of a bodily-injury assault alleging that the defendant “kicked” the victim. The State will not necessarily prove that the defendant intended to physically contact the victim in an offensive manner as it proves that he intended to cause her bodily injury. And the same is true for an aggravated sexual assault indictment that alleges that the defendant compelled the complainant to submit and participate in the sexual act “by the use of physical force and violence.”
. The word "offensive” is commonly defined as "causing offense, specifically provocation; irritating; ... disgusting; giving pain or unpleasant sensations; disagreeable.” Common synonyms are "displeasing, disagreeable, distasteful, obnoxious, abhorrent, disgusting, impertinent, rude, saucy, opprobrious, insulting, insolent, abusive, scurrilous." Webster’s New Twentieth Century Dictionary Unabridged 1242 (1979). The word "provocative” is commonly defined as "provoking or tending to provoke” and common synonyms for the verb provoke are "arouse, stir up, rouse, awake, cause, excite, move, induce, incite, stimulate, inflame, offend, irritate, anger, chafe, exasperate, incense, enrage.” Id. at 1450.
. Obviously, most victims of aggravated sexual assault will feel disgusted, insulted, abused, and enraged by the attacker's unwanted physical contact, but the offensive-contact assault statute focuses on the defendant's intent and knowledge (or what he should reasonably have believed), not on the victim’s reaction to the defendant’s conduct. Tex. Penal Code § 22.01(a)(3) (a person commits an assault if he "causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”).
. Thus, one who "kicks” his wife may well intend both to make her hurt physically and to cause her psychic pain — to make her feel displeasure, distastefulness, or anger. But another person who kicks his wife may not care at all that she finds his conduct offensive or provocative — he simply wants to beat her up.