TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-19-00027-CR
Blair Beck McCall, Appellant
v.
The State of Texas, Appellee
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
NO. CR-15-0868, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
OPINION
We reinstate this appeal from abatement; grant appellant’s motion for rehearing;
withdraw our opinion and judgment issued January 8, 2021; and substitute the following opinion
in place of the earlier one.
The State indicted Blair Beck McCall for the felony offense of assault by causing
bodily injury to the complainant, a member of McCall’s household or with whom he had a dating
relationship, “by intentionally, knowingly, or recklessly impeding the normal breathing or
circulation of the blood . . . by applying pressure to the throat or neck and blocking the nose or
mouth of” the complainant. See Tex. Penal Code § 22.01(a)(1), (b)(2)(B). This offense is called
“occlusion assault.” See Ortiz v. State, 623 S.W.3d 804, 805 (Tex. Crim. App. 2021). The trial
court’s charge submitted occlusion assault to a jury and, on the State’s request and over McCall’s
objection, a misdemeanor offense that the charge termed “the lesser included offense of
Assault – Bodily Injury Family Violence.” The jury acquitted McCall of occlusion assault but
found him guilty of the misdemeanor offense. The trial court then assessed punishment at one
year in the county jail, probated for 18 months, with a $2,500 fine and entered a conforming
judgment, noting an “affirmative finding of family violence.” See Tex. Fam. Code § 71.004;
Tex. Code Crim. Proc. art. 42.013.
In four issues, McCall contends that (1) the trial court erred by submitting the
misdemeanor offense because it is not a lesser included offense of occlusion assault, (2) the
evidence was insufficient to support the guilty verdict on the misdemeanor offense, (3) there was
a material variance between the indictment and the proof at trial on bodily injury, and (4) the jury
charge contained an improper comment on the weight of the evidence. We sustain McCall’s first
issue, reverse the judgment of conviction, and render a judgment of acquittal for occlusion assault.
BACKGROUND
The State indicted McCall for one count—occlusion assault. See Tex. Penal Code
§ 22.01(a)(1), (b)(2)(B). The indictment tracked the statutory language, alleging:
On or about the 5th day of July 2015, in Hays County, Texas, the Defendant, Blair
McCall, did then and there intentionally, knowingly, or recklessly cause bodily
injury to Vivian Sanchez, a member of the defendant’s family or member of the
defendant’s household or person with whom the defendant has or has had a dating
relationship, by intentionally, knowingly, or recklessly impeding the normal
breathing or circulation of the blood of Vivian Sanchez by applying pressure to the
throat or neck and blocking the nose or mouth of Vivian Sanchez.
At trial, the State, after it rested and closed, asked the court to submit the Class A misdemeanor
offense of “lesser-included assault, bodily injury, family violence” to the jury because the
State believed that the evidence caused “strangulation [to] come into question.” At the charge
2
conference, McCall objected to submitting the misdemeanor offense: “I am going to object to
the lesser-included, but I think the evidence has been raised. . . . So I suspect that’ll be the Court’s
ruling.” The court overruled the objection and submitted both occlusion assault and the
State-requested misdemeanor assault. The jury acquitted on occlusion assault but convicted on
the misdemeanor. The court entered judgment on the guilty verdict, and McCall appealed.
After we issued our now-withdrawn January 8, 2021 opinion in this appeal, McCall
moved for rehearing, and while his motion was pending, the Court of Criminal Appeals issued its
decision in Ortiz. In response to Ortiz, we asked the parties for supplemental briefing about what
effect, if any, Ortiz’s analysis had on our disposition of the motion for rehearing and of this appeal.
The parties have now filed their supplemental briefs and participated in an oral argument.
STANDARD OF REVIEW AND APPLICABLE LAW
To review a claim of charge error, we first determine whether the claimed error
exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Harmel v. State,
597 S.W.3d 943, 956 (Tex. App.—Austin 2020, no pet.). “[A]ll alleged jury-charge error must
be considered on appellate review regardless of preservation in the trial court.” Kirsch v. State,
357 S.W.3d 645, 649 (Tex. Crim. App. 2012); accord Middleton v. State, 125 S.W.3d 450, 453
(Tex. Crim. App. 2003). If there is error, we evaluate the harm caused by the error. Ngo, 175 S.W.3d
at 743; Harmel, 597 S.W.3d at 956. The amount of harm needed for a reversal depends on whether
the defendant preserved a complaint about the error. Swearingen v. State, 270 S.W.3d 804, 808
(Tex. App.—Austin 2008, pet. ref’d). If not preserved, we may reverse only if the error caused
“egregious harm.” Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). But if preserved,
we reverse when we find merely “some harm” to the defendant’s rights. Ngo, 175 S.W.3d at 743.
3
Additionally, determining whether submission of a lesser included offense was
error usually requires a two-step inquiry. See Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App.
2007). The first step, a question of law, is determining whether an offense is a lesser included
offense of the charged offense. Id. This step “does not depend on the evidence to be produced at
the trial” but “must be[] capable of being performed before trial by comparing the elements of the
offense as they are alleged in the indictment or information with the elements of the potential
lesser-included offense.” Id. at 535–36; accord State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim.
App. 2013). We compare the greater offense’s statutory elements as modified by any descriptive
averments in the indictment with only the statutory elements of the lesser offense. See Meru,
414 S.W.3d at 162–63; Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on
reh’g) (per curiam).1
Governing standards forbid us from considering any evidence in step one. See
Ex parte Watson, 306 S.W.3d at 263 (citing and applying Hall, 225 S.W.3d at 526, 531, 535–36).
We look only to statutory elements and the indictment, nothing else: “‘we do not consider the
evidence that [would have been] presented at trial’ in the first step . . . ”; “[i]nstead, we consider
only the statutory elements of [the offense] as [those elements] were modified by the particular
allegations in the indictment.” Id. at 263 (second and third alterations added, first and fourth
alterations in original) (quoting Hall, 225 S.W.3d at 536); accord id. at 272–73 (op. on reh’g).
Based on our review of statutory elements and the indictment, an offense is a lesser
included offense of the charged offense when it is within the proof necessary to establish the
charged offense. See Tex. Code Crim. Proc. art. 37.09(1); Bullock v. State, 509 S.W.3d 921, 924
1
We cite the Ex parte Watson opinion on original submission unless otherwise noted.
4
(Tex. Crim. App. 2016). An offense is within the proof necessary to establish the charged offense
if the indictment either (1) alleges all the elements of the lesser included offense or (2) alleges
elements plus facts (including descriptive averments, such as non-statutory manner and means,
that are alleged for providing notice) from which all the elements of the lesser included offense
may be deduced. Meru, 414 S.W.3d at 162. If a descriptive averment in the indictment is identical
to an element of the lesser offense or if an element of the lesser offense may be deduced from a
descriptive averment in the indictment, then the respective element of the lesser offense is within
the allegations of the greater offense. Ex parte Watson, 306 S.W.3d at 273 (op. on reh’g).
The second step of the inquiry is analyzing whether the evidence raised the lesser
included offense. See Hall, 225 S.W.3d at 536. But when the State requests submission of a lesser
included offense, as in this case, the State is entitled to the submission based only on the first step.
See Grey v. State, 298 S.W.3d 644, 645 (Tex. Crim. App. 2009); Sifuentes v. State, 494 S.W.3d 806,
818–19 (Tex. App—Houston [14th Dist.] 2016, no pet.); Satchell v. State, 321 S.W.3d 127, 136
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).
OCCLUSION ASSAULT AND SIMPLE BODILY-INJURY ASSAULT
The indictment here charged McCall with
intentionally, knowingly, or recklessly caus[ing] bodily injury to Vivian Sanchez,
a member of the defendant’s family or member of the defendant’s household or
person with whom the defendant has or has had a dating relationship, by
intentionally, knowingly, or recklessly impeding the normal breathing or
circulation of the blood of Vivian Sanchez by applying pressure to the throat or
neck and blocking the nose or mouth of Vivian Sanchez.
The elements of occlusion assault as charged by the indictment are therefore
5
(1) that the defendant intentionally, knowingly, or recklessly
(2) caused bodily injury to the complainant
(3) by impeding her normal breathing or circulation of blood by applying pressure
to her throat or neck and blocking her nose or mouth and
(4) that the complainant either was a member of defendant’s family, was a member
of his household, or was or had been in a dating relationship with him.
See Tex. Penal Code § 22.01(a)(1), (b)(2)(B); Philmon v. State, 609 S.W.3d 532, 536 (Tex. Crim.
App. 2020) (listing similar elements as modified by that case’s indictment). Aside from naming
the complainant, this indictment tracked the applicable statutory language and contained no
relevant averments or anything else to modify the statutory elements necessary to prove occlusion
assault. See Ex parte Watson, 306 S.W.3d at 263 (requiring, in step one of lesser-included analysis,
comparison of purported greater offense’s statutory elements and relevant modifications from
indictment with statutory elements of purported lesser included offense (citing and applying Hall,
225 S.W.3d at 526, 531, 535–36)).
To continue under the first step of lesser-included-offense analysis, we identify
the statute that defines the Class A misdemeanor offense for which McCall was convicted. See
Meru, 414 S.W.3d at 162–63; Ex parte Watson, 306 S.W.3d at 273 (op. on reh’g). That statute is
Penal Code section 22.01(a)(1)—simple bodily-injury assault—whose elements are that (1) the
defendant intentionally, knowingly, or recklessly (2) caused bodily injury to the complainant.
The Court of Criminal Appeals recently addressed whether simple bodily-injury
assault can be a lesser included offense of occlusion assault. In Ortiz, the Court resolved appeals
from two cases in which the defendant requested submission of simple bodily-injury assault as a
lesser included offense of a charged occlusion assault. 623 S.W.3d at 805. The Court undertook
the two-step lesser-included-offense analysis called for by Hall, Ex parte Watson, and Meru,
6
(1) comparing the statutory elements of occlusion assault to those of simple bodily-injury assault
and (2) deciding that the relevant evidence in each of the two cases did not raise simple
bodily-injury assault. Id. at 806–09. In its comparison of statutory elements, the Court considered
the statute’s use of “except” to introduce occlusion assault to be crucial:
Bodily-injury assault is a misdemeanor “except” when it is a felony. . . . The
statute defining occlusion assault expressly incorporates bodily-injury assault into
the definition, so the appellants argue that misdemeanor bodily-injury assault is
included in occlusion assault. But what the statute gives, it also takes away:
bodily-injury assault is a Class A misdemeanor “except” it is a third-degree felony
if the complainant has a relevant relationship to the defendant, and the defendant
impedes the victim’s normal breathing or blood circulation. Impeding normal
breathing or blood circulation describes occlusion assault’s required injury.
Id. at 806–07 (internal citation omitted). Based on its comparison of statutory elements, including
a discussion of occlusion assault’s gravamen, the Court concluded that
[O]cclusion assault without impeding would lack a gravamen. Its statutorily
specified injury is unavoidable. The failure to prove it would be like failing to
prove bodily injury in other felony bodily injury assaults: there would be no
offense. If impeding is not proven, then the evidence is legally insufficient to prove
occlusion assault, and proving a different injury proves a different assault but not
an included one because the statute requires impeding.
....
. . . [N]on-impeding injuries are not included in occlusion assault because they are
not proven by the same or less facts than required to prove occlusion assault; they
are proven by different, additional facts.
Id. at 807–08, 809 (emphases added). To reach these conclusions, the Court observed that the
statutorily required occlusion injury is not merely different in degree from other injuries but is
instead different in kind:
7
The non-impeding injury is a different injury than impeding. Even a non-impeding
injury inflicted on the neck, throat, mouth, or nose would not be proven by the same
or less than the facts needed to prove occlusion assault. If pinching the neck caused
pain but did not impede normal breathing or blood circulation, the assault would
not be included because the assault by pinching would require an additional fact
proving a different injury than impeding.
....
. . . [T]he gravamen of occlusion assault is not just any bodily injury but is
exclusively impeding. In short, impeding is the focus of occlusion assault and
defines its allowable unit of prosecution.
....
. . . Occlusion assault has a statutorily specified injury, the injury is the focus of
the offense, and proving a different bodily injury proves a different assault rather
than an included one.
Id. at 807, 808, 809 (emphasis added).
Ortiz controls McCall’s appeal. Considering the jury charge and the relevant
statutory elements in light of Ortiz, we conclude that in this case simple bodily-injury assault is
not an included offense of occlusion assault because specifying an occlusion injury is exclusive of
proof of other bodily injuries. Thus, “proving a different bodily injury proves a different assault
rather than an included one.” Id. at 809. The indictment contains nothing modifying occlusion
assault’s statutory elements, save for naming the complainant. Constrained by Ortiz, we conclude
that the trial court erred by submitting simple bodily-injury assault over McCall’s objection.
Although Ortiz included some limitations on the consequences of its analysis, the
limitations do not apply here. First, the Court stated its holding with reference to cases in which
the defendant “dispute[s]” one element or another of occlusion assault: “We hold that bodily-injury
assault is not a lesser-included offense of occlusion assault when the disputed element is the injury
because the statutorily specified injury of impeding normal breathing or blood circulation is
8
exclusive of other bodily injuries.” Id. at 805. But here, nothing in the statutory elements or the
indictment—the only two sources to which we may look in step one of lesser-included analysis,
see Ex parte Watson, 306 S.W.3d at 263 (citing and applying Hall, 225 S.W.3d at 526, 531, 535–
36); accord id. at 272–73 (op. on reh’g)—reveals which elements of occlusion assault McCall was
disputing. Still, to reach its holding, the Court in Ortiz needed to conduct the first-step inquiry of
comparing statutory elements and the indictment. And based on that analysis and on the statutory
elements and indictment here, we must conclude that simple bodily-injury assault was not an
available lesser included offense.
Second, the Court in Ortiz said that its opinion “does not foreclose all
lesser-included-offense instructions for occlusion assault” but gave as examples only cases in
which “the evidence” puts only the non-injury elements of occlusion assault “at issue.” 623 S.W.3d
at 808. The Court then said that the two defendants before it had not shown the right mix of
evidence in their cases to support simple bodily-injury assault as a lesser included offense:
[T]he evidence in these cases did not raise an issue about the relationship between
the parties or the possibility of an attempted occlusion assault. Rather, [both
defendants] sought instructions for the lesser offense of bodily-injury assault for
non-impeding injuries. But non-impeding injuries are not included in occlusion
assault because they are not proven by the same or less facts than required to prove
occlusion assault; they are proven by different, additional facts. Consequently,
neither [defendant] was entitled to the instruction sought.
Id. at 808–09. Because the limitations mentioned by Ortiz in this instance turn on the evidence
and because step one of the lesser-included inquiry forbids review of the evidence, these
limitations do not apply here.
We therefore reach the following conclusion based on Ortiz (and Hall, Ex parte
Watson, and Meru). When, as here, the State charges only occlusion assault in an indictment that
9
does not modify occlusion assault’s statutory elements, the State may never receive, over the
defendant’s objection, a submission of simple bodily-injury assault as a lesser included offense of
occlusion assault. See Meru, 414 S.W.3d at 164 (“Because this first prong is not met, we need not
proceed to the second prong and examine the evidence presented at trial to determine whether a
jury could have found Appellee guilty only of criminal trespass.”).
The State resists that conclusion by advancing several arguments, but none
persuades us. First, the State relies on facts drawn from the evidence admitted at trial to try to
distinguish this case from the two underlying Ortiz. For example, the State argues that the evidence
against McCall tended to show that he caused the complainant non-occlusion bodily injury “as
part of the same impulse and continuum of action as the alleged occlusion offense.” But we are
forbidden from considering the evidence here: we are limited to comparing statutory elements
and any averments in the indictment because of Hall, Ex parte Watson, and Meru. See, e.g., Hall,
225 S.W.3d at 536 (“Applying the first step of the lesser included-offense analysis in the instant
case, we do not consider the evidence that was presented at trial.”).
The same goes for the State’s argument from the jury charge. Even if, as the State
argues, the charge submitted simple bodily-injury assault by submitting all but one of the identical
elements that it used to submit occlusion assault, the analysis required of us does not turn on what
is in the charge. It turns only on statutory elements and the indictment.
Next, the State argues that Ortiz is limited to analyzing lesser included offenses
under Code of Criminal Procedure article 37.09(1) and that the Court in Ortiz did not consider
Article 37.09(2). Subpart (2) of Article 37.09 says that an offense is a lesser included offense if
“it differs from the offense charged only in the respect that a less serious injury or risk of injury to
10
the same person, property, or public interest suffices to establish its commission.”2 The State is
misreading portions of Ortiz. The Court there considered Article 37.09(2) inapplicable—and thus
no support for submitting simple bodily-injury assault as a lesser included offense of occlusion
assault—“because, even assuming that bodily injury assault requires a less serious injury or risk
of injury than occlusion assault, it also differs from occlusion assault in that it does not require a
particular relationship between the defendant and the complainant.” Ortiz, 623 S.W.3d at 805.
For that reason, simple bodily-injury assault differs from occlusion assault in one way more than
just a differing injury and therefore cannot be a lesser included offense under Article 37.09(2).
The State’s response on this score is that because this is a “family violence” case,
the relationship element of occlusion assault is “a component of” the conviction for simple
bodily-injury assault, thereby allowing the conviction to fit within Article 37.09(2) by differing
from occlusion assault based on only a lesser injury. The “family violence” finding to which the
State refers is the one called for by Code of Criminal Procedure article 42.013 and which is
reflected in the judgment of conviction. That article says: “In the trial of an offense under Title 5,
Penal Code, if the court determines that the offense involved family violence, as defined by
Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter
the affirmative finding in the judgment of the case.” Tex. Code Crim. Proc. art. 42.013. An
Article 42.013 finding is not an element of any offense. See Boas v. State, 604 S.W.3d 488, 492–
93 (Tex. App.—Houston [14th Dist.] 2020, no pet.); see also Butler v. State, 189 S.W.3d 299, 302
(Tex. Crim. App. 2006) (noting that Article 42.013’s plain language “assigns the responsibility for
2
Neither of the remaining subparts of Article 37.09—about offenses that differ only in
their required culpable mental states and attempt offenses—is raised here. See Tex. Code Crim.
Proc. art. 37.09(3), (4).
11
making the family-violence determination solely to the trial court”). Because the indictment’s
averments enter our analysis only when they modify the purported greater offense’s elements—
not the purported lesser included offense’s elements—we do not consider whether the “family
violence” finding became “a component of” McCall’s conviction for simple bodily-injury assault.
See Meru, 414 S.W.3d at 162–63; Ex parte Watson, 306 S.W.3d at 273 (op. on reh’g).
Further, and as the State acknowledges, the judge who both concurred in and
dissented from Ortiz made the argument that the State now makes. See 623 S.W.3d at 812 (Yeary,
J., concurring and dissenting) (“Moreover, depending on the facts, a strong argument might
also be made that it would satisfy the definition of the lesser-included offense described by
Article 37.09(2) . . . in that it would differ[] from the offense charged only in the respect that a
less serious injury . . . to the same person . . . [would] suffice[] to establish its commission[.]
The Court is mistaken wholly to foreclose that contingency.” (internal quotation and citation
omitted) (quoting Tex. Code Crim. Proc. art. 37.09(2))). But the Court’s opinion in Ortiz indeed
“wholly . . . foreclose[s]” Article 37.09(2) as an alternate avenue for submitting simple
bodily-injury assault as a lesser included offense of occlusion assault. See id. As noted above,
Ortiz instructs that the statutorily required occlusion injury is not merely different in degree from
other bodily injuries but is instead different in kind.
To sum up, Ortiz requires that we conclude that the trial court erred by submitting
simple bodily-injury assault. So we now must determine whether that error harmed McCall. See
Ngo, 175 S.W.3d at 743; Harmel, 597 S.W.3d at 956. As the State recognizes, even under the
more stringent “egregious harm” standard were it to apply, an error that allows a jury to convict a
defendant for an uncharged offense that was not a lesser included offense of the one charged
egregiously harms the defendant. Farrakhan v. State, 263 S.W.3d 124, 145 (Tex. App.—Houston
12
[1st Dist.] 2006), aff’d, 247 S.W.3d 720 (Tex. Crim. App. 2008); see Schmuck v. United States,
489 U.S. 705, 717 (1989) (“It is ancient doctrine of both the common law and of our Constitution
that a defendant cannot be held to answer a charge not contained in the indictment brought against
him.”). We therefore sustain McCall’s first appellate issue.
His remedy is a reversal of the judgment of conviction and rendition of an acquittal
for the offense with which he was charged (and for which the jury acquitted him)—occlusion
assault. See Houston v. State, 556 S.W.2d 345, 347 (Tex. Crim. App. 1977); DeLeon v. State,
583 S.W.3d 693, 704 (Tex. App.—Austin 2018, pet. ref’d); Douglas v. State, 915 S.W.2d 166,
169 (Tex. App.—Corpus Christi–Edinburg 1996, no pet.). Simple bodily-injury assault was not
within the indictment, and McCall was acquitted of occlusion assault, so there is no remaining
simple bodily-injury assault for which McCall could be tried on remand from this appeal. See
Houston, 556 S.W.2d at 347 (conviction for purported lesser included offense erroneously
submitted is a nullity and there is no valid indictment for purported lesser included offense where
indictment alleged only purported greater offense); Farrakhan, 263 S.W.3d at 145 (defendant
acquitted of greater offense but convicted of purported lesser included offense may be retried for
purported lesser included offense only upon filing of new charging instrument for that offense
(citing Konchar v. State, 938 S.W.2d 500, 502 (Tex. App.—Tyler 1996, no pet.))); Castillo v.
State, 7 S.W.3d 253, 262 (Tex. App.—Austin 1999, pet. ref’d) (reversing conviction and rendering
judgment of acquittal because jury acquitted appellant of charged offense and lesser included
offense was not supported by sufficient evidence). Because this is McCall’s remedy under his first
issue, we need not reach any other issue that would not provide him with greater relief. See Tex.
R. App. P. 47.1; Ex parte Reyes, 474 S.W.3d 677, 681 (Tex. Crim. App. 2015); Farias v. State,
426 S.W.3d 198, 201 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).
13
EVIDENCE SUFFICIENCY
In circumstances like these, Texas courts note that the defendant, though acquitted
for the indicted offense, may still be retried for the unindicted offense for which the defendant
was convicted. See, e.g., Barnes v. State, 644 S.W.2d 1, 2–3 (Tex. Crim. App. [Panel Op.] 1982);
Trejo v. State, 313 S.W.3d 870, 874 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); Castillo,
7 S.W.3d at 262. Because of this possibility, McCall’s second appellate issue—evidence
sufficiency for simple bodily-injury assault—could provide him with even greater relief than an
acquittal for occlusion assault because it could bar his retrial for simple bodily-injury assault.
See Benavidez v. State, 323 S.W.3d 179, 182–83 (Tex. Crim. App. 2010) (remanding to court of
appeals for evidence-sufficiency review because “a finding of legal insufficiency on appeal would
interpose a jeopardy bar to retrial” for “lesser-but-not-included offense,” for which defendant was
convicted while he was acquitted of charged offense).
We therefore continue to his second issue, in which he contends that the evidence
was “insufficient to support the elements of the lesser included offense.”3 When reviewing for
evidentiary sufficiency, “evidence is considered sufficient to support a conviction when, after
considering all of the evidence in the light most favorable to the prosecution, a reviewing court
concludes that any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt.” Hernandez v. State, 556 S.W.3d 308, 315 (Tex. Crim. App. 2017).4
3
McCall couches his arguments in terms of both legal and factual sufficiency,
but precedent requires that we review only for legal sufficiency. See, e.g., Canada v. State,
547 S.W.3d 4, 12 n.3 (Tex. App.—Austin 2017, no pet.).
4
We cite the Hernandez opinion on original submission, which the Court affirmed on
rehearing, unless otherwise noted. Hernandez v. State, 556 S.W.3d 308, 331 (Tex. Crim. App.
2018) (op. on reh’g) (“We affirm our original opinion . . . , and we reject Hernandez’s arguments
on rehearing for the reasons stated herein.”).
14
The essential elements of the offense are those as defined by the hypothetically correct jury charge
for the case. Id. at 315. A hypothetically correct jury charge reflects the governing law, the
indictment, the State’s burden of proof and theories of liability, and an adequate description of the
offense for the particular case. Id. It includes the statutory elements of the offense as modified by
the indictment. See id. at 312–13; Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012).
The relevant elements here are that (1) McCall intentionally, knowingly, or recklessly (2) caused
bodily injury to the complainant. See Tex. Penal Code § 22.01(a)(1). The indictment did not
modify these elements because it did not allege simple bodily-injury assault.
“Bodily injury” means “physical pain, illness, or any impairment of physical
condition.” Id. § 1.07(a)(8). Any physical pain, however minor, suffices to establish bodily injury.
Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012). The jury may infer that a victim
felt or suffered physical pain because people of common intelligence understand pain and some
of the natural causes of it. See id.; Wawrykow v. State, 866 S.W.2d 96, 99–100 (Tex. App.—
Beaumont 1993, no pet.). A jury could reasonably infer that a complainant suffered bodily injury
when the defendant impeded the complainant’s normal breathing even when the defendant “does
not necessarily prevent breathing altogether.” See Marshall v. State, 479 S.W.3d 840, 845 (Tex.
Crim. App. 2106).
Besides “physical pain,” “bodily injury” also includes “any impairment of physical
condition.” Tex. Penal Code § 1.07(a)(8). Texas courts have interpreted “impairment” to include
the diminished function of a bodily organ. Garcia, 367 S.W.3d at 688; see, e.g., Camarillo v.
State, 82 S.W.3d 529, 532 (Tex. App.—Austin 2002, no pet.) (impairment established when injury
to victim’s nose made breathing difficult); Adams v. State, 969 S.W.2d 106, 111 (Tex. App.—
15
Dallas 1998, no pet.) (impairment established when defendant interfered with victim’s ability to
stand and walk).
Here, the evidence included Sanchez’s testimony that McCall grabbed her throat,
choked her by squeezing her throat, and slammed her head into a truck. This, she testified, caused
her severe pain and a knot to develop immediately on her head. It also caused “[e]verything” to
go “black” for her, forced her to urinate, and stopped her breathing for a time. The evidence also
included testimony about a knot or contusion on her head, observed by her family friend, a sheriff’s
deputy, and an emergency-room physician. Finally, the physician testified about Sanchez’s reports
of lost consciousness, double vision, nausea, a headache, and difficulty swallowing and his view
that she was showing signs of a concussion. Based on this evidence, we conclude that the jury had
before it sufficient evidence to allow any rational trier of fact to find that McCall intentionally,
knowingly, or recklessly caused bodily injury to Sanchez in the form of both physical pain and
impairment. See Tex. Penal Code §§ 1.07(a)(8), 22.01(a)(1); Hernandez, 556 S.W.3d at 315. This
is all that we must measure the evidence against in the hypothetically correct jury charge for this
conviction for simple bodily-injury assault. See Hernandez, 556 S.W.3d at 327 (op. on reh’g);
Ramos v. State, 407 S.W.3d 265, 270 (Tex. Crim. App. 2013); Landrian v. State, 268 S.W.3d 532,
533, 536–37, 540 (Tex. Crim. App. 2008).
McCall argues that our review of the evidence must be much narrower. He says
that the State needed to prove not just any bodily injury but “strangulation or suffocation” because
of the indictment’s allegations and the charge given to the jury. He says that the State “tried a
felony case” whose theory was that Sanchez “was strangled or suffocated in a way that impeded
her blood circulation or blocked her airflow.” He therefore reasons that the acquittal for occlusion
16
assault requires the evidence, to support his conviction for simple bodily-injury assault, to have
shown a strangulation or suffocation that did not impede Sanchez’s breathing or blood circulation.
We reject McCall’s arguments for two reasons. First, we measure the evidence
against the hypothetically correct charge for simple bodily-injury assault, not against the charge
actually given. See Ramjattansingh v. State, 548 S.W.3d 540, 550–52 (Tex. Crim. App. 2018).
This remains true even if the State introduced an “extra burden” for itself in the actual jury charge
or if “the State erroneously included unnecessary surplusage in the indictment.” See id. Thus, it
does not matter to our evidence-sufficiency analysis that the actual jury charge here required the
jury to find that McCall caused Sanchez’s injury either by “applying pressure to [her] throat or
neck” or “blocking [her] nose or mouth” to find him guilty of simple bodily-injury assault.
Second, McCall’s argument that the jury’s not guilty and guilty verdicts required
the particular injury that the State needed to prove to be one that did not include impeding
Sanchez’s breathing or blood circulation is a complaint about “inconsistent verdicts.” See, e.g.,
Hernandez, 556 S.W.3d at 331 (op. on reh’g). When measuring the sufficiency of the evidence,
each count must stand or fall on its own, and when analyzing the sufficiency of the evidence of a
particular conviction, we consider all of the evidence admitted at trial. Id. If a defendant is
acquitted of one count and convicted of another based on the same evidence in a single trial, the
defendant cannot rely on the inconsistent verdicts to attack the conviction. Id. We do not speculate
about why a jury returned the verdicts that it did. Id. at 321. When a multi-count verdict appears
inconsistent, our inquiry is limited to determining whether the evidence is legally sufficient to
support the count on which a conviction is returned. Id. So long as the evidence supports
McCall’s conviction for simple bodily-injury assault—which it does—we ordinarily must uphold
the conviction. See id. This is why we may rely on the evidence of Sanchez’s breathing or
17
circulation’s having been impeded despite the acquittal on occlusion assault. See, e.g., Jackson v.
State, 3 S.W.3d 58, 61–62 (Tex. App.—Dallas 1999, no pet.) (rejecting argument that court could
not consider evidence of entry when reviewing sufficiency of evidence to support conviction for
lesser included offense of criminal trespass despite defendant’s acquittal in same trial on greater
offense of burglary).
We therefore hold that the evidence was sufficient to support the jury’s verdict
that McCall was guilty of the Class A misdemeanor of simple bodily-injury assault under
Section 22.01(a)(1). There is thus no legal-insufficiency double-jeopardy bar to retrying McCall
for simple bodily-injury assault. See Benavidez, 323 S.W.3d at 182–83. We overrule McCall’s
second issue and, as noted above, need not reach his third or fourth.
CONCLUSION
We reverse the trial court’s judgment of conviction on the Class A misdemeanor
and render a judgment of acquittal on the charged felony offense of occlusion assault.
__________________________________________
Chari L. Kelly, Justice
Before Justices Goodwin, Baker, and Kelly
Concurring Opinion by Justice Baker
Reversed and Acquittal Rendered on Motion for Rehearing
Filed: September 22, 2021
Publish
18