Chapter 22
Assaultive Offenses
22.6 Instruction—Aggravated Assault by Using or Exhibiting Deadly Weapon in Causing Bodily Injury
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of aggravated assault.
Relevant Statutes
A person commits the offense of aggravated assault if the person intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault.
[Include the following if raised by the evidence.]
It does not matter that the other person allegedly injured was the defendant’s spouse.
Definitions
Bodily Injury
“Bodily injury” means physical pain, illness, or any impairment of physical condition.
Intentionally Causing Bodily Injury
A person intentionally causes bodily injury to another if it is the person’s conscious objective or desire to cause the bodily injury to another.
Knowingly Causing Bodily Injury
A person knowingly causes bodily injury to another if the person is aware that the person’s conduct is reasonably certain to cause the bodily injury to another.
Recklessly Causing Bodily Injury
A person recklessly causes bodily injury to another if the person is aware of but consciously disregards a substantial and unjustifiable risk that the person’s action will cause bodily injury to another. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
Deadly Weapon
“Deadly weapon” means—
- a firearm; or
- anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
- anything actually used by the defendant in a manner making it capable of causing death or serious bodily injury; or
- anything that the defendant intended to use in a manner that if so used would make it capable of causing death or serious bodily injury.
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 bodily injury to [name];
- the defendant did this—
- intending to cause bodily injury; or
- knowing that he would cause bodily injury; or
- with recklessness about whether he would cause bodily injury; and
- the defendant, during the alleged assault, used or exhibited a [insert alleged deadly weapon], a deadly weapon.
You must all agree on elements 1, 2, and 3 listed above, but you do not have to agree on the culpable mental states listed in elements 2.a, 2.b, and 2.c 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.]
Introductory Note on Charging Offense. Indictments for this form of felony assault are of at least two types. This means that an instruction correct for some cases may not—because of the pleading—be appropriate for other cases. The above instruction, as is the case with all instructions, should be modified to correspond to the charging instrument.
Charging Instrument with Weapon Allegation. The statute does not require that the deadly weapon have been used to cause the bodily injury that is alleged as another element of the offense. Nevertheless, some indictments do allege that the weapon was so used:
[The defendant] intentionally and knowingly use[d] a deadly weapon, to-wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury and did then and there intentionally and knowingly cause bodily injury to [the victim] by stabbing [her] with said deadly weapon.
Cepeda v. State, No. 04-05-00205-CR, 2006 WL 704439, at *2 (Tex. App.—San Antonio Mar. 22, 2006, no pet.) (not designated for publication).
Other indictments, however, follow the pattern of the statute that the weapon was so used:
[The defendant] intentionally, knowingly, and recklessly cause[d] bodily injury to [the victim] by kicking [the victim] about the head with Defendant’s foot, and the said Defendant did then and there use and exhibit a deadly weapon, during the commission of said assault, to-wit: a foot, that in the manner of its use and intended use was capable of causing death and serious bodily injury.
Meza v. State, No. 08-02-00077-CR, 2003 WL 21761705, at *2 (Tex. App.—El Paso July 31, 2003, pet. ref’d) (mem. op., not designated for publication).
Reference to “the Assault” in Instructions. Defendants may, of course, challenge whether the state has proved that an assault occurred. Thus any reference in the instructions to “the assault” may violate the spirit if not the letter of the prohibition against commenting on the evidence.
Use or Exhibition of Deadly Weapon. The court of criminal appeals has explained:
“[U]sed . . . a deadly weapon” during the commission of the offense means that the deadly weapon was employed or utilized in order to achieve its purpose. Whereas “exhibited a deadly weapon” means that the weapon was consciously shown or displayed during the commission of the offense.
Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989), reaffirmed by Coleman v. State, 145 S.W.3d 649, 652–55 (Tex. Crim. App. 2004).
In CPJC 10.2, the material on submission of a deadly weapon special issue addresses the possibility that “use” might be defined in a way that incorporates the following:
A person “uses a deadly weapon during the commission of a felony offense or in immediate flight from the commission” if the person in any way employs the deadly weapon to facilitate commission of the felony or escape from its commission. A person’s mere possession of a deadly weapon, if the person intends this possession to facilitate the felony or escape, may constitute use of that deadly weapon.
The Committee decided, however, not to recommend a definition of either “use” or “exhibit” in the instruction. In most cases, jurors’ common-sense understanding of those terms should suffice to permit their proper application. Further, the case law does not provide clear and complete definitions of them for the exceptional situations in which general understanding might not suffice.
Deadly Weapon. The statutory definition of “deadly weapon” has given the appellate courts considerable difficulty. E.g., Alexander v. State, No. 03-07-00711-CR, 2008 WL 2736900 (Tex. App.—Austin July 9, 2008, no pet.) (not designated for publication); McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000) (proof that item was deadly weapon need not include proof that defendant intended by using it to cause death or serious bodily injury).
The instruction offers an alternative that attempts to rephrase the statutory provisions in a way that makes them more understandable. For a definition of “deadly weapon” that conforms more closely to the statute, see CPJC 20.10 and CPJC 29.4
“[D]uring the Commission of the Assault.” “[D]uring the Commission of the Assault.” In Johnson v. State, 271 S.W.3d 756, 759 (Tex. App.—Waco 2008, pet. ref’d), the indictment alleged that Johnson caused bodily injury to Genco “by striking [her] with a hand, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a piece of glass, during the commission “[D]uring the Commission of the Assault.” In Johnson v. State, 271 S.W.3d 756, 759 (Tex. App.—Waco 2008, pet. ref’d), the indictment alleged that Johnson caused bodily injury to Genco “by striking [her] with a hand, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a piece of glass, during the commission of said assault.” Johnson argued the evidence showed that his use of the piece of glass occurred only after he had completed the causing of injury by striking. The court agreed with his general statement of the law:
Because the focus of the offense remains on the result and because the statute requires that a deadly weapon be used or exhibited “during the commission of the assault,” the evidence must show that the defendant used or exhibited the weapon at some point at or before the offense is complete (i.e., at or before the time the complainant sustains bodily injury).
Johnson, 271 S.W.3d at 761. But it found that the evidence showed a second and later blow that also injured the victim, and that during this second blow Johnson used the piece of glass.
Comment
Aggravated assault by using or exhibiting a deadly weapon is prohibited by and defined in Tex. Penal Code § 22.02(a)(2). 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 “deadly weapon” is from Tex. Penal Code § 1.07(a)(17).