| Dockets: PD-1061-19, PD-1362-18 Opinion Date: March 10, 2021 Judge: Keel Areas of Law: Constitutional Law, Criminal Law |
| The appellants in consolidated cases were charged with occlusion assault under Texas Penal Code Section 22.01(b)(2)(B). At their respective trials, they each requested an instruction on bodily-injury assault as a lesser-included offense of occlusion. Their requests were denied, and they were convicted of occlusion assault. On appeal their cases diverged: The court of appeals in Orlando Ortiz's case held the trial court erred in refusing to instruct the jury on bodily-injury assault, but Dewey Barrett's held that there was no error in refusing the instruction. The Texas Court of Criminal Appeals granted review to decide whether appellants were entitled to an instruction on bodily-injury assault as a lesser included of occlusion. The Court also granted review in Barrett's case to consider whether Irving v. Texas, 176 S.W.3d 842 (Tex. Crim. App. 2005), should have been overruled, and whether multiple injuries from a single attack constituted separate prosecutable assaults. The Court held that bodily-injury assault was 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 exclusive of other bodily injuries. Consequently, the judgment of the court of appeals in Ortiz was reversed, and the judgment in Barrett was affirmed. Furthermore, the Court held that overruling Irving would have made no difference in Barrett’s case because Irving was inapplicable here. And because the Court could resolve Barrett without addressing whether multiple injuries inflicted in a single attack could be separately prosecuted, it did not reach that ground for review. |
