Comment

Aggravated assault by causing serious bodily injury is prohibited by and defined in Tex. Penal Code § 22.02(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). The definition of “serious bodily injury” is from Tex. Penal Code § 1.07(a)(46).

Culpable Mental State. The court of criminal appeals has held that aggravated assault under Texas Penal Code section 22.02 requires no culpable mental state beyond that required by simple assault under section 22.01. Rodriguez v. State, 538 S.W.3d 623, 630 (Tex. Crim. App. 2018). Section 22.02(a), defining the offense, contains no requirement of a culpable mental state. It does, however, require that the accused have “commit[ted] assault as defined in § 22.01.” Section 22.01(a) requires culpable mental states. This absence of an additional culpable mental state in section 22.02 (particularly when other enhancements in the assault and aggravated assault statutes expressly provide for one) indicated to the court that the legislature did not intend even recklessness about whether serious bodily injury would result. Rodriguez, 538 S.W.3d at 629. Rodriguez further reasoned that no additional mental state was required since the serious bodily injury element was not the dividing line between lawful and unlawful conduct, and, thus, once a defendant has committed a simple assault (by intentionally, knowingly, or recklessly injuring another), “it is not unreasonable that he should be criminally responsible for any serious bodily injury that may occur.” Rodriguez, 538 S.W.3d at 629.

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).

Effect of Pleading “Intentionally, Knowingly, or Recklessly Causing Serious Bodily Injury.” Particularly before Rodriguez, indictments for aggravated assault by causing serious bodily injury often alleged that the defendant “intentionally, knowingly, [or] recklessly caused serious bodily injury.” This is quite likely to be construed as unnecessarily but nevertheless effectively alleging that the defendant must have been at least reckless about not only whether bodily injury would result from his action but also whether that bodily injury would be serious.

The Committee was divided over whether, in such cases, the trial court should instruct the jury according to the statutory requirements or under the heightened burden set out in the indictment. As a general rule, the jury charge must track the allegations in the indictment. This ensures that the defendant is convicted only for crimes for which he had notice. It also preserves the right to grand jury indictment. But as the court of criminal appeals made clear in Rodriguez, there is no offense that requires intent, knowledge, or recklessness as to serious bodily injury. Rodriguez, 538 S.W.3d at 630. For that reason, there is no risk that the defendant would be convicted of a different crime than charged in the indictment. Additionally, on appeal, an extra-statutory allegation erroneously increasing the state’s burden would not be incorporated into the hypothetically correct jury charge. Ramjattansingh v. State, 548 S.W.3d 540, 549 (Tex. Crim. App. 2018). Several members also expressed concern in having the trial court charge the jury on the law of aggravated assault in a way that differs from the court of criminal appeals’s interpretation.

In certain instances, however, permitting the jury charge to vary from the indictment could amount to a constructive amendment of the indictment, allowing the state an end run around Tex. Code Crim. Proc. art. 28.10. This would be of particular concern in cases where the defendant has relied on the state’s pleading and fashioned his defense around a lack of mental state as to serious bodily injury. In such cases, granting a defense request for a mistrial may be a better remedy than altering the jury charge.

In many more cases, the issue may be academic because the state’s proof will show not just an intent to cause bodily injury but also serious bodily injury. In such instances, the parties may prefer to simplify the elements, even if this requires the state to prove more than it must. The list of elements in the application of law to facts unit in the preceding instruction could be modified as follows: