New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
1. “Did the court of appeals err in holding that misdemeanor assault by striking in the face was not a lesser-included offense of family violence assault by impeding breath or circulation?”
2. “Do multiple physical injuries inflicted in a single attack constitute separately actionable crimes of assault or are they part of a single assault?”
3. “Should Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005), be overruled in light of other developments in our caselaw?”
Barrett was convicted of assault by impeding breath or circulation under Tex. Penal Code § 22.01(b)(2)(B), a third-degree felony. Both the victim and a witness told officers that Barrett choked the victim. At trial, however, the victim testified that he punched her and that she made the choking allegation up. Barrett requested but was denied an instruction on Class A assault for punching her. He was convicted as charged.
The court of appeals affirmed. It held that striking the victim’s face is “not established by proof of the same or less than all of the facts required to establish assault by impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth,” as required by section 22.01(b)(2)(B). See Tex. Code Crim. Proc. art. 37.09(1). It relied upon Irving v. State for the proposition that the requested lesser must be within the facts of the conduct charged, including the factual allegations.
The Court of Criminal Appeals refused Barrett’s pro se petition but granted review on its own motion. Beyond the “unit of prosecution” issue raised by the second ground, the Court appears to be concerned with the effect that the evolution of variance law might play in the analysis. As it stands, the State is frequently permitted to retain a conviction despite proving a different manner of assault than was alleged. These issues were recently addressed in Hernandez v. State, 556 S.W.3d 308 (Tex. Crim. App. 2017), both on original submission and rehearing. The extent to which this rubric applies to lesser-included offenses is an open question.