Background
Patrick Anthony Currie was charged with assault family violence by impeding breath or circulation. The superseding indictment also alleged two prior felony convictions for habitual-offender enhancement purposes. At trial, Caitlin Mayberry testified that she and Currie were in a dating relationship and that Currie impeded her breathing by placing his forearm around her neck.
Currie represented himself and requested a jury instruction on misdemeanor assault family violence if the State failed to prove that he impeded Mayberry’s breathing. The final charge did not include that instruction. The jury found Currie guilty, Currie pleaded true to both enhancement allegations, and the trial court sentenced him to fifty years in prison. On appeal, his sole contention was that the trial court improperly denied the requested lesser-included-offense instruction.
The Court’s Holding
The Thirteenth Court of Appeals affirmed. Applying the Texas Court of Criminal Appeals’ decision in Ortiz v. State, the court held that bodily-injury assault is not a lesser-included offense of assault by impeding breath or circulation when the disputed element is the victim’s injury. Occlusion assault requires proof of the specifically defined injury of impeded breathing or circulation, while bodily-injury assault based on a different injury requires proof of different, additional facts.
Because Currie challenged whether Mayberry suffered the statutorily specified impeding injury, misdemeanor assault family violence was not included within the proof necessary to establish the charged felony. The requested instruction therefore failed the first, purely legal prong of the lesser-included-offense test. The court did not reach whether the evidence would have allowed a rational jury to convict Currie only of the misdemeanor offense and concluded that the trial court committed no charge error.
Key Takeaways
- Misdemeanor bodily-injury assault is not automatically a lesser-included offense of assault family violence by impeding breath or circulation.
- When the disputed issue is whether the victim suffered an impeding injury, proof of a different bodily injury does not satisfy the lesser-included-offense test.
- A lesser-included instruction may be available in an occlusion-assault case under different circumstances, such as when the qualifying relationship is disputed, but those circumstances were not present here.
Why It Matters
The decision reinforces that Texas courts compare the facts legally necessary to prove each offense, rather than treating every less serious form of assault as a lesser-included offense. A jury’s ability to disbelieve evidence of impeded breathing does not itself create a rational misdemeanor alternative based on a different injury.
For practitioners, the particular element in dispute matters. Challenges directed at the qualifying relationship may support a misdemeanor-assault instruction in some cases, but a challenge directed solely at the statutorily specified occlusion injury generally will not.