Comment

Assault by causing bodily injury is prohibited by and defined in Tex. Penal Code § 22.01(a)(1). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8).

Jury Unanimity in Assault Cases. In Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008), the court of criminal appeals addressed jury unanimity in some assault cases. Unanimity was not required, Landrian held, when a jury in an aggravated assault case was told it could convict on proof that either—

1. the defendant caused bodily injury to the victim by using a deadly weapon (a bottle); or
2. the defendant caused serious bodily injury to the victim by throwing a bottle in the victim’s direction.

Both theories described a single crime—causing bodily injury to the victim by an act—and differed only with regard to aggravating matters, i.e., using a deadly weapon or causing bodily injury that is serious. Unanimity is not required regarding such aggravating matters. Landrian, 268 S.W.3d at 538–39.

The analysis suggested that unanimity would be required if the jury were permitted to convict on more than one of the three alternatives set out in Texas Penal Code section 22.02(a)—causing bodily injury, threatening bodily injury, or causing offensive physical contact. Landrian, 268 S.W.3d at 540.

In Landrian, some witnesses testified that Landrian struck the victim with a beer bottle. Apparently, the state did not rely on the possibility that this proved aggravated assault under the first alternative. Rather, the state relied on proof of a single “act” by the defendant consisting of throwing a beer bottle. It offered that this act could give rise to aggravated assault either because the bottle (1) was a deadly weapon and was used to cause bodily injury or (2) was used to cause bodily injury that was serious.

Landrian may not apply, then, and unanimity may be required if the alternative theories submitted to the jury rely on different though related actions by the defendant, e.g., “cracking” the victim on his head with a beer bottle or throwing a beer bottle in the victim’s direction.

Culpable Mental State. Assault by causing bodily injury is clearly a “result type” offense, and the culpable mental state must apply to the required result—the occurrence of bodily injury. Must the culpable mental state also apply to the conduct—for example, striking with a stick? The above instruction assumes it does not apply. The statute defining the crime does not even mention the conduct, and the need for some conduct is created only by implication and by Penal Code section 6.01.

It is very unlikely that a defendant would be proved to have had the intent to cause the result of injury but the facts raise some question whether the defendant intended the conduct that caused the injury.

Effect of State’s Failure to Plead Recklessness. Although the offense of assault can be committed by causing injury intentionally, knowingly, or recklessly, with no change in the punishment range, indictments sometimes allege only intent or knowledge. Reed v. State holds that, in this situation, recklessness cannot simply be added into the application paragraph of the jury instructions. Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003). Reed gives two reasons for this: (1) it would impermissibly broaden the theories of liability in the jury charge beyond those alleged in the indictment, and (2) except for offenses submitted as lesser included offenses, Tex. Code Crim. Proc. art. 21.15’s extra-pleading requirements for recklessness preclude it. Reed, 117 S.W.3d at 265. This does not mean that recklessness cannot be submitted to the jury, only that it must be submitted in the format of a lesser included offense under Tex. Code Crim. Proc. art. 37.09(3). Hicks v. State, 372 S.W.3d 649, 653 (Tex. Crim. App. 2012). In a petition for discretionary review, the state argues that submitting recklessness in the wrong format (alongside intent and knowledge instead of in a separately submitted lesser included offense) cannot result in more than theoretical harm under an Almanza analysis. State’s Petition for Discretionary Review at 14, Gonzalez v. State, No. 02-18-00179-CR, 2019 WL 2042573 (Tex. App.—Fort Worth May 9, 2019, pet. granted) (No. PD-0572-19); see Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).

Injury to Spouse. The statute awkwardly defines the offense as causing injury “to another, including the person’s spouse.” Tex. Penal Code § 22.01(a)(1). Rather than complicating the definition with this additional phrase, the instruction offers a specific statement that would effectively implement what the legislature must have intended. This statement may be included if the evidence raises the possibility that the injured victim was the defendant’s spouse. It should not be included in other situations.