Comment

Assault by impeding normal breathing or circulation is prohibited by and defined in Tex. Penal Code § 22.01(b)(2)(B). Penal Code section 22.01(b–3) raises the offense from a third-degree to a second-degree felony on proof of a prior conviction for family/dating/household violence. The definition of “bodily injury” is from Tex. Penal Code § 1.07(a)(8). The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “dating relationship” is from Tex. Fam. Code § 71.0021(b). The definition of “family” is from Tex. Fam. Code § 71.003. The definition of “related by consanguinity” is from Tex. Gov’t Code § 573.022. The definition of “related by affinity” is from Tex. Gov’t Code § 573.024. The definition of “household” is from Tex. Fam. Code § 71.005.

The question arises as to whether and, if so, how to include the definition of bodily injury and related class A assault language in the charge or to offer a streamlined charge that focuses solely on the impeding element. The Committee has chosen a modified approach—to describe the element as “causing bodily injury by impeding.” Three cases inform this decision.

First, the court of criminal appeals considered the doubling of the mens rea in the statute—intentionally, knowingly, or recklessly causing bodily injury and intentionally, knowingly, or recklessly impeding breathing or circulation—and whether it created an offense with one gravamen or multiple. Price v. State, 457 S.W.3d 437, 442–43 (Tex. Crim. App. 2015). The court decided that the phrase “impeding the normal breathing or circulation of the blood of the person” describes the required injury and so rejected the idea that the statute has multiple gravamina. Price, 457 S.W.3d at 443. Instead, the second mens rea recitation narrows the offense to a result-of-conduct of-fense. Price, 457 S.W.3d at 443.

A year later, the court developed this idea by finding that the omission of a definition of bodily injury, though error, did not egregiously harm the defendant. Marshall v. State, 479 S.W.3d 840, 842 (Tex. Crim. App. 2016). Because impeding breathing was the particular type of bodily injury in the case, “the jury found bodily injury per se” when it found that Marshall impeded the victim’s breathing. Marshall, 479 S.W.3d at 844. The Court held that “obstructing or impeding a person’s ability to breath (sic) impairs a person’s physical condition—a form of bodily injury.” Marshall, 479 S.W.3d at 844. See also Marshall, 479 S.W.3d at 845 (calling it “a specific type of bodily injury”). The reasoning in Marshall, however, did not illuminate why the omission of the definition of bodily injury was error in the first place, if the occlusion was bodily injury per se.

Most recently, a closely divided court decided in Ortiz v. State that the statute establishes impeding as an essential element of the offense because “the gravamen of occlusion assault is not just any bodily injury but is exclusively impeding.” Ortiz v. State, 623 S.W.3d 804, 808 (Tex. Crim. App. 2021). The court’s particular holding was that a class A assault is not a lesser-included offense of this felony assault. Ortiz, 623 S.W.3d at 808–09. Ortiz did not address Marshall’s holding that bodily injury must be included in the application paragraph of an occlusion instruction, but Ortiz’s conception of the occlusion offense puts that holding in doubt. That is, if bodily-injury assault is not a lesser included offense to occlusion assault, because the occlusion is per se bodily injury, why include the concept of bodily injury at all? According to this line of cases, there is no issue for the jury to decide concerning bodily injury, only whether or not there was occlusion.

Judge Yeary dissented to this holding. Ortiz, 623 S.W.3d at 810–13. He disagreed with Price, believing instead that the occlusion element is a “nature-of-conduct type of element, requiring that the result-of-conduct element of simple assault—bodily injury—be caused in a particular way.” Ortiz, 623 S.W.3d at 811. “A defendant who applies pressure to the throat or neck but fails thereby to impede the circulation of blood, or who blocks the nose or mouth but fails thereby to impede normal breathing, may still have caused his family member pain or some other form of physical impairment like a contusion.” Ortiz, 623 S.W.3d at 811. He concluded that, by taking away “evidence that the bodily injury was accomplished in that particular way—that is, by occlusion . . .you may still have the lesser-included offense of simple assault.” Ortiz, 623 S.W.3d at 811.

Presiding Judge Keller, with two others, also dissented. Ortiz, 623 S.W.3d at 813–19. She would take a “transactional” approach—that “bodily injury includes all physical injuries sustained in a single transaction.” Ortiz, 623 S.W.3d at 813. Thus, if the jury believed the defendant caused some bodily injury during a transaction, but that no occlusion occurred, the defendant could be guilty only of a class A assault. Ortiz, 623 S.W.3d at 813.

The Committee has concluded that reading Ortiz, Price, and Marshall together requires the inclusion of the definition of bodily injury but that the offense singularly describes one type of injury—occlusion. This charge reflects that conclusion by modifying the definitions of the mens rea elements to merge the bodily injury and occlusion concepts and by reciting the gravamen element as “causing bodily injury by impeding.”