Chapter 22
Assaultive Offenses
22.3 Instruction—Assault by Offensive Touching
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of assault.
Relevant Statutes
A person commits the offense of assault if the person intentionally or knowingly causes physical contact with another and the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Definitions
Intentionally Causing Physical Contact with Another
A person intentionally causes physical contact with another person if it is the person’s conscious objective or desire to cause such physical contact.
Knowingly Causing Physical Contact with Another
A person knowingly causes physical contact with another person if the person is aware that the person’s conduct is reasonably certain to cause such physical contact.
Knowing Contact with Another Will Be Offensive or Provocative
A person knows that another person will regard physical contact as offensive or provocative if the person is aware that the other person is reasonably certain to regard that physical contact as offensive or provocative.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
- the defendant, in [county] County, Texas, on or about [date], caused physical contact with [name];
- the defendant did this intentionally or knowingly; and
- the defendant either—
- knew [name] would regard this physical contact as offensive or provocative; or
- should reasonably have believed that [name] would regard this physical contact as offensive or provocative.
You must all agree on elements 1, 2, and 3 listed above, but you do not have to agree on the culpable mental state listed in elements 3.a and 3.b above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Definitions. The law provides no definition of “physical contact,” “offensive,” or “provocative.”
Culpable Mental State. This offense seems clearly to require a two-part culpable mental state. One part requires that the causing of physical contact be intentional or knowing. The other involves a culpable mental state concerning the offensiveness of the contact.
Need to Prove Victim Found Contact Offensive or Provocative. Whether the offense requires proof that the victim actually regarded the contact as offensive or provocative is not clear from the statute or the case law.
Victim Spouse of Defendant. Texas Penal Code section 22.01(a)(3), unlike the other portions of section 22.01(a), does not contain language explicitly stating that the victim may be the defendant’s spouse. Certainly this does not mean that there is a “spousal exception” to this type of assault. But by making this language explicit, the instruction goes beyond the statutory language. This would be of particular importance if a jury is instructed on several types of assault. The charge should not contain language suggesting that only the other types of assault lack a “spousal exemption.”
Comment
Assault by offensive touching is prohibited by and defined in Tex. Penal Code § 22.01(a)(3). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03.