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ORTIZ, ORLANDO

PD-1061-19 11/06/2019

“When a defendant is charged with ‘assault by occlusion’ pursuant to Tex. Penal Code § 22.01(b)(2)(B), does the denial of occlusion and admission to causing different injuries entitle him to an instruction on simple assault?”

Ortiz was charged with assault under Tex. Penal Code § 22.01(b)(2)(B), which makes intentionally, knowingly, or recklessly causing bodily injury a third-degree felony if the defendant and victim have a family or dating relationship and “the offense is committed by intentionally, knowingly, or recklessly 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.” He admitted causing various injuries during an assaultive episode with the victim but denied impeding her breathing or circulation. Ortiz’s request for an instruction on family violence assault was denied, and he was convicted as charged.

The court of appeals reversed. It held that “assault by occlusion” is an assault with two additional requirements—relationship and occlusion. “Accordingly, simple assault is a lesser included offense because it is included within the proof necessary to establish assault family violence by strangulation.” See Tex. Code Crim. Proc. art. 37.09(1) (“An offense is a lesser included offense if . . . it is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]”).

The State argues that Section 22.01(b)(2)(B) is a statutory manner and means that, once pled, cannot be avoided by either party. It relies on Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015), and Marshall v. State, 479 S.W.3d 840 (Tex. Crim. App. 2016), both of which say that impeding breathing or circulation is the required bodily injury in these cases. Even if it is not, the State’s case from indictment to argument was about a specific, statutorily defined injury and Ortiz had no right to make the case about some other assaultive conduct.

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