Price, Eric Ray

457 S.W.3d 437, 2015 Tex. Crim. App. LEXIS 389, 2015 WL 1743388
CourtCourt of Criminal Appeals of Texas
DecidedApril 15, 2015
DocketNO. PD-0383-14
StatusPublished
Cited by271 cases

This text of 457 S.W.3d 437 (Price, Eric Ray) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price, Eric Ray, 457 S.W.3d 437, 2015 Tex. Crim. App. LEXIS 389, 2015 WL 1743388 (Tex. 2015).

Opinions

OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which KELLER, P.J., and KEASLER, HERVEY, ALCALÁ, RICHARDSON, and NEWELL, JJ., joined.

A jury convicted appellant of third-degree-felony family-violence assault.1 Appellant pled true to the enhancement and habitual allegations, and the trial court sentenced him to fifty years’ imprisonment. Appellant appealed, asserting, among other grounds, that the offense of third-degree-felony family-violence assault is both result-oriented and conduct-oriented and that the trial court erred by failing to include language tying the culpable mental state to the nature of the conduct. The court of appeals affirmed the judgment of the trial court.

We granted review of only one of appellant’s grounds for appeal: “Whether assault by occlusion is both a result-oriented offense and a conduct-oriented offense.” Appellant asserts that the language “by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth” describes an element of the offense and that this element describes the nature of the conduct. Therefore, appellant asserts, the trial court erred in failing to tailor the charge to connect the culpable mental state to the nature of the conduct. Because domestic violence is a result-of-conduct offense only, we affirm the judgment of the court of appeals.

Facts

Law-enforcement officials received a report of an assault involving family violence. The responding officer found the victim with blood on her face, mouth, and clothing. The blood appeared to come from injuries around her mouth and lips. The responding EMS paramedic observed a laceration on the victim’s lip and reported that the victim told him that her boyfriend had struck and “choked”2 her. At the [440]*440hospital, the victim stated that she had known appellant for twelve years, they had lived together during their relationship, and she would categorize their relationship as a “dating relationship.” The nurse at the hospital testified that the victim had red marks on her neck that were beginning to bruise, that she told the nurse that her boyfriend, appellant, had caused the injuries, and that he had strangled her to the point of unconsciousness several times. Appellant was arrested for third-degree-felony family-violence assault.

The Court of Appeals’s Decision

Relying on one of its own unpublished cases, the court of appeals held that “assault by occlusion”3 is a result-of-conduct offense only and that including nature-of-conduct language would have been error. It concluded that the trial court in this case properly declined to include an instruction on nature of conduct. Price v. State, No. 10-13-00168-CR, 2014 WL 813808, at *2, 2014 Tex.App. LEXIS 2268, at *5 (Tex.App.-Waco Feb. 27, 2014) (mem. op., not designated for publication) (citing Morgan v. State, Nos. 10-10-00367-CR & 10-10-00371-CR, 2011 WL 4837721, at *4, 2011 Tex.App. LEXIS 8133, at * *10-11 (Tex.App.-Waco Oct. 12, 2011, no pet.) (mem. op., not designated for publication)).4

Standard of Review

Our first inquiry is whether the jury charge contained error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh’g). If error exists, we then analyze the harm resulting from the error. Id. If the error was preserved by objection, any error that is not harmless will constitute reversible error. Id. If the error was not preserved by objection, the error will not result in reversal of the conviction without a showing of egregious harm. Id. Egregious harm is harm that deprives a defendant of a “fair and impartial trial.” Id.

Appellant did not object to the trial court’s failure to include nature-of-conduct language in the jury charge, thus if we find that the jury charge was erroneous, we will consider the effect of the error under the standard of egregious harm.

Analysis

Third-degree-felony family-violence assault by strangulation,5 as plead in this case, is defined in two related sections in Texas Penal Code Chapter 22, Assaultive Offenses. In the first part, section 22.01(a)(1), assault resulting in bodily injury, “[a] person commits an offense if the person: ... intentionally, knowingly, or recklessly causes bodily injury to another, [441]*441including the person’s spouse.” The base level of this offense is a Class A misdemeanor. Id. § 22.01(b). However, the second part, section 22.01(b)(2)(B), raises the offense to a third-degree felony if the assault is committed against:

(b)(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: (A) ... (B) 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[.]”

Id. § 22.01(b)(2)(B).6

Conduct and the Jury Charge

Section 6.03 of the Texas Penal Code sets out: four culpable mental states — intentionally, knowingly, recklessly, and criminally negligently; two possible conduct elements — nature of the conduct and result of the conduct; and the effect of the circumstances surrounding the conduct. In a jury charge, the language in regard to the culpable mental state must be tailored to the conduct elements of the offense. When “specific acts are criminalized because of their very nature, a culpable mental state must apply to committing the act itself.” McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989). “On the other hand, unspecified conduct that is criminalized because of its result requires culpability as to that result.” Id. A trial court errs when it fails to limit the language in regard to the applicable culpable mental states to the appropriate conduct element. See Cook v. State, 884 5.W.2d 485, 491 (Tex.Crim.App.1994) (“Intentional murder ... is a ‘result of conduct’ offense, therefore, the trial judge erred in not limiting the culpable mental states to the result of appellant’s conduct.”).

We use the gravamen of the offense to decide which conduct elements should be included in the culpable mental-state language. The gravamen of the offense is: the “gist; essence; [or the] substance” of the offense (Ballentine’s Law DICTIONARY 534 (3rd ed.1969)); “[t]he substantial point or essence of a claim, grievance, or complaint” (Black’s Law Dictionary 817 (9th ed.2009)); “the part of an accusation that weighs most heavily against the accused; the substantial part of a charge or accusation.” (Webster’s Encyclopedic Unabridged Dictionary of the English Language 617 (1989)).

If the gravamen of an offense is the result of conduct, the jury charge on culpable mental state should be tailored to the result of conduct and likewise for nature-of-conduct offenses. See, e.g., Alvarado v. State, 704 S.W.2d 36

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Bluebook (online)
457 S.W.3d 437, 2015 Tex. Crim. App. LEXIS 389, 2015 WL 1743388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-eric-ray-texcrimapp-2015.