McCall v. State

635 S.W.3d 261

Blair Beck MCCALL, Appellant

v.The STATE of Texas, Appellee

NO. 03-19-00027-CR

Court of Appeals of Texas, Austin.

Filed: September 22, 2021

Discretionary Review Refused December 8, 2021

Wesley H. Mau, Jennifer Feldman, Assistant Criminal District Attorney, 712 South Stagecoach Trail, Ste. 2057, San Marcos, TX 78666, for Appellee.

Tom C. McCall, David B. McCall, Kindra Ann Johnson, Kara L. O'Shaughnessy, Gray Becker, PC, 900 West Avenue, Austin, TX 78701-2210, for Appellant.

Before Justices Goodwin, Baker, and Kelly

OPINION

Chari L. Kelly, Justice

We reinstate this appeal from abatement; grant appellant's motion for rehearing; withdraw our opinion and judgment issued January 8, 2021; and substitute the following opinion in place of the earlier one.

The State indicted Blair Beck McCall for the felony offense of assault by causing bodily injury to the complainant, a member of McCall's household or with whom he had a dating relationship, "by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood ... by applying pressure to the throat or neck and blocking the nose or mouth of" the complainant. See Tex. Penal Code § 22.01(a)(1), (b)(2)(B). This offense is called "occlusion assault." See Ortiz v. State , 623 S.W.3d 804, 805 (Tex. Crim. App. 2021). The trial court's charge submitted occlusion assault to a jury and, on the State's request and over McCall's objection, a misdemeanor offense that the charge termed "the lesser included offense of Assault – Bodily Injury Family Violence." The jury acquitted McCall of occlusion assault but found him guilty of the misdemeanor offense. The trial court then assessed punishment at one year in the county jail, probated for 18 months, with a $2,500 fine and entered a conforming judgment, noting an "affirmative finding of family violence." See Tex. Fam. Code § 71.004 ; Tex. Code Crim. Proc. art. 42.013.

In four issues, McCall contends that (1) the trial court erred by submitting the misdemeanor offense because it is not a lesser included offense of occlusion assault, (2) the evidence was insufficient to support the guilty verdict on the misdemeanor offense, (3) there was a material variance between the indictment and the proof at trial on bodily injury, and (4) the jury charge contained an improper comment on the weight of the evidence. We sustain McCall's first issue, reverse the judgment of conviction, and render a judgment of acquittal for occlusion assault.

BACKGROUND

The State indicted McCall for one count—occlusion assault. See Tex. Penal Code § 22.01(a)(1), (b)(2)(B). The indictment tracked the statutory language, alleging:

On or about the 5th day of July 2015, in Hays County, Texas, the Defendant, Blair McCall, did then and there intentionally, knowingly, or recklessly cause bodily injury to Vivian Sanchez, a member of the defendant's family or member of the defendant's household or person with whom the defendant has or has had a dating relationship, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of Vivian Sanchez by applying pressure to the throat or neck and blocking the nose or mouth of Vivian Sanchez.

At trial, the State, after it rested and closed, asked the court to submit the Class A misdemeanor offense of "lesser-included assault, bodily injury, family violence" to the jury because the State believed that the evidence caused "strangulation [to] come into question." At the charge conference, McCall objected to submitting the misdemeanor offense: "I am going to object to the lesser-included, but I think the evidence has been raised. ... So I suspect that'll be the Court's ruling." The court overruled the objection and submitted both occlusion assault and the State-requested misdemeanor assault. The jury acquitted on occlusion assault but convicted on the misdemeanor. The court entered judgment on the guilty verdict, and McCall appealed.

After we issued our now-withdrawn January 8, 2021 opinion in this appeal, McCall moved for rehearing, and while his motion was pending, the Court of Criminal Appeals issued its decision in Ortiz . In response to Ortiz , we asked the parties for supplemental briefing about what effect, if any, Ortiz 's analysis had on our disposition of the motion for rehearing and of this appeal. The parties have now filed their supplemental briefs and participated in an oral argument.

STANDARD OF REVIEW AND APPLICABLE LAW

To review a claim of charge error, we first determine whether the claimed error exists in the charge. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) ; Harmel v. State , 597 S.W.3d 943, 956 (Tex. App.—Austin 2020, no pet.). "[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012) ; accord Middleton v. State , 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If there is error, we evaluate the harm caused by the error. Ngo , 175 S.W.3d at 743 ; Harmel , 597 S.W.3d at 956. The amount of harm needed for a reversal depends on whether the defendant preserved a complaint about the error. Swearingen v. State , 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref'd). If not preserved, we may reverse only if the error caused "egregious harm." Neal v. State , 256 S.W.3d 264, 278 (Tex. Crim. App. 2008). But if preserved, we reverse when we find merely "some harm" to the defendant's rights. Ngo , 175 S.W.3d at 743.

Additionally, determining whether submission of a lesser included offense was error usually requires a two-step inquiry. See Hall v. State , 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). The first step, a question of law, is determining whether an offense is a lesser included offense of the charged offense. Id. This step "does not depend on the evidence to be produced at the trial" but "must be[ ] capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense." Id. at 535–36 ; accord State v. Meru , 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). We compare the greater offense's statutory elements as modified by any descriptive averments in the indictment with only the statutory elements of the lesser offense. See Meru , 414 S.W.3d at 162–63 ; Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh'g) (per curiam).¹

Governing standards forbid us from considering any evidence in step one. See Ex parte Watson , 306 S.W.3d at 263 (citing and applying Hall , 225 S.W.3d at 526, 531, 535–36 ). We look only to statutory elements and the indictment, nothing else: " ‘we do not consider the evidence that [would have been] presented at trial’ in the first step ..."; "[i]nstead, we consider only the statutory elements of [the offense] as [those elements] were modified by the particular allegations in the indictment." Id. at 263 (second and third alterations added, first and fourth alterations in original) (quoting Hall , 225 S.W.3d at 536 ); accord id. at 272–73 (op. on reh'g).

Based on our review of statutory elements and the indictment, an offense is a lesser included offense of the charged offense when it is within the proof necessary to establish the charged offense. See Tex. Code Crim. Proc. art. 37.09(1) ; Bullock v. State , 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). An offense is within the proof necessary to establish the charged offense if the indictment either (1) alleges all the elements of the lesser included offense or (2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for providing notice) from which all the elements of the lesser included offense may be deduced. Meru , 414 S.W.3d at 162. If a descriptive averment in the indictment is identical to an element of the lesser offense or if an element of the lesser offense may be deduced from a descriptive averment in the indictment, then the respective element of the lesser offense is within the allegations of the greater offense. Ex parte Watson , 306 S.W.3d at 273 (op. on reh'g).

The second step of the inquiry is analyzing whether the evidence raised the lesser included offense. See Hall , 225 S.W.3d at 536. But when the State requests submission of a lesser included offense, as in this case, the State is entitled to the submission based only on the first step. See Grey v. State , 298 S.W.3d 644, 645 (Tex. Crim. App. 2009) ; Sifuentes v. State , 494 S.W.3d 806, 818–19 (Tex. App—Houston [14th Dist.] 2016, no pet.) ; Satchell v. State , 321 S.W.3d 127, 136 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd).

OCCLUSION ASSAULT AND SIMPLE BODILY-INJURY ASSAULT

The indictment here charged McCall with

intentionally, knowingly, or recklessly caus[ing] bodily injury to Vivian Sanchez, a member of the defendant's family or member of the defendant's household or person with whom the defendant has or has had a dating relationship, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of Vivian Sanchez by applying pressure to the throat or neck and blocking the nose or mouth of Vivian Sanchez.

The elements of occlusion assault as charged by the indictment are therefore

(1) that the defendant intentionally, knowingly, or recklessly

(2) caused bodily injury to the complainant

(3) by impeding her normal breathing or circulation of blood by applying pressure to her throat or neck and blocking her nose or mouth and

(4) that the complainant either was a member of defendant's family, was a member of his household, or was or had been in a dating relationship with him.

See Tex. Penal Code § 22.01(a)(1), (b)(2)(B) ; Philmon v. State , 609 S.W.3d 532, 536 (Tex. Crim. App. 2020) (listing similar elements as modified by that case's indictment). Aside from naming the complainant, this indictment tracked the applicable statutory language...