01
� 22.01. Assault
(3) intentionally or knowingly causes physical contact with another when the
person knows or should reasonably beli
V.T.C.A., Penal Code � 15.02
(a) A person commits criminal conspiracy if, with intent that a felony be
committed:
(1) he agrees with one or more persons that they or one or more of them engage in
conduct that would constitute the offense; and
(2) he or one or more of them performs an overt act in pursuance of the agreement.
(2) one or more of the coconspirators has been acquitted, so long as two or more
coconspirators have not been acquitted;
(3) one or more of the coconspirators has not been prosecuted or convicted, has
been convicted of a different offense, or is immune from prosecution;
(4) the actor belongs to a class of persons that by definition of the object
offense is legally incapable of committing the object offense in an individual
capacity; or
(d) An offense under this section is one category lower than the most serious
felony that is the object of the conspiracy, and if the most serious felony that
is the object of the conspiracy is a state jail felony, the offense is a Class A
misdemeanor.
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994.
Acts 1993, 73rd Leg., ch. 900, � 1.01, in subsec. (d), substituted "state jail
felony" for "felony of the third degree".
Prior Laws:
CROSS REFERENCES
Punishment,
State Fire Marshal, duties and authority, see V.T.C.A., Government Code ��
417.007, 417.008.
LIBRARY REFERENCES
Conspiracy 23 to 41.
C.J.S. Conspiracy �� 34 to 45, 47, 49, 52 to 53, 55 to 56, 57(1), 60, 62 to 63,
65, 73 to 78.
C.J.S. RICO (Racketeer Influenced and Corrupt Organizations) � 12.
RESEARCH REFERENCES
9 ALR 3rd 462, Comment Note.--When Criminal Case Becomes Moot So as to Preclude
Review of or Attack on Conviction or Sentence.
Encyclopedias
TX Jur. 3d Criminal Law � 4200, Excessive Fines and Cruel or Unusual Punishment.
Dix and Dawson, 40 Tex. Prac. Series � 3.27, Special Rules -- Criminal Conspiracy
and Organized Criminal Activity.
Drug conspiracy, necessity of overt act, see U.S. v. Shabani, 1994, 115 S.Ct. 382,
513 U.S. 10, 130 L.Ed.2d 225, on remand 48 F.3d 401, as amended.
Termination of conspiracy, government defeat of conspiracy's purpose, knowledge of
conspirators, see U.S. v. Jimenez Recio, 2003, 123 S.Ct. 819, 537 U.S. 270, 154
L.Ed.2d 744, on remand 371 F.3d 1093.
NOTES OF DECISIONS
In general 2
25
23
Agreement 5-6, 34
Agreement - In general 5
Agreement - Intent 6
Argument of counsel 38
information or complaint 17
Instructions 40-44
Instructions - In general 40
Intent, agreement 6
Liability 11, 12
Liability - In general 11
Parties 13, 14
Parties - In general 13
Parties - Spouses 14
Questions of law 39
Spouses, parties 14
23
Termination of conspiracy 9
Validity 1
Section 71.02 governing engaging in organized criminal activity and this section
governing criminal conspiracy were not void on ground that each allowed for a
conviction for the same crime but had different penalties, because this section
did not apply to "offenses defined by other laws." Clayton v. State (Cr.App. 1983)
652 S.W.2d 950, certiorari denied 104 S.Ct. 719, 464 U.S. 1046, 79 L.Ed.2d 181.
Conspiracy 28(1)
Vernon's Ann.P.C. art. 1626 (repealed), which fixed punishment for conspiracy, did
not violate Const. art. 1, � 13, providing that every person shall have remedy by
due course of law nor Const. art. 1, � 3, forbidding granting of exclusive
privilege and prescribing equal rights. Garza v. State (Cr.App. 1932) 122
Tex.Crim. 413, 55 S.W.2d 1042.
2. In general
After an agreement to commit burglary, the owner of the house, for purposes of
detection, may connive at the entry without relieving the conspirators from
liability. Johnson v. State (1878) 3 Tex.Crim. 590.
The crime of conspiracy is complete when unlawful agreement is entered into. Smith
v. State (Cr.App.1963) 363 S.W.2d 277; Johnson v. State (1878) 3 Tex.Crim. 590;
Wilson v. State (1934) 127 Tex.Crim. 152, 74 S.W.2d 1020.
Elements of offense of criminal conspiracy are that a person with intent to commit
a felony agrees with one or more persons that they or one or more of them will
engage in conduct that would constitute the offense, and that he or one or more of
them performs overt act in pursuance of agreement. Carrion v. State (App. 3
Dist.1990) 802 S.W.2d 83; Walker v. State (App. 5 Dist.1992) 828 S.W.2d 485,
petition for discretionary review filed.
The conspiracy to steal is complete at the time it is entered into, without any
reference to subsequent theft. Bailey v. State (Cr.App. 1900) 42 Tex.Crim. 289, 59
S.W. 900.
All elements of completed offense need not be proven in conspiracy case. Skidmore
v. State (Cr.App. 1975) 530 S.W.2d 316. Conspiracy 43(12)
5. Agreement--In general
Proof that the parties actually agreed in terms to a certain design and to pursue
it by common means, was not essential to the establishment of the crime of
conspiracy. Smith v. State (App. 1886) 17 S.W. 552.
To convict under indictment for conspiracy to burn house of named person, state
must establish that defendant and his co-conspirators entered into positive
agreement to burn such house. Wilson v. State (Cr.App. 1934) 127 Tex.Crim. 152, 74
S.W.2d 1020. Conspiracy 43(12)
Agreement between coconspirators to commit crime is not any less agreement simply
because accomplishment of criminal objective is dependent upon fulfillment of
condition. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for
discretionary review refused. Conspiracy 24(1)
The agreement may be entered into, and the offense be completed, although the
original purpose of meeting and consultation was lawful. Lowery v. State (1867) 30
Tex. 402.
A person who persuaded others to enter into a conspiracy to commit crime was
guilty though he did not intend to help commit the crime. Dever v. State (Cr.App.
1895) 37 Tex.Crim. 396, 30 S.W. 1071.
Where there is a conspiracy to kill, mere presence at scene of killing, under some
circumstances, will be sufficient act of encouragement. Leslie v. State (Cr.App.
1900) 42 Tex.Crim. 65, 57 S.W. 659.
Person may be guilty of criminal conspiracy by doing nothing more than agreeing to
participate in conspiracy, so long as another coconspirator does some overt act in
furtherance of conspiracy. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485,
petition for discretionary review refused. Conspiracy 24(1); Conspiracy 27
On the trial of an indictment for conspiracy to commit burglary, which was made a
substantive offense by Vernon's Ann.P.C. repealed arts. 800 to 804, though the
burglary was not committed, a conviction of burglary would not bar a prosecution
for conspiracy to commit, as the two offenses could be carved out of the same
transaction. Whitford v. State (App. 1887) 6 S.W. 537, 5 Am.St.Rep. 896.
Conviction of theft was not a bar to prosecution for conspiracy to steal. Bailey
v. State (Cr.App. 1900) 42 Tex.Crim. 289, 59 S.W. 900.
The offense of conspiracy to commit murder having been complete at the time of
entering into the conspiracy, it was an independent offense for which the parties
could be prosecuted and punished though the offense contemplated was not
consummated. King v. State (Cr.App. 1919) 86 Tex.Crim. 407, 216 S.W. 1091.
Conspiracy 27
Murder as party or accomplice is not "same offense" for double jeopardy purposes
as conspiring to murder or engaging in organized criminal activity; offense of
murder requires proof of death, and conspiring and engaging in organized criminal
activity require proof of agreement not required by offense of murder as party. Ex
parte Brosky (App. 2 Dist. 1993) 863 S.W.2d 783, rehearing overruled. Double
Jeopardy 151(1)
9. Termination of conspiracy
A conspiracy is not finally terminated until everything has been done that was
contemplated to be done by the conspirators. Robins v. State (1938) 134 Tex.Crim.
617, 117 S.W.2d 82; Schoenberg v. State (App.1981) 624 S.W.2d 808, review refused.
The fact that a person, after entering into an agreement with another to commit a
burglary, withdrew from the transaction, did not prevent his conviction for the
conspiracy. Dill v. State (Cr.App. 1895) 35 Tex.Crim. 240, 33 S.W. 126, 60
Am.St.Rep. 37. Conspiracy 40
When one entered into a conspiracy to commit a crime, even though he withdrew
before the crime had been committed, he could be convicted for entering into the
conspiracy. Dill v. State (Cr.App. 1895) 35 Tex.Crim. 240, 33 S.W. 126, 60
Am.St.Rep. 37.
Where a crime committed is not in any way connected with a conspiracy, but is the
independent act of one of the conspirators, though done while he was engaged in
the common purpose, the others are not legally responsible therefor, but if the
crime is in furtherance of the common purpose, and is such an offense as might
have been and should have been contemplated would result from the execution of the
conspiracy, and it was so executed, then all engaged in the unlawful purpose are
equally guilty, though at the time they may have been engaged in some other part
of the common purpose. Serrato v. State (Cr.App. 1914) 74 Tex.Crim. 413, 171 S.W.
1133.
Where the state claimed a killing was the result of a conspiracy, accused cannot
be convicted for the acts of his co-conspirators, unless he conspired to take
deceased's life or conspired to do an unlawful act and the killing was the result
of an attempt to perpetrate it. Cline v. State (Cr.App. 1915) 77 Tex.Crim. 281,
178 S.W. 520. Homicide 612
The acts of all parties to a conspiracy in furthering it are the acts of all
parties to it. Glenn H. McCarthy, Inc. v. Knox, 1945, 186 S.W.2d 832, error
refused. Conspiracy 13
It makes no difference at what time any one entered into conspiracy since every
one who does enter into a common purpose or design is generally deemed in law a
party to every act which has before been done by others, and to every act which
may afterwards be done by any of others, in furtherance of such common design.
Viera v. State (Cr.App. 1951) 156 Tex.Crim. 631, 245 S.W.2d 257. Conspiracy 41
When a conspiracy to commit an unlawful act exists, and in the execution of the
conspiracy one of the persons commits a homicide, all persons engaged in the
conspiracy are guilty of murder. Mitchell v. State (1896) 36 Tex.Crim. 278, 33
S.W. 367, 36 S.W. 456; Isaacs v. State (1897) 36 Tex.Crim. 505, 38 S.W. 40.
When two or more persons agree to commit an offense and from the nature of the
offense it is reasonably probable that death will result to the victim, and death
does result, all the parties connected with the conspiracy would be responsible
for the homicide. Blain v. State (App. 1892) 18 S.W. 862.
If defendant and another combine to beat a person, and in the attempt to do so the
co-conspirator kill such other person, both would be guilty of murder. Mitchell v.
State (Cr.App. 1895) 36 Tex.Crim. 278, 33 S.W. 367, reversed 36 Tex.Crim. 278, 36
S.W. 456.
Defendant having helped to set in motion that which resulted in another's death
was guilty of murder; he was an accomplice whether he instigated the act himself
or his co-conspirators instigated it. Isaacs v. State (Cr.App. 1896) 36 Tex.Crim.
505, 38 S.W. 40.
A conspirator to whip one person would not be guilty, where one of the
conspirators killed another person upon an independent motive of his own, and
although defendant was present when one was killed by his fellow conspirator, yet,
if he did not know of the conspirator's intent to commit an unlawful act which
might lead to the killing, or, if present, did not aid such conspirator, he would
be guilty of no offense, and no subsequent ratification of a murder by a co-
conspirator on his own independent motive would make defendant liable as a
principal, if not liable as such at the time of its commission. Buckley v. State
(Cr.App. 1915) 78 Tex.Crim. 378, 181 S.W. 729.
When the thing done is an independent act of one of conspirators, though done
while he was engaged in common purpose, the others are not legally responsible
therefor, but if the crime is in furtherance of the common purpose and is such an
offense as should have been contemplated would result from the execution of a
planned burglary then all engaged in the unlawful purpose are equally guilty.
Garcia v. State (Cr.App. 1948) 151 Tex.Crim. 593, 210 S.W.2d 574. Homicide 612
Where several people are acting together in pursuit of an unlawful act, each is
liable for unplanned and unintended collateral crimes committed by other
principals if the crimes are the foreseeable, ordinary and probable consequences
of preparation or execution of the unlawful act. Thompson v. State (Cr.App. 1974)
514 S.W.2d 275. Criminal Law 59(4)
Where a party was charged as an accomplice, under the statute, with the commission
of a felony, the case assumed the nature to some extent of a conspiracy, though
the statute made a distinction between a conspiracy as an offense and an offense
committed by a principal instigated by an accomplice; a conspiracy being complete
when a positive agreement had been made between the parties to commit a felony,
while to be an accomplice the crime must have been actually committed by the
principal. Cooper v. State (Cr.App. 1913) 69 Tex.Crim. 405, 154 S.W. 989. Criminal
Law 59(1)
Where one was a party to conspiracy to commit theft and was not otherwise
connected with the taking of the property, and received the property after it was
stolen, he did not become a "principal" to the theft unless at the time he
received the property he did so under an agreement to dispose of it and divide the
proceeds or benefits among the other conspirators. Mershon v. State (Cr.App. 1941)
142 Tex.Crim. 575, 155 S.W.2d 372. Larceny 27
Rev.P.C.1895, arts. 953 to 960 made no exception in favor of the wife. Husband and
wife could conspire together without the intervention of a third person to commit
a murder and if either was being tried for the consummated offense, the doctrine
of conspiracy, so far as the rules were concerned, was applicable under our
system. Smith v. State (Cr.App. 1905) 48 Tex.Crim. 233, 89 S.W. 817. Criminal Law
423(7)
A husband who conspired with his wife to obtain money from complaining witness by
false promises to treble his money was guilty of "conspiracy" since under the
Spanish civil law relating to marriage, as it applied in Texas, the common-law
fiction of a wife losing her identity in that of her husband was nonexistent.
Marks v. State (Cr.App. 1942) 144 Tex.Crim. 509, 164 S.W.2d 690. Husband And Wife
107
Under the Spanish civil law relating to marriage as it was established in Texas,
the fiction of a wife losing her identity in that of her husband no longer
existed, and the wife could not only enter into a conspiracy with the husband in
the commission of a crime, but could be held for the substantive crime of a
conspiracy with her spouse, notwithstanding Vernon's Ann.P.C. art. 4 (repealed)
and Vernon's Ann.C.C.P.1925, art. 24 (see, now, art. 1.27), providing that when a
statutory rule was not found governing any transaction, then the rules of the
common law had to be applied. Marks v. State (Cr.App. 1942) 144 Tex.Crim. 509, 164
S.W.2d 690. Husband And Wife 107
Indictment alleging in one count that defendant and another did unlawfully
conspire to unlawfully take and steal money and property from city of Houston,
that they further conspired to take and steal money, funds and checks from various
unknown persons, and that they further conspired to accept and agree to accept
bribes, alleged single conspiracy to commit a felony and under indictment it was
not necessary that evidence establish that conspiracy entered into extended to all
of the intended offenses, and when State abandoned allegation that intended
offense was felony theft from unknown persons, verdict of guilty was all that was
required. Nisbet v. State (Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142,
certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1524. Conspiracy 43(12);
Conspiracy 48.3; Indictment And Information 125(5.5)
Even if indictment for conspiracy to deliver cocaine did not provide sufficient
notice, defendant failed to point out what defense to any overt acts he would have
had if sufficient notice had been given, and, thus, any error was harmless. Woods
v. State (App. 3 Dist. 1990) 801 S.W.2d 932, petition for discretionary review
refused. Criminal Law 1167(1)
Statute governing convictions under conspiracy theory of the law of parties did
not violate federal due process or state due course of law principles as applied
in capital murder prosecution; reasonable fact finder could find that defendant
should have anticipated a murder in the carrying out of conspiracy to kidnap
victim's wife. Cienfuegos v. State (App. 1 Dist. 2003) 113 S.W.3d 481, rehearing
overruled, petition stricken, petition for discretionary review refused.
Conspiracy 23.5; Constitutional Law 258(3.1)
The indictment need not set out the offense with the same particularity for an
unexecuted as for an executed conspiracy. Brown v. State (1877) 2 Tex.Crim. 115;
Mason v. State (1877) 2 Tex.Crim. 192.
The parties to a conspiracy to commit crime must be named, and there must be at
least two principals. Dever v. State (Cr.App. 1895) 37 Tex.Crim. 396, 30 S.W.
1071. See, also, Woodworth v. State (1886) 20 Tex.Crim. 375. Conspiracy 43(1)
An indictment for conspiracy to commit a felony, manufacturing intoxicating
liquor, need not allege that accused and his co-conspirators did not have a legal
permit authorizing them to manufacture intoxicating liquor. Buckhannan v. State
(Cr.App. 1923) 95 Tex.Crim. 1, 252 S.W. 509. Conspiracy 43(6)
That indictment of one defendant only charged that defendant conspired with four
named persons did not preclude conviction where defendant conspired with only one
of named persons. Echols v. State (Cr.App. 1937) 133 Tex.Crim. 121, 109 S.W.2d
190. Conspiracy 43(12)
Under Rev.P.C.1911, arts. 1433, 1434, it was not necessary in charging conspiracy
to allege what the conspirators undertook to do in furtherance thereof, and such
unnecessary allegations could not be looked to in aid of the allegations of
conspiracy. Carter v. State (Cr.App. 1922) 91 Tex.Crim. 96, 237 S.W. 285.
Where Texas indictment charged defendant with unlawfully conspiring with others to
unlawfully take and steal money of value in excess of $50 but did not allege any
overt act in connection with alleged conspiracy, and under New York law a person
could not be convicted of conspiracy unless overt act was alleged and proved to
have been committed by one of conspirators in furtherance of conspiracy, and
demanding state was unable or unwilling to furnish witnesses who could
substantiate overt acts by defendant which could form basis of conspiracy under
New York law, grant of governor's warrant was improper. In re Taylor, 1971, 66
Misc.2d 1006, 323 N.Y.S.2d 128. Extradition And Detainers 32
20. Admissibility of evidence--In general
Where one of several defendants charged with conspiracy has been acquitted, the
record of acquittal is evidence for another defendant subsequently tried. Paul v.
State (1882) 12 Tex.Crim. 346.
When a conspiracy to commit burglary has been shown, any fact or circumstance
tending to show defendant's presence at the time of the commission of the offense
is admissible. Mixon v. State (Cr.App. 1896) 36 Tex.Crim. 66, 35 S.W. 394.
An accused is not entitled to prevent the state from proving the name of a
notorious conspirator. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari
denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 422(1)
Trial court did not commit error in robbery prosecution by permitting coindictee
to describe one of the conspirators, whose last name was not known by the witness,
or in permitting proof that unnamed conspirator lived with defendant and of
conspirator's part in bringing about the robbery. Phelps v. State (Cr.App. 1970)
462 S.W.2d 310, certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367.
Criminal Law 422(1)
Where two or more people take part in commission of a felony, evidence of the
conspiracy is admissible even though the substantive crime of conspiracy is not
charged in indictment. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari
denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 422(1)
Where two are acting together in the commission of an offense, the act of one to
prevent the apprehension of the other or both is admissible as a circumstance
showing guilt. Lemley v. State (Cr.App. 1937) 135 Tex.Crim. 148, 117 S.W.2d 435.
Criminal Law 423(4)
When two or more are acting together with an unlawful intent in commission of an
offense, common design and acting together makes them ipso facto conspirators and
merges conspiracy to do the act in the act itself; and previous acts and
declarations of any principal offender in pursuance of agreed plan and tending to
throw light upon it or motive with which it was committed is admissible against
all whether tried jointly or separately. Young v. State (Cr.App. 1947) 150
Tex.Crim. 378, 201 S.W.2d 46. Criminal Law 423(1)
Testimony that defendant and other conspirators had stated that purpose of the
robbery was to get funds to buy arms through the Cuban Embassy in Canada was
admissible to show motive. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310,
certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 342
Where in a murder case conspiracy was shown, a bill of sale purporting to convey
from deceased to defendant's co-conspirator certain goods found in the co-
conspirator's possession was properly admitted in evidence. Post v. State (1881)
10 Tex.Crim. 598.
Where the evidence in a burglary case showed a conspiracy, it was not error to
admit evidence of finding of the fruits of the crime in defendant's house in
defendant's absence. Jackson v. State (App. 1890) 13 S.W. 451, 19 Am.St.Rep. 839.
Burglary 38
At the place of the robbery tracks of two persons were found, both with
peculiarities; evidence of both tracks was admissible against each defendant.
Angley v. State (Cr.App. 1896) 35 Tex.Crim. 427, 34 S.W. 116.
On trial for conspiracy to commit arson, a letter written by a third party after
the accomplishment of the conspiracy, though it bore the name of one of the
conspirators, and was addressed to defendant, but never given to him, was
inadmissible against him. Dawson v. State (Cr.App. 1897) 38 Tex.Crim. 9, 40 S.W.
731. Criminal Law 433
Handwritten list of weapons which was found in defendant's purse when she was
arrested was admissible in evidence in robbery prosecution as proof of motive for
conspiracy to commit robbery. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310,
certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 342
Error in admitting into evidence over objection the oral and written statements
made by alleged coconspirator after termination of alleged conspiracy, without
sufficient proof of conspiracy, was prejudicial. Chapman v. State (Cr.App. 1971)
470 S.W.2d 656. Criminal Law 1169.7
J.'s threats, made in defendant's absence, after J.'s fight with deceased were
admissible against defendant, it being left to the jury to say whether the
conspiracy was then formed, in which case only they were to consider them. Blain
v. State (Cr.App. 1894) 33 Tex.Crim. 236, 26 S.W. 63.
Evidence, that, as they were leaving robbery victim defendant had beaten, witness
asked defendant how he could do anything like that and if he had ever done it
before and defendant answered that he had done it 11 times before, was admissible
as statement of one coprincipal or coconspirator to another, where conversation
occurred while they were in car of robbery victim, which was still being used by
robbers and which they intended to use after robbery. Lamberson v. State (Cr.App.
1974) 504 S.W.2d 894. Criminal Law 423(9)
In a prosecution for murder, where there is evidence that a number of people took
part in the homicide, and that defendant was among them, exclusion of evidence
offered by defendant to show threats and ill feeling against deceased of a person
not indicted with the others, if error, is harmless, since the presence of such
person and participation in the crime could not benefit defendant. Harris v. State
(Cr.App. 1892) 31 Tex.Crim. 411, 20 S.W. 916. Homicide 1038
Proof that defendant and another were acting together in selling marijuana was
sufficient to establish a conspiracy between them to commit the offense. Saddler
v. State (1959) 167 Tex.Crim. 309, 320 S.W.2d 146; Morgan v. State (Cr.App.1975)
519 S.W.2d 449.
Evidence that conspiracy to steal money from bank by exchange of checks with
depositor of another bank, if consummated, would not have deprived bank of more
than $49.18 did not sustain conviction for conspiracy since theft of less than $50
was mere misdemeanor. Perry v. State (Cr.App. 1936) 130 Tex.Crim. 74, 92 S.W.2d
442. Conspiracy 47(11)
Where there was no indication that agreement among witness, defendant and others
to steal cattle contemplated multiple offenses, that the witness was considered by
himself or the others to be part of the group for second theft, which occurred
while he was out of the State, or that he was to receive proceeds from that theft,
the conspiracy for the first theft terminated when the spoils were divided, and
thus witness was not an accomplice as to the second theft. Schoenberg v. State
(App. 14 Dist. 1981) 624 S.W.2d 808, review refused. Criminal Law 507(1)
Evidence did not show a conspiracy to murder or to commit any crime of which
murder might be the reasonable and natural consequence. Blain v. State (App. 1892)
18 S.W. 862.
The fact that each alleged accomplice of defendant in prosecution for receiving
and concealing stolen sheep, knowing it to have been stolen, corroborated the
other, was not sufficient corroboration of their testimony to sustain a
conviction. Wright v. State (Cr.App. 1940) 140 Tex.Crim. 120, 143 S.W.2d 394.
Criminal Law 511.10
Evidence that defendant was involved in automobile collisions and that he was paid
claims which he made to insurance companies for injuries allegedly sustained did
not corroborate his confession of conspiring to commit crime of theft by getting
involved in accidents and then filing claims against insurers. Smith v. State
(Cr.App. 1963) 363 S.W.2d 277. Criminal Law 534(1)
Evidence supported convictions of pickup truck driver and passenger for conspiracy
to manufacture phenylacetone; truck contained glassware, laboratory equipment, and
chemicals frequently associated with manufacture of controlled substance; and
record contained written and signed confession of one defendant. Pike v. State
(App. 10 Dist. 1988) 752 S.W.2d 737, petition for discretionary review refused.
Conspiracy 47(12)
Evidence that accused engaged in buying and selling grain, acting with another,
placed in hands of truck driver blank checks signed by accused which were
represented as being "good", with directions to buy corn, whereas one of such
checks which truck driver gave in payment for corn was not good did not sustain
conviction of conspiracy to commit felony theft of corn from person from whom
purchased. Witt v. State (Cr.App. 1944) 146 Tex.Crim. 627, 177 S.W.2d 781.
Conspiracy 47(11)
To convict two defendants of conspiracy to possess drugs, state was not required
to show that defendants intended to possess drugs jointly; rather, state only had
to prove that defendants agreed that one of them would purchase drug and,
therefore, necessarily possess it, and that one of them made overt act in
pursuance of that agreement. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485,
petition for discretionary review refused. Conspiracy 24.5
The accused, who was on trial for the murder of his jailer, contended that a
conspiracy among several of the prisoners extended no further than the escape, and
did not contemplate the killing of the jailer, or the infliction of bodily injury
upon him beyond his mere detention, and that the killing was the individual and
independent act of C. alone, perpetrated without the accused's complicity, and
without ability on his part to prevent it. In view of the nature and object of the
conspiracy, and of the preparation and use of a deadly weapon as a means to
execute the common design, the homicide was not the independent act of C. alone,
but was the act of each and all the conspirators, because it was directly incident
to and grew out of the common design of all. Stevenson v. State (1885) 17
Tex.Crim. 619; Kirby v. State (1887) 23 Tex.Crim. 13, 5 S.W. 165, citing
Mercersmith v. State (1880) 8 Tex.Crim. 211. And see Cox v. State (1880) 8
Tex.Crim. 254, 34 Am.Rep. 746; Blain v. State (1892) 30 Tex.Crim. 702, 18 S.W.
862; Renner v. State (1902) 43 Tex.Crim. 347, 65 S.W. 1102.
In a prosecution for conspiracy to commit murder, evidence did not show a positive
agreement to commit the offense of murder upon the husband of a woman infatuated
with defendant. King v. State (Cr.App. 1919) 86 Tex.Crim. 407, 216 S.W. 1091.
Conspiracy 47
Proof that defendant and his alleged coconspirators entered into positive
agreement to burn house of one of them did not support allegation of indictment
for conspiracy that they entered into agreement to burn another's house, destroyed
by fire communicated from former house. Wilson v. State (Cr.App. 1934) 127
Tex.Crim. 152, 74 S.W.2d 1020. Conspiracy 43(12)
Although there was corroborating evidence that defendants cashed checks which
another person had given them, returned proceeds thereof, and then accompanied
person to California where they expected to be employed, where no evidence, other
than evidence to be corroborated, was adduced to show that defendants knew an
offense was to be committed by their action in cashing checks, and where there was
no evidence to show that defendants agreed to commission of any offense,
defendants were noncoconspirators and their actions did not render them amenable
to prosecution and conviction for conspiracy to commit theft. Murdoch v. State
(Cr.App. 1970) 460 S.W.2d 423. Conspiracy 47(11)
Where, in a prosecution for homicide, the state did not claim a specific
conspiracy to kill deceased, but that he was killed as an incident to a conspiracy
to organize in Texas an armed force to invade Mexico, the members of the company
not immediately concerned in the killing could only be convicted of homicide on
proof that the killing was incidental to a conspiracy to do an unlawful act and
was within the scope thereof. Martinez v. State (Cr.App. 1914) 75 Tex.Crim. 416,
171 S.W. 1153. Homicide 612
Act of accepting payment to kill an individual and then recruiting killers to help
with the "job" was sufficient to meet statutory requirement for conspiracy to
commit murder and it would not be necessary to show overt act of killing deceased
by one or more of coconspirators. Brown v. State (Cr.App. 1978) 576 S.W.2d 36.
Conspiracy 28(3)
Finding that conspiracy defendants agreed to commit offense of drug possession was
supported by evidence that defendants met with undercover officer with intent to
purchase drugs from him, even though completion of drug transaction depended on
officer producing acceptable quality, which condition had not yet been met at time
of arrest. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for
discretionary review refused. Conspiracy 47(12)
Evidence was legally sufficient to support finding that defendant and his
accomplices engaged in a conspiracy to rob victim and his friend; defendant and
his acquaintances planned to rob victim and his friend, neither defendant nor any
of his acquaintances ever objected to the commission of the robbery, and defendant
and his acquaintances cooperated with the terms of the plan to commit robbery.
Thompson v. State (App. 12 Dist. 2001) 54 S.W.3d 88, habeas corpus granted 2003 WL
22410064, petition for discretionary review refused. Conspiracy 47(11)
Person who did not intend to commit burglary or aid in commission thereof, and
whose participation in alleged conspiracy to commit burglary was simulated, was
not "conspirator." Weathered v. State (Cr.App. 1935) 128 Tex.Crim. 263, 81 S.W.2d
91. Conspiracy 24(1)
Murder conviction, where both party and conspirator theories of culpability were
instructed, was supported by DNA evidence indicating that defendant participated
in sexual assault of victim, defendant's admission of participation in burglary,
and expert testimony that defendant could not be excluded from possibly having
made bloody sock prints on floors of victim's residence. Fuller v. State (Cr.App.
1992) 827 S.W.2d 919, certiorari denied 113 S.Ct. 3035, 509 U.S. 922, 125 L.Ed.2d
722, rehearing denied 114 S.Ct. 13, 509 U.S. 940, 125 L.Ed.2d 765, dismissal of
habeas corpus affirmed 158 F.3d 903, certiorari denied 119 S.Ct. 1809, 526 U.S.
1133, 143 L.Ed.2d 1012. Homicide 1184
Evidence was legally and factually sufficient to find defendant guilty of criminal
conspiracy to misapply fiduciary property resulting from securing a lower gas
price by promising to part of broker's commission to vice president of the gas
supply company, effectively lower amount of money the supply company could demand
for its gas, while enriching coconspirators in violation of vice president's
fiduciary duty to his company; defendant's company's records corroborated
testimony of both the broker and the vice president that broker's commission was
reduced by exactly one-half of salary of employee of defendant's company who was
vice president's son-in-law, and, although the indictment averred that the
conspiracy commenced over two years prior to the execution of the supply contract,
State produced evidence that defendant had engaged in a similar scheme at that
earlier time. Cantrell v. State (App. 6 Dist. 2001) 54 S.W.3d 41, rehearing
overruled, petition for discretionary review granted, opinion after remand from
court of criminal appeals 75 S.W.3d 503, petition for discretionary review
refused, appeal from denial of habeas corpus 97 S.W.3d 722, denial of habeas
corpus affirmed 112 S.W.3d 753. Conspiracy 47(3.1)
Evidence was legally and factually sufficient to establish that defendant was
guilty as a party to capital murder; defendant engaged in a conspiracy to rob
victim and his friend, victim's murder was committed in furtherance of the robbery
conspiracy, and defendant should have anticipated victim's murder as a result of
the carrying out of the conspiracy to commit robbery. Thompson v. State (App. 12
Dist. 2001) 54 S.W.3d 88, habeas corpus granted 2003 WL 22410064, petition for
discretionary review refused. Homicide 1207
Evidence was legally and factually sufficient to support conviction for capital
murder under conspiracy theory of law of parties; defendant drove car used during
kidnapping of victim's wife, kept watch over victim's wife and her baby when his
two coconspirators went to confront victim and murder him, and fled the scene with
coconspirators in car after fatal shooting. Cienfuegos v. State (App. 1 Dist.
2003) 113 S.W.3d 481, rehearing overruled, petition stricken, petition for
discretionary review refused. Homicide 614
In prosecution for conspiracy to commit a felony, where defendant did not take the
stand on his behalf, argument of prosecutor could not be considered to contain a
direct or indirect reference to defendant's failure to testify. Nisbet v. State
(Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601,
363 U.S. 829, 4 L.Ed.2d 1524. Criminal Law 721(1)
The jury should be instructed that the conspiracy could not be established by the
acts or declarations of a co-conspirator, made after the consummation of the
offense, and in the absence of defendant. Crook v. State (App. 1889) 11 S.W. 444.
Criminal Law 673(4)
There need be no charge on conspiracy, where the facts tend to show this, if the
charge on principals is sufficiently comprehensive. Augustine v. State (Cr.App.
1899) 41 Tex.Crim. 59, 52 S.W. 77, 96 Am.St.Rep. 765.
In prosecution for murder of defendant who, knowing that expedition leader was a
dangerous man, aided a burglary in course of which leader killed policeman, a
charge that co-conspirators would not be guilty of homicide committed by another,
not in connection with the burglary but as an independent act on an independent
impulse without consent of the others, was proper. Garcia v. State (Cr.App. 1948)
151 Tex.Crim. 593, 210 S.W.2d 574. Homicide 1466
It was proper for trial court in prosecution for criminal conspiracy to plead
indictment in the conjunctive and submit charge in disjunctive where instructions
unequivocally restricted jury's consideration to only those allegations in
indictment. Carrion v. State (App. 3 Dist. 1990) 802 S.W.2d 83. Criminal Law
814(1); Indictment And Information 125(20)
Where all the testimony showed a conspiracy between defendant and third persons
committing a murder, and that the murder was committed in pursuance of the common
design, the court could refuse to define a "conspiracy"; but where the testimony
did not show conclusively a conspiracy, the court must instruct on the subject,
and clearly state what facts must be found to justify a conviction. Vasquez v.
State (Cr.App. 1914) 74 Tex.Crim. 491, 171 S.W. 1160.
When the time that the conspiracy was entered into is a disputed fact, the trial
court should submit that fact to the jury and instruct them not to consider any
act or declaration which did not occur during the existence of the conspiracy.
Harris v. State (Cr.App. 1892) 31 Tex.Crim. 411, 20 S.W. 916.
Where several were jointly indicted for conspiracy, and one had severed and been
tried and acquitted, it was error to charge on the trial of another of the
defendants, with reference to a supposed conspiracy between him and the defendant
who had been acquitted. The charge should have confined the jury to a conspiracy
between the defendant on trial and the defendants not yet tried. Paul v. State
(1882) 12 Tex.Crim. 346.
Where the indictment charged the defendants, one H. and one W., with a conspiracy
to commit burglary, and the evidence completely exonerated the defendant W., it
was not error for the court to instruct the jury, that if the evidence showed a
conspiracy between the defendant and H., the offense would be complete, and that
the state was not required to prove W. was also a party to the conspiracy. The
allegations as to W. were held to be surplusage and not essential to be proved.
Woodworth v. State (1886) 20 Tex.Crim. 375.
On a trial for theft of a cow, there was evidence that defendant and others
conspired to prove a purchase of the cow after defendant took possession of it,
and the court charged that, "when two or more persons conspire together to commit
an offense, and each carries out the part agreed to be done by him, and such
offense is actually committed, then all parties to such an agreement are equally
guilty of such offense; and if * * * defendant fraudulently took the property, * *
* and others agreed or conspired, before or after such taking, to prove a purchase
or pretended purchase, * * * either before or after such taking, this would be no
defense to such fraudulent taking." Such instruction was authorized by the
evidence, and was correct. Kegans v. State (App. 1889) 11 S.W. 644. Larceny 73
Where two persons are charged with conspiracy and there has been an acquittal as
to one, or the evidence fails to show guilt as to one, conviction as to the other
cannot stand, because there must be at least two persons acting together before
any conspiracy could exist. Hustead v. State (Cr.App. 1922) 95 Tex.Crim. 49, 251
S.W. 1074. Conspiracy 23
In prosecution against accused and two others for conspiracy to commit burglary,
evidence that one of parties was not a conspirator would not relieve accused from
conviction of offense provided testimony showed that accused and another had
entered into conspiracy to commit burglary. Weathered v. State (Cr.App. 1935) 128
Tex.Crim. 263, 81 S.W.2d 91. Conspiracy 24(4.1)
� 2006 Thomson/West
END OF DOCUMENT
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the
offense is a felony of the third degree if the offense is committed against:
(1) a person the actor knows is a public servant while the public servant is
lawfully discharging an official duty, or in retaliation or on account of an
exercise of official power or performance of an official duty as a public servant;
(A) while the person or employee is engaged in performing a service within the
scope of the contract, if the actor knows the person or employee is authorized by
government to provide the service; or
(4) a person the actor knows is a security officer while the officer is performing
a duty as a security officer.
(d) For purposes of Subsection (b), the actor is presumed to have known the person
assaulted was a public servant or a security officer if the person was wearing a
distinctive uniform or badge indicating the person's employment as a public
servant or status as a security officer.
(4) "Sports participant" means a person who participates in any official capacity
with respect to an interscholastic, intercollegiate, or other organized amateur or
professional athletic competition and includes an athlete, referee, umpire,
linesman, coach, instructor, administrator, or staff member.
(2) a conviction under the laws of another state for an offense containing
elements that are substantially similar to the elements of an offense listed in
Subsection (b)(2) is a conviction of an offense listed in Subsection (b)(2).
CREDIT(S)
Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts
1977, 65th Leg., 1st C.S., p. 55, ch. 2, �� 12, 13, eff. July 22, 1977; Acts 1979,
66th Leg., p. 260, ch. 135, �� 1, 2, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p.
367, ch. 164, � 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 5311, ch. 977, �
1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, � 2.08, eff. Sept. 1, 1987;
Acts 1989, 71st Leg., ch. 739, �� 1 to 3, eff. Sept. 1, 1989; Acts 1991, 72nd
Leg., ch. 14, � 284(23) to (26), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch.
334, � 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 366, � 1, eff. Sept. 1,
1991; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 1997, 75th
Leg., ch. 165, � 27.01, eff. Sept. 1, 1997; Acts 1995, 74th Leg., ch. 318, � 5,
eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 659, � 1, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 165, �� 27.01, 31.01(68), eff. Sept. 1, 1997; Acts 1999, 76th
Leg., ch. 62, � 15.02(a), eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1158, � 1,
eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 294, � 1, eff. Sept. 1, 2003; Acts
2003, 78th Leg., ch. 1019, �� 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch.
1028, � 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, �� 16.001, 16.002,
eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 788, �� 1, 2, 6, eff. Sept. 1, 2005.
Acts 2003, 78th Leg., ch. 294 added subd. (b)(3) and made other nonsubstantive
changes.
"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date of this Act. For purposes of this section, an offense is
committed before the effective date of this Act if any element of the offense
occurs before the effective date.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is continued in
effect for that purpose."
Acts 2003, 78th Leg., ch. 1019 added subsec. (b)(3); in subsec. (d), inserted the
references to a security officer; and added subsec. (e)(3).
"This Act takes effect September 1, 2003, and applies only to an offense committed
on or after that date. An offense committed before the effective date of this Act
is covered by the law in effect when the offense was committed, and the former law
is continued in effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element of the offense
occurred before that date."
Acts 2003, 78th Leg., ch. 1028, rewrote subsec. (c); and added subsec. (e)(3).
Prior to amendment, subsec. (c) provided:
"An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that
an offense under Subsection (a)(3) is a Class A misdemeanor if the offense was
committed against an elderly individual or disabled individual, as those terms are
defined by Section 22.04."
"The change in law made by this Act applies only to an offense committed on or
after the effective date of this Act. An offense committed before the effective
date of this Act is covered by the law in effect when the offense was committed,
and the former law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this Act if any
element of the offense occurred before that date."
2005 Legislation
Acts 2005, 79th Leg., ch. 728 redesignated subsec. (b)(3), as added by Acts 2003,
78th Leg., ch. 1019, as subsec. (b)(4), redesignated subsec. (e)(3), as added by
Acts 2003, 78th Leg., ch. 1028, as subsec. (e)(4), and made nonsubstantive
changes.
Acts 2005, 79th Leg., ch. 788, reenacted and amended subsec. (b); repealed subsec.
(e)(1) and (2); and rewrote subsec. (f). Prior thereto subsecs. (b), (e)(1) and
(2) and (f) read:
"(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the
offense is a felony of the third degree if the offense is committed against:
"(1) a person the actor knows is a public servant while the public servant is
lawfully discharging an official duty, or in retaliation or on account of an
exercise of official power or performance of an official duty as a public servant;
"(A) while the person or employee is engaged in performing a service within the
scope of the contract, if the actor knows the person or employee is authorized by
government to provide the service; or
"(3) a person the actor knows is a security officer while the officer is
performing a duty as a security officer."
"(e)(1) 'Family' has the meaning assigned by Section 71.003, Family Code."
"(2) 'Household' has the meaning assigned by Section 71. 005, Family Code."
"(f) For the purposes of this section, a defendant has been previously convicted
of an offense against a member of the defendant's family or a member of the
defendant's household under this section if the defendant was adjudged guilty of
the offense or entered a plea of guilty or nolo contendere in return for a grant
of deferred adjudication, regardless of whether the sentence for the offense was
ever imposed or whether the sentence was probated and the defendant was
subsequently discharged from community supervision."
"The change in law made by this Act applies only to an offense committed on or
after September 1, 2005. An offense committed before September 1, 2005, is covered
by the law in effect when the offense was committed, and the former law is
continued in effect for that purpose. For the purposes of this section, an offense
was committed before September 1, 2005, if any element of the offense occurred
before that date."
Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, �� 12, 13 rewrote subsec. (b) and
added subsecs. (c) and (d). Prior to amendment, subsec. (b) read:
"An offense under this section is a Class A misdemeanor unless the offense is
committed under Subsection (a)(2) or (a)(3) of this section, in which event it is
a Class C misdemeanor."
Acts 1979, 66th Leg., ch. 135, in subsec. (c) designated the former provisions as
subd. (1) and added subd. 2; and in subsec. (d) added "unless the offense . . .
Class B misdemeanor".
Acts 1979, 66th Leg., ch. 164 inserted "including his spouse" in subds. (a)(1) and
(2).
Acts 1983, 68th Leg., p. 5311, ch. 977, � 1, in subsec. (a), in the introductory
language and in subd. (3) substituted "the person" for "he", in subds. (1) and (2)
substituted "the person's" for "his".
"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date [Sept. 1, 1983] of this Act.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect at the time the offense was committed, and the former law is
continued in effect for that purpose. For purposes of this section, an offense is
committed before the effective date of this Act if any element of the offense
occurs before the effective date."
Acts 1987, 70th Leg., ch. 1052, � 2.08, in subsec. (b), designated subd. (1) and
added subd. (2); in subsec. (c), inserted subd. (2); and redesignated former subd.
(2) as subd. (3).
Acts 1989, 71st Leg., ch. 739, �� 1 to 3 inserted subds. (c)(4) and (d)(2) and
added subsec. (e).
"(a) The change in law made by Sections 1 through 7 of this Act applies only to
the prosecution of an offense committed on or after the effective date [Sept. 1,
1989] of this Act. For purposes of this section, an offense is committed before
the effective date of this Act if any element of the offense occurs before the
effective date.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and that law is continued in effect
for this purpose."
Acts 1991, 72nd Leg., ch. 14, � 284, in subsec. (b), in subd. (1), substituted
"Section 242.002(6), Health and Safety Code, or a person providing medical or
psychiatric treatment at an institution described in that section, and the offense
is committed by causing bodily injury to a patient or resident of an institution
described in that section" for "Subsection (a), Section 2, Chapter 413, Acts of
the 53rd Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's
Texas Civil Statutes), or a person providing medical or psychiatric treatment at
an institution described in that subsection, and the offense is committed by
causing bodily injury to a patient or resident of an institution described in that
subsection", in subd. (2), substituted "Section 242.003(a)(6), Health and Safety
Code, or a person providing medical or psychiatric treatment at a facility, except
a facility operated by the Texas Youth Commission or the Texas Department of
Corrections, described in that section, and the offense is committed by causing
bodily injury to a patient or resident of a facility, except a facility operated
by the Texas Youth Commission or the Texas Department of Corrections, described in
that section" for "Subsection (a)(6), Section 2, Chapter 413, Acts of the 53rd
Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's Texas
Civil Statutes), or a person providing medical or psychiatric treatment at a
facility, except a facility operated by the Texas Youth Commission or the Texas
Department of Corrections, described in that subsection, and the offense is
committed by causing bodily injury to a patient or resident of a facility, except
a facility operated by the Texas Youth Commission or the Texas Department of
Corrections, described in that subsection"; and in subsec. (c), in subd. (1),
substituted "Section 242.002(6), Health and Safety Code, or a person providing
medical or psychiatric treatment at an institution described in that section, and
the offense is committed by threatening a patient or resident of an institution
described in that section" for "Subsection (a), Section 2, Chapter 413, Acts of
the 53rd Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's
Texas Civil Statutes), or a person providing medical or psychiatric treatment at
an institution described in that subsection, and the offense is committed by
threatening a patient or resident of an institution described in that subsection"
and in subd. (2), substituted "Section 242.003(a)(6), Health and Safety Code, or a
person providing medical or psychiatric treatment at a facility, except a facility
operated by the Texas Youth Commission or the Texas Department of Corrections,
described in that section, and the offense is committed by threatening a patient
or resident of a facility, except a facility operated by the Texas Youth
Commission or the Texas Department of Corrections, described in that section" for
"Subsection (a)(6), Section 2, Chapter 413, Acts of the 53rd Legislature, Regular
Session, 1953, as amended (Article 4442c, Vernon's Texas Civil Statutes), or a
person providing medical or psychiatric treatment at a facility, except a facility
operated by the Texas Youth Commission or the Texas Department of Corrections,
described in that subsection, and the offense is committed by threatening a
patient or resident of a facility, except a facility operated by the Texas Youth
Commission or the Texas Department of Corrections, described in that subsection."
Section 1 of Acts 1991, 72nd Leg., ch. 14, provides, in part, that the Act is a
revision of statutes, without substantive change.
Acts 1991, 72nd Leg., ch. 334, � 1, in subsec. (c), throughout the subsection
substituted references to the institutional division of the Texas Department of
Criminal Justice for references to the Texas Department of Corrections, and
corrected statutory references; and, in subd. (3), inserted "other than the
Windham Schools".
Acts 1991, 72nd Leg., ch. 366, � 1, in subsec. (b), added subd. (3).
Section 4 of Acts 1991, 72nd Leg., ch. 334, and � 5 of Acts 1991, 72nd Leg., ch.
366, each provide:
"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date [Sept. 1, 1991] of this Act. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is continued in
effect for this purpose."
Acts 1993, 73rd leg., ch. 900, � 1.01 rewrote subsecs. (b) and (c), and deleted
subsecs. (d) and (e); prior to amendment, subsecs. (b) through (e) read:
"(3) the offense is committed against a family member and the actor has been
previously convicted under this section for an offense against a family member two
or more times, in which event the offense is a felony of the third degree.
<"Text of subd. (2) as amended by Acts 1991, 72nd Leg., ch. 14, � 284(26)>
<"Text of subd. (2) as amended by Acts 1991, 72nd Leg., ch. 334, � 1>
"(4) the offense is committed against a family member and the actor has been
previously convicted under this section for an offense against a family member:
"(C) more than two times, in which event the offense is a felony of the third
degree.
"(2) the offense is committed against a family member and the actor has been
previously convicted under this section for an offense against a family member:
"(C) more than two times, in which event the offense is a felony of the third
degree.
"(e) In this section, "family" has the meaning assigned by Section 71.01, Family
Code."
Acts 1995, 74th Leg., ch. 318, in subsec. (b), added ", except that the offense is
a felony of the third degree if the offense is committed against a person the
actor knows is a public servant while the public servant is lawfully discharging
an official duty, or in retaliation or on account of an exercise of official power
or performance of an official duty as a public servant"; in subsec. (c), added ",
except that an offense under Subsection (a)(3) is a Class A misdemeanor if the
offense was committed against an elderly individual or disabled individual, as
those terms are defined by Section 22.04"; and added subsec. (d).
Acts 1995, 74th Leg., ch. 659, in subsec. (b), added provisions aggravating the
offense to state jail felony level for multiple offenses against family members;
and added subsec. (d).
"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date [Sept. 1, 1995] of this Act. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is continued in
effect for that purpose."
Acts 1997, 75th Leg., ch. 165, in subsec. (b), inserted subdivision designations,
and, therein, in subd. (1), added "; or", and in subd. (2), substituted "a state
jail felony if" for "unless", and at the end, deleted ", in which event the
offense is a state jail felony"; and redesignated subsec. (d), as added by Acts
1995, 74th Leg., ch. 659, as subsec. (e).
Acts 1999, 76th Leg., ch. 62, in subsec. (e), corrected a reference.
Acts 1999, 76th Leg., ch. 1158, rewrote subsec. (b); in subsec. (e), inserted a
subd. (1) designation, substituted "71.003" for "71.01" and added subd. (2); and
added subsec. (f). Prior to the amendment, subsec. (b) read:
"An offense under Subsection (a)(1) is a Class A misdemeanor, except that the
offense is:
"(1) a felony of the third degree if the offense is committed against a person the
actor knows is a public servant while the public servant is lawfully discharging
an official duty, or in retaliation or on account of an exercise of official power
or performance of an official duty as a public servant; or
"(2) a state jail felony if it is shown on the trial of the offense that the
offense was committed against a family member and that the defendant has been
previously convicted of an offense against a family member under this section two
or more times."
"(a) The change in law made by this Act applies only to an offense committed on or
after the effective date [Sept. 1, 1999] of this Act. For purposes of this
section, an offense is committed before the effective date of this Act if any
element of the offense occurs before the effective date.
"(b) An offense committed before the effective date of this Act is covered by the
law in effect when the offense was committed, and the former law is continued in
effect for that purpose."
Prior Laws:
Rev.P.C.1879, arts. 484-489, 493, 495, 499, 510, 511, 610, 611.
Rev.P.C.1895, arts. 587-592, 596, 598, 600, 604, 614, 615, 715, 716, 793.
Rev.P.C.1911, arts. 1008-1013, 1017, 1019, 1021, 1025, 1035, 1036, 1145, 1146,
1239.
Vernon's Ann.P.C. (1925) arts. 1138 to 1141, 1144 to 1146a, 1159, 1160, 1167, 1259
to 1260a, 1339.
CROSS REFERENCES
Justification for use of force, see V.T.C.A., Penal Code � 9.01 et seq.
Punishment,
Annual survey of Texas law: Assault offenses. Shirley W. Butts, 35 Sw.L.J. 511
(1981).
Family violence: What lawyers and judges can do. Judge Steve Russell, 49 Tex.B.J.
965 (1986).
Obtaining the intended protection for victims of domestic violence under section
22.01 of the Texas Penal Code. Reynaldo Anaya Valencia, 12 Tex. J. Women & L. 97
(2002).
Presumptions in criminal cases. Luther Hugh Solues III, 20 Baylor L.Rev. 277
(1968).
New Penal Code for Texas. Page Keeton and Seth S. Searcy III, 33 Tex.B.J. 980
(1970).
Presumptions in criminal cases. Luther Hugh Solues III, 20 Baylor L.Rev. 277
(1968).
Texas charging instrument law: Recent developments and continuing need for reform.
George E. Dix, 35 Baylor L.Rev. 689 (1983).
LIBRARY REFERENCES
RESEARCH REFERENCES
2002 ALR, Federal 9, Construction and Effect of United States Sentencing Guideline
� 2K2.1 (U.S.S.G. � 2K2.1, 18 U.S.C.A.) Pertaining to Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition and to Prohibited...
36 ALR 5th 541, Products Liability: Cigarettes and Other Tobacco Products.
39 ALR 4th 983, Sufficiency of Prior Conviction to Support Prosecution Under State
Statute Prohibiting Persons Under Indictment For, or Convicted Of, Crime from
Acquiring, Having, Carrying, or Using Firearms or Weapons.
31 ALR 4th 504, Power or Duty of State Court, Which Has Accepted Guilty Plea, to
Set Aside Such Plea on Its Own Initiative Prior to Sentencing or Entry of
Judgment.
58 ALR 3rd 662, Consent as Defense to Charge of Criminal Assault and Battery.
31 ALR 3rd 565, What Constitutes "Custodial Interrogation" Within Rule of Miranda
v Arizona Requiring that Suspect be Informed of His Federal Constitutional Rights
Before Custodial Interrogation.
9 ALR 3rd 203, Modern Status of Doctrine of Res Judicata in Criminal Cases.
52 ALR 2nd 1314, What is an Infamous Crime or One Involving Moral Turpitude
Constituting Disqualification to Hold Public Office.
112 ALR 1303, Right of Owner of Easement of Way to Make Improvements or Repairs
Thereon.
102 ALR 1019, Absence of Evidence Supporting Charge of Lesser Degree of Homicide
as Affecting Duty of Court to Instruct as To, or Right of Jury to Convict Of,
Lesser Degree.
103 ALR 1041, Defendant's Right to Elect as to Punishment Where Statutory
Provision as to Punishment is Changed After Commission of Offense, But Before
Conviction.
Encyclopedias
TX Jur. 3d Criminal Law � 418, Injury to Person Other Than One Accused Intended to
Injure; Transferred Intent.
TX Jur. 3d Criminal Law � 422, Public Servant's Lawful Discharge of Official Duty.
TX Jur. 3d Criminal Law � 429, What Constitutes a Deadly Weapon -- Motor Vehicles.
TX Jur. 3d Criminal Law � 3324, Generally; Necessity Of, and Time for Making,
Objection.
TX Jur. 3d Criminal Law � 4201, Excessive Fines and Cruel or Unusual Punishment --
Application to Particular Punishments.
TX Jur. 3d Criminal Law � 4722, Where Questions Involved Have Become Moot.
Forms
18A West's Texas Forms � 19.2, Texas Parental Notification Rules and Forms.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.1, Assault -- by Causing
Bodily Injury.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.5, Aggravated Assault --
Serious Bodily Injury.
McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 25.3, Unlawful Possession
of Firearm.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.4, List of Statutory
Presumptions.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 116.1, Assault.
McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 131.3, Unlawful Possession
of Firearm.
Dix and Dawson, 40 Tex. Prac. Series � 3.29, Special Rules -- Aggravated Offenses.
Dix and Dawson, 40 Tex. Prac. Series � 11.76, Specimens Taken for Treatment
Reasons.
Dix and Dawson, 41 Tex. Prac. Series � 20.282, Specificity Required by Traditional
Case Law.
Dix and Dawson, 41 Tex. Prac. Series � 20.383, Alternative Ways of Committing
Single Offense -- Distinguishing Different Offenses.
Dix and Dawson, 43 Tex. Prac. Series � 31.65, Application of the Hypothetically
Correct Jury Charge Analysis -- Specificity Pleaded in the Charging Instrument --
Construing Pleadings Alleging Specifics.
Dix and Dawson, 43 Tex. Prac. Series � 38.128A, Family Violence Enhancement to
Felony.
NOTES OF DECISIONS
In general 3
Admissibility of evidence 29
Bodily injury 6
Counsel 43.5
Defenses - In general 21
Defenses - Self-defense 22
Double jeopardy 26
Findings 43
Identity of defendant 24
Indictment 27
Instructions 34-42
Instructions - In general 34
Instructions - Robbery 41
Instructions - Self-defense 42
Jury 46
Means or methods 11
Mens rea 5
Physical contacts 7
Preemption 4
Review 45
Right of privacy 9
Robbery, instructions 41
Self-defense, defenses 22
Self-defense, instructions 42
Sentence and punishment 44
Tests 13
Validity 1
Verbal threats 10
Weapons 12
Witnesses 25
1. Validity
Statute prohibiting assault of public servant was not unconstitutionally vague for
failing to define "bodily injury," "pain," or "impairment of physical condition"
defendant was capable of determining from the common meanings of those terms that
he was prohibited from rushing at officer while trying to escape, and officer was
able to determine that he suffered pain when his fingers were slammed back and
bruised during defendant's assault. Bryant v. State (App. 10 Dist. 2001) 47 S.W.3d
80, petition for discretionary review refused. Assault And Battery 48;
Constitutional Law 82(6.1)
Dates of defendant's prior convictions for assault, family violence, unlike fact
of prior convictions, were not elements of defendant's subsequent enhanced charge
of assault, family violence, under current statute, which stated that prior
offense would be deemed committed before effective date of statute if any element
occurred before effective date of statute, and thus court had discretion to
confine defendant to jail under revised statute, even though prior convictions had
occurred under prior version of law that would not have given court discretion to
sentence defendant to jail. Sheppard v. State (App. 6 Dist. 1999) 5 S.W.3d 338.
Sentencing And Punishment 1828
Although Texas was among a minority of states that allowed a mens rea of
recklessness for aggravated assault, Texas penal code defined aggravated assault
as that term was ordinarily, contemporarily, and commonly understood, and thus,
defendant's prior Texas conviction for aggravated assault constituted a crime of
violence for purposes of enhancement under sentencing guidelines of his sentence
for attempted illegal reentry by a previously-deported alien. U.S. v. Fuentes-
Berlanga, C.A.5 (Tex.)2005, 149 Fed.Appx. 258, 2005 WL 2285313, Unreported,
certiorari denied 126 S.Ct. 1800, 164 L.Ed.2d 538. Sentencing And Punishment 793
3. In general
A single difficulty may embrace plural assaults, and a conviction may be had for
each. State v. Bradley (1871) 34 Tex. 95; Samuels v. State (1888) 25 Tex.Crim.
537, 8 S.W. 656; Ashton v. State (1893) 31 Tex.Crim. 482, 21 S.W. 48.
An assault can be committed under law of Texas only when act is coupled with
ability to commit a battery. Vietnamese Fishermen's Ass'n v. Knights of Ku Klux
Klan, S.D.Tex.1981, 518 F.Supp. 993. Assault And Battery 4
Prior conviction for assault against a household member could be used to enhance
current conviction, although prior conviction occurred before effective date of
enhancement statute; date of prior conviction was not an element of current crime,
and the state was required to prove only defendant's status as having committed
prior assault. Manning v. State (App. 14 Dist. 2003) 112 S.W.3d 740, petition for
discretionary review refused. Sentencing And Punishment 16
Simple assault by means of grabbing and falling on victim was not a lesser-
included offense of aggravated assault by striking victim with a baseball bat;
proof that defendant grabbed and fell on victim was not required to prove
aggravated assault by hitting victim with bat, as alleged in indictment. Irving v.
State (Cr.App. 2005) 176 S.W.3d 842. Indictment And Information 189(2)
Prior Texas offense of misdemeanor assault, which required causing bodily injury,
necessarily involved use or attempted use of physical force, as required for such
offense to be predicate for federal offense of unlawful possession of firearm
following misdemeanor conviction of domestic violence. U.S. v. Shelton, C.A.5
(Tex.)2003, 325 F.3d 553, rehearing and rehearing en banc denied 67 Fed.Appx. 250,
2003 WL 21145726, certiorari denied 124 S.Ct. 305, 540 U.S. 916, 157 L.Ed.2d 210,
certiorari denied 125 S.Ct. 866, 543 U.S. 1057, 160 L.Ed.2d 782. Weapons 4
4. Preemption
City ordinance making it illegal to, in any manner oppose, molest, abuse or
interrupt a police officer in the execution of his duty, which also made it
unlawful for any person to "assault" or "strike" such a police officer, was
partially preempted by V.T.C.A., Penal Code �� 22.01 and 22.02, prohibiting
assault and aggravated assault. City of Houston, Tex. v. Hill, U.S.Tex.1987, 107
S.Ct. 2502, 482 U.S. 451, 96 L.Ed.2d 398. Municipal Corporations 592(1)
5. Mens rea
Where one intending to commit an assault with his fists, is so confused by a blow
that he uses a knife without knowing what he is doing, he may be convicted of
simple assault. Brewer v. State (Cr.App. 1913) 68 Tex.Crim. 483, 153 S.W. 622.
Assault And Battery 54
In prosecution for aggravated assault with deadly weapon, state was not required
to prove culpable mental state in connection with aggravating element of use of
deadly weapon; culpable mental states of intent, knowledge, and recklessness
relate to assault element of causing bodily injury to another, and second culpable
mental state is not required to be included with deadly weapon element. Butler v.
State (App. 2 Dist. 1996) 928 S.W.2d 286, rehearing overruled, petition for
discretionary review refused. Assault And Battery 56
To be guilty of assault, one must intend the result of the conduct, not just the
conduct itself. Brooks v. State (App. 3 Dist. 1998) 967 S.W.2d 946. Assault And
Battery 49
Assault requires proof that the defendant knew or reasonably believed that the
complainant would regard the contact as offensive or provocative at the time of
the contact. Ramos v. State (App. 1 Dist. 1998) 981 S.W.2d 700, petition for
discretionary review refused. Assault And Battery 48
6. Bodily injury
Prior Texas offense of misdemeanor assault, which required causing bodily injury,
necessarily involved use or attempted use of physical force, as required for such
offense to be predicate for federal offense of unlawful possession of firearm
following misdemeanor conviction of domestic violence. U.S. v. Shelton, C.A.5
(Tex.)2003, 325 F.3d 553, rehearing and rehearing en banc denied 67 Fed.Appx. 250,
2003 WL 21145726, certiorari denied 124 S.Ct. 305, 540 U.S. 916, 157 L.Ed.2d 210,
certiorari denied 125 S.Ct. 866, 543 U.S. 1057, 160 L.Ed.2d 782. Weapons 4
Genuine issues of material fact regarding whether gas station manager caused
plaintiff to suffer an offensive physical touching, by suggesting to police
officer at scene that plaintiff should orally siphon from his car gasoline for
which he had been unable to pay and by eagerly supplying the implements requested
by police officer to facilitate siphoning, precluded summary judgment on assault
claim against manager under Texas law. Hutchison v. Brookshire Bros., Ltd.,
E.D.Tex.2003, 284 F.Supp.2d 459. Federal Civil Procedure 2515
Where defendant knocked the prosecutor down with a milk bucket, there was an
assault and battery. Marrow v. State (Cr.App. 1897) 37 Tex.Crim. 330, 39 S.W. 944.
A man's taking hold of a woman without her consent, and in such a way as to cause
in her a sense of shame, or a disagreeable emotion of the mind, is sufficient to
constitute an assault, and the slightest degree of force would constitute a
battery. Poldrack v. State (Cr.App. 1919) 86 Tex.Crim. 272, 216 S.W. 170. Assault
And Battery 48
Defendant's placing his hand on prosecutrix' thigh and later in her pants to
arouse her in accordance with their previous mutual agreement to engage in
intercourse would not constitute "offensive conduct" as defined by subd. (a)(3) of
this section so that defendant's testimony to that effect did not raise issue of
offensive conduct as a lesser included offense in prosecution for aggravated rape.
Conner v. State (App. 6 Dist. 1982) 636 S.W.2d 214. Rape 59(20.1)
Where accused had threatened to beat prosecutor to death the first time they met
again, and a few days thereafter he approached him on the highway, in an angry and
threatening manner, telling him, if he had a knife, to use it, and the prosecutor
was afraid to do so, and then ran his hand into his pocket, but suddenly stopped
when prosecutor pointed a pistol at him, an assault was established. Bristow v.
State (Cr.App. 1899) 40 Tex.Crim. 505, 51 S.W. 393. Assault And Battery 48
Where one approaches another in a threatening manner and uses threatening language
and gestures, it is an assault. Bristow v. State (Cr.App. 1899) 40 Tex.Crim. 505,
51 S.W. 393.
An owner of animals, who by threatened use of violence took them from one who had
taken them up for depredating on his crop, did not violate Rev.P.C.1895 art. 600
(now, this section). Franklin v. State (Cr.App. 1911) 61 Tex.Crim. 235, 134 S.W.
702.
Drawing back or lifting the arm to strike one who could have been hit is an
assault. Western Union Telegraph Co. v. Bowdoin (Civ.App. 1914) 168 S.W. 1.
Assault And Battery 2
9. Right of privacy
An "assault" is an offense against the peace and dignity of the state as well as
an invasion of private rights. Texas Bus Lines v. Anderson, 1950, 233 S.W.2d 961,
ref. n.r.e.. Assault And Battery 2
Defendant who went to witness to secure his impounded stock, and who, in reply to
witness' threat to turn stock over to officers, stated that he would turn witness
over to undertaker, was not guilty of assault within Rev.P.C.1911 art. 1013 (now,
this section), where at time of making remark defendant was going away from
witness and distance was not shown, nor was it claimed that he made any
demonstration with gun in his possession. Clark v. State (Cr.App. 1925) 99
Tex.Crim. 73, 268 S.W. 731. Assault And Battery 48
In order to prove assault by verbal threats, State had to show that defendant
threatened police officer with imminent bodily injury. Hill v. State (App. 11
Dist. 1992) 844 S.W.2d 937. Assault And Battery 48
The validity of officers' attempt to arrest defendant for the crime of interfering
with the performance of their public duties was not a defense to crime of assault
on a public servant in the lawful discharge of his official duties, even if
defendant's alleged interference involved speech only. Tucker v. State (App. 13
Dist. 2003) 114 S.W.3d 718, petition for discretionary review refused, rehearing
on petition for discretionary review denied. Assault And Battery 67
An assault may be committed by one or more persons at the same time by the same
act. State v. Bradley (1871) 34 Tex. 95.
The offense of assault with a motor vehicle must arise out of the collision of the
vehicle with a person, or a causing of injury to a person; and the assault may
consist of the vehicles striking a person's body or its striking a vehicle in
which a person is riding, or its striking a vehicle that is thereby caused to
strike the victim. Perez v. State (Cr.App. 1977) 545 S.W.2d 839. Automobiles 347
Assault under subd. (a)(2) of this section may be accomplished through use of
animate object, such as a dog. Garrett v. State (Cr.App. 1981) 619 S.W.2d 172.
Assault And Battery 48
12. Weapons
The use of a loaded gun which was incapable of being fired because of a broken
firing pin was a simple assault and not an aggravated assault with a deadly
weapon. Pearce v. State (Cr.App. 1897) 37 Tex.Crim. 643, 40 S.W. 806.
Defendant, who went to witness to secure his impounded stock with a gun, which he
carried with barrel pointed at ground, and who made no demonstration with it and
used no threatening language and who replied in affirmative whether he had brought
gun to secure his stock, without changing his position or raising gun or making
threat to use it, was not guilty of assault within Rev.P.C.1911, arts. 1008, 1013
(now, this section). Clark v. State (Cr.App. 1925) 99 Tex.Crim. 73, 268 S.W. 731.
Assault And Battery 53
Where the instrument used in an alleged assault is not a deadly weapon and no
serious injury is inflicted, the issue of simple assault arises. Brown v. State
(Cr.App. 1950) 155 Tex.Crim. 233, 233 S.W.2d 578. Assault And Battery 48
Automobile can be "deadly weapon". Butler v. State (App. 2 Dist. 1996) 928 S.W.2d
286, rehearing overruled, petition for discretionary review refused. Automobiles
347
Although a knife is not per se a "deadly weapon" for purposes of the aggravated
assault statute, a knife can be found to be a deadly weapon based on the nature of
its use or intended use. Garcia v. State (App. 1 Dist. 1999) 17 S.W.3d 1, petition
for discretionary review refused. Assault And Battery 56
Evidence in aggravated assault prosecution supported finding that defendant used
or exhibited "deadly weapon"; defendant stabbed correctional officer with spear-
like sharpened metal object, and officer testified weapon was capable of causing
death or serious bodily injury. Simmons v. State (App. 6 Dist. 2003) 106 S.W.3d
756. Assault And Battery 91.10(1)
Evidence was legally sufficient to support conviction for aggravated assault with
a deadly weapon; alleged victim and two witnesses testified that defendant got out
of his car with a knife and used knife to stab alleged victim. Trevino v. State
(App. 2 Dist. 2004) 2004 WL 452259, Unreported, rehearing overruled. Assault And
Battery 91.6(2)
13. Tests
Hospital worker's taking of blood specimen from motorist, who was not in condition
which might justify emergency action and had not given his consent, was an
assault, in violation of state law, requiring suppression of the results. Hailey
v. State (App. 10 Dist. 2001) 50 S.W.3d 636, petition for discretionary review
granted, reversed 87 S.W.3d 118, certiorari denied 123 S.Ct. 2218, 538 U.S. 1060,
155 L.Ed.2d 1111, rehearing denied 124 S.Ct. 373, 540 U.S. 941, 157 L.Ed.2d 261.
Assault And Battery 2; Automobiles 419
The terms "simple assault" and "assault and battery" are used synonymously, and
the latter term does not include an aggravated assault. Foster v. State (1863) 27
Tex. 236.
Aggravated assault and battery necessarily includes simple assault and battery.
One cannot be heard to complain of conviction of the latter on proof sufficient to
establish the former. Foster v. State (App. 1888) 8 S.W. 664.
Evidence that defendant's mother and sister had not observed a gun in defendant's
apartment and that victim vacillated when describing handgun defendant allegedly
held to her head did not require jury instruction on lesser included offense of
aggravated assault in prosecution for aggravated assault with deadly weapon;
testimony of mother and sister did not negate defendant's use of handgun on day of
offence, and victim was unwavering in her observation of handgun in defendant's
hand that he pointed at her head. Moss v. State (App. 2 Dist. 1996) 919 S.W.2d
907, petition for discretionary review refused, rehearing on petition for
discretionary review denied. Assault And Battery 96(8)
Assault is not a lesser-included offense of either aggravated assault or indecency
with a child because (1) neither charged offense requires proof that the defendant
knew or reasonably believed that the complainant would regard the contact as
offensive or provocative at the time of the contact; (2) assault differs more from
the charged offenses than simply in injury or risk of injury; (3) assault differs
more from the charged offenses than solely by having a less culpable mental state;
and (4) assault does not consist of an attempt to commit either of the charged
offenses. Ramos v. State (App. 1 Dist. 1998) 981 S.W.2d 700, petition for
discretionary review refused. Indictment And Information 189(2); Indictment And
Information 191(.5)
Aggravated assault with which defendant was charged did not constitute a lesser-
included offense of manslaughter, and thus such aggravated assault could serve as
predicate offense for felony murder, where state alleged in indictment that
defendant committed the aggravated assault with an intentional and knowing mind
set. Lawson v. State (App. 7 Dist. 2000) 26 S.W.3d 920, petition for discretionary
review granted, petition for discretionary review refused, affirmed 64 S.W.3d 396.
Homicide 597; Indictment And Information 191(4)
Felony offense of deadly conduct was not lesser included offense of aggravated
assault by threat, but rather aggravated assault by threat was lesser included
offense of felony deadly conduct, even though aggravated assault required proof of
higher culpable mental state, and felony deadly conduct had lesser potential
sentence, in light of fact that aggravated assault required only proof that
defendant used or exhibited weapon, whereas felony deadly conduct required proof
that defendant discharged firearm at or in direction of complainant, which created
more serious risk of injury. Rogers v. State (App. 6 Dist. 2001) 38 S.W.3d 725,
petition for discretionary review refused, appeal after new sentencing hearing 87
S.W.3d 779. Indictment And Information 189(2)
Resisting arrest was not lesser included offense of charged offense of assault of
a public servant, as elements of the alleged lesser offense were not functionally
the same or less than those required to prove the charged offense, which required
bodily injury and included a reckless mental state, and alleged testimony of
defendant's witness regarding a chase and a subsequent encounter were not facts
required to establish the charged offense and, thus, was not evidence of any
alleged lesser included offense of the charged offense. Gilmore v. State (App. 9
Dist. 2001) 44 S.W.3d 92, petition for discretionary review refused. Indictment
And Information 191(.5)
Regardless of whether defendant's arrest was lawful or unlawful under the search
and seizure provisions of federal and state constitutions, deputy constable was in
the lawful discharge of his duty when he attempted to arrest defendant in
defendant's home, and thus, defendant could be convicted of crime of assault on a
public servant for his actions in resisting that arrest. Tucker v. State (App. 13
Dist. 2003) 114 S.W.3d 718, petition for discretionary review refused, rehearing
on petition for discretionary review denied. Assault And Battery 48
Offense of assault was not lesser included offense to reckless conduct, and trial
court did not err, in prosecution for reckless conduct, in refusing to charge on
offense of assault. Gallegos v. State (Cr.App. 1977) 548 S.W.2d 50. Assault And
Battery 96(1)
Under this chapter, reckless conduct is lesser and included offense to assault.
Gallegos v. State (Cr.App. 1977) 548 S.W.2d 50. Indictment And Information 189(2)
Aggravated assault with a deadly weapon was not a lesser included offense of
aggravated sexual assault, but rather was a separate and distinct offense; the
state was not required to prove that the defendant caused bodily injury to the
complainant, threatened to cause bodily injury to the complainant, or caused
physical contact with the complainant, knowing the contact would be regarded as
offensive to prove aggravated sexual assault. Williamson v. State (App. 5 Dist.
2006) 2006 WL 894873, Unreported. Indictment And Information 189(2)
17. ---- Homicide, included offenses
If accused placed a child, to which his sister-in-law had just given birth, in an
exposed position near his house, without any intent to kill it, but to hide his
sister-in-law's shame and his own paternity of it until it could be carried away,
he would not be guilty of assault to murder, but of some lesser degree of assault,
if of anything. Martin v. State (Cr.App. 1909) 57 Tex.Crim. 264, 122 S.W. 558.
Homicide 730
In prosecution of passenger for murder of street car conductor, where there was
evidence that the conductor, while the car was in motion pushed passenger off from
platform, causing him to fall on his back, instruction that, if the conductor
ejected passenger, causing him bodily pain, "such as was reasonably calculated to
produce passion," the passenger could not be convicted of higher degree of
homicide than manslaughter, was erroneous, since such ejection from car
constituted an assault and battery, and was sufficient to reduce the crime to
manslaughter without specific proof of pain and without proof that it was
calculated to produce passion. Mickle v. State (Cr.App. 1921) 88 Tex.Crim. 405,
227 S.W. 491. Homicide 679
Police officer did not commit assault against arrestee under Texas law by pointing
his pistol at arrestee in course of his official duties. Hinojosa v. City of
Terrell, Tex., C.A.5 (Tex.)1988, 834 F.2d 1223. Assault And Battery 2
In prosecution for aggravated assault on a police officer, court did not err in
overruling defendant's motion to be punished under this section proscribing
assault generally, rather than � 38.03 proscribing use of force against peace
officer. Johnson v. State (Cr.App. 1977) 548 S.W.2d 700. Assault And Battery 100
Uniformed police officer was public servant, for purposes of statute prohibiting
assault on public servant, even though he was responding to call outside his
jurisdiction, as officer had authority to arrest outside his jurisdiction
defendant who committed felony in officer's presence. Hoitt v. State (App. 6 Dist.
2000) 28 S.W.3d 162, petition for discretionary review granted, petition for
discretionary review dismissed with per curiam opinion 65 S.W.3d 59, rehearing on
petition for discretionary review denied. Assault And Battery 48
Police officers were "lawfully discharging" their official duties as peace
officers when they restrained defendant in attempt to prevent her from interfering
with other officers' interview with defendant's husband, as required to support
conviction for assault of public servant, in that separation was standard police
procedure when responding to 911 call related to domestic disturbance. Johnson v.
State (App. 3 Dist. 2005) 172 S.W.3d 6, rehearing overruled, petition for
discretionary review refused. Assault And Battery 91.10(2)
Teacher walking on campus during school day was "in the performance of educational
duty" within meaning of statutory prohibition against assaulting teacher in the
performance of educational duty. Trujillo v. State (App. 4 Dist. 1991) 809 S.W.2d
593. Assault And Battery 48
Evidence was sufficient to support finding that juvenile knew that person he
assaulted in classroom was an education assistant, thus supporting delinquency
adjudication for assault on a public servant, even though juvenile did not know
that assistant's employment gave her special legal standing under the penal code.
In re J.L. O. (App. 3 Dist. 2002) 2002 WL 1804951, Unreported. Infants 176
Defendant, on going to a hospital, turned over his 6 year old child to one to be
taken care of until he was able to leave the hospital and care for the child, and
was arrested on a charge of vagrancy, and sued out a writ of habeas corpus, and
obtained an agreement whereby such person was to keep the child until the charge
was disposed of. The charge was dismissed on agreement that defendant would not
interfere with the child's custody until it was determined whether he was entitled
thereto. On the refusal of the one in possession to surrender the child and in
attempting to get possession of the child, he had no right to strike the person in
possession. Carrel v. State (Cr.App. 1915) 77 Tex.Crim. 344, 178 S.W. 331.
A guardian having for a long time had no care or custody of his ward, but having
emancipated her, as concerns care, custody, and control of her, cannot justify an
assault and battery on her, on the ground of the relationship and the right to
punish. Eitel v. State (Cr.App. 1916) 78 Tex.Crim. 552, 182 S.W. 318.
That defendant was restrained before he made battery is no defense. Goss v. State
(Cr.App. 1897) 40 S.W. 725.
Violence to the person may be lawful and does not always amount to an assault or
battery. Pitts v. State (Cr.App. 1946) 149 Tex.Crim. 608, 197 S.W.2d 1012. Assault
And Battery 48
In action to recover for alleged assault allegedly arising when school football
coach for seventh grade team struck student player's helmet and grabbed his face
mask, phrase "for the purpose of instruction and encouragement," although coming
close to expressing legitimate purposes of privileged force, was neither entirely
accurate nor complete and was conductive to misunderstanding. Hogenson v. Williams
(Civ.App. 1976) 542 S.W.2d 456. Assault And Battery 43(2)
No evidence existed, in prosecution for assault with bodily injury arising from
incident at defendant's ex-husband's apartment, to show that victim was a danger
to defendant's daughter and thus provide a basis for a "defense of others"
defense; victim and defendant's daughter had developed close relationship during
the time victim had been dating defendant's ex-husband, victim and defendant's
daughter were already asleep on night of assault, and defendant could point only
to her "intuition" as a mother to support a belief that daughter was in danger.
Wilhite v. State (App. 2 Dist. 2003) 2003 WL 21666691, Unreported. Assault And
Battery 91.13(6)
For defendant, after there was no danger of violence from one who had been knocked
down and was being held, to kick at him was an assault. Marrow v. State (Cr.App.
1897) 37 Tex.Crim. 330, 39 S.W. 944. Assault And Battery 67
Fact that automobile passenger was detained by police officer in order that
officer might check on license of driver and verify whether traffic offense
warrants were outstanding against passenger furnished no defense to assault upon
officer, if officer had used no force and had not touched passenger or restrained
him by force. Randall v. State (Cr.App. 1969) 447 S.W.2d 912. Assault And Battery
63
To use firearms defensively when attacked is not an assault under Texas law.
Lester v. State (Cr.App. 1973) 498 S.W.2d 927. Assault And Battery 67
Homosexual conduct was lesser included offense of charged sexual assault under
circumstances clearly indicating that both defendant and victim were males, that
nothing in record would contradict conclusion that they engaged in deviate sexual
intercourse, and that only issue for jury was whether intercourse was consensual.
Valdez v. State (App. 8 Dist. 1999) 993 S.W.2d 346, rehearing overruled, petition
for discretionary review refused. Indictment And Information 191(.5)
Evidence was insufficient to support claim that defendant was acting in self-
defense during altercation with victim, even though victim testified that
defendant put arm out and pushed her away defensively as she swung at him, and
sheriff's deputy testified that defendant told him substantially same story on
night of incident, where victim's friend testified that, on night after incident,
victim painted defendant as aggressor, and jury also heard victim's testimony
regarding nature of relationship, other violent incidents between them, and fact
that victim tried to leave defendant before and after incident, but continued to
stay with him because she loved him. Zuliani v. State (App. 3 Dist. 2001) 52
S.W.3d 825, petition for discretionary review granted, reversed 97 S.W.3d 589, on
remand 2003 WL 21023105. Assault And Battery 91.13(5)
Any harm arising from jury instruction at assault trial that erroneously
instructed jury that defendant's right to act in self-defense had to be based on
bodily injury was not egregious, so as to warrant reversal of the conviction,
given uncontroverted evidence that the victim had struck defendant so that he had
a reasonable expectation of some bodily injury. Eck v. State (App. 1 Dist. 2004)
2004 WL 1171978, Unreported, petition for discretionary review refused. Criminal
Law 1038.1(4)
Evidence that defendant choked victim by the neck until she urinated on herself,
after she had initiated an argument and become physically violent, was legally
sufficient to support jury's rejection of defendant's self-defense theory on the
ground that the degree of forced used by defendant was more than immediately
necessary to protect himself. Eck v. State (App. 1 Dist. 2004) 2004 WL 1171978,
Unreported, petition for discretionary review refused. Assault And Battery
91.13(5)
If one who begins an affray strikes a blow or does an act intended for his
original assailant, but which takes effect on another, he cannot claim
justification for such accidental blow, but would be guilty of an offense thereby.
Savage v. State (Cr.App. 1925) 100 Tex.Crim. 361, 272 S.W. 193.
25. Witnesses
Defense counsel's eliciting testimony that complainant might have been aggressor
in stormy relationship opened the door to evidence of defendant's prior
misdemeanor convictions for assault of complainant, even if those convictions did
not involve moral turpitude within meaning of rule governing impeachment evidence.
Hardeman v. State (App. 3 Dist. 1993) 868 S.W.2d 404, petition for discretionary
review granted, petition for discretionary review dismissed 891 S.W.2d 960.
Criminal Law 396(1)
Misdemeanor assault committed by man against woman is crime of moral turpitude and
is admissible for impeachment purposes. Hardeman v. State (App. 3 Dist. 1993) 868
S.W.2d 404, petition for discretionary review granted, petition for discretionary
review dismissed 891 S.W.2d 960. Witnesses 345(2)
27. Indictment
An intent to commit a criminal assault can be presumed from the fact of actual
injury to prosecutrix. Miller v. State (Cr.App. 1912) 67 Tex.Crim. 654, 150 S.W.
635. Assault And Battery 82
The State no longer must prove the ability to commit a battery for an accused to
be convicted of assault. Miller v. State (App. 13 Dist. 1987) 741 S.W.2d 501,
petition for discretionary review refused.
In prosecution for assault on public servant, state was required to show that
police officer was lawfully attempting to arrest defendant when assault occurred,
even though such a requirement was not element of charged offense, as state
alleged in indictment that officer was attempting to arrest defendant, allegation
described essential element of offense, and proving allegation would not
unnecessarily increase state's burden of proof. Hoitt v. State (App. 6 Dist. 2000)
28 S.W.3d 162, petition for discretionary review granted, petition for
discretionary review dismissed with per curiam opinion 65 S.W.3d 59, rehearing on
petition for discretionary review denied. Criminal Law 80
Evidence that defendant previously assaulted victim, and judgment in that case,
were admissible in assault prosecution to contradict defendant's claim that his
motive for striking victim was love and compassion rather than malice, and there
was no showing that evidence should be excluded as prejudicial. Moreno v. State
(App. 4 Dist. 1997) 961 S.W.2d 512, rehearing overruled, petition for
discretionary review refused. Criminal Law 371(12)
Extraneous misconduct evidence that defendant assaulted his girlfriend with razor-
edged box-cutter five hours before he assaulted complainant was admissible in
aggravated assault prosecution; such evidence was relevant to issue of motive, as
evidence showed that defendant yelled at girlfriend and attempted to strike her
after she danced with complainant once and that defendant's assault on girlfriend
occurred after she danced with complainant again, and such evidence was also
necessary to jury's understanding of stabbing because defendant's assault of
girlfriend showed events that led up to his stabbing of complainant. Garcia v.
State (App. 1 Dist. 1999) 17 S.W.3d 1, petition for discretionary review refused.
Criminal Law 369.2(4); Criminal Law 371(12)
Notation on prior assault judgment that family violence was "not applicable or not
available" was not an admission that there was no family relationship between
defendant and victim, but rather was simply a sign that family violence was not an
issue in the prior case and was not litigated or determined, and thus notation did
not collaterally estop state from introducing evidence of the prior conviction at
defendant's trial for assault on a household member and litigating issue of
whether that victim was a family member, which if proven would elevate current
charge to a felony. State v. Cagle (App. 14 Dist. 2002) 77 S.W.3d 344, petition
for discretionary review refused. Judgment 751
Notation on defendant's prior assault judgment that family violence was "not
applicable" indicated that family violence was not an issue in the case, and thus
the State was not collaterally estopped from introducing evidence that defendant's
prior assault conviction was based on the assault of a family member, which would
elevate defendant's current conviction for assault on a household member to a
felony. Collesano v. State (App. 1 Dist. 2002) 2002 WL 2026055, Unreported,
petition for discretionary review refused. Judgment 751
Inmate failed to show that evidence of correctional officer's prior reprimand for
filing non-work related workers' compensation claim was relevant as to officer's
bias or prejudice in inmate's prosecution for assault of public servant, where
incident for which workers' compensation claim was denied occurred five years
before alleged assault on officer and workers' compensation claim was denied not
because accident did not occur but because it occurred during officer's break
period. Johnson v. State (App. 14 Dist. 2002) 2002 WL 31318668, Unreported.
Witnesses 344(4)
Evidence that defendant grabbed the alleged injured female with one hand, and put
his other hand on her body at or near her privates, accompanying such acts with an
insulting proposal to her, if believed by the jury, would justify a verdict of
guilty of assault and battery. Poldrack v. State (Cr.App. 1919) 86 Tex.Crim. 272,
216 S.W. 170. Assault And Battery 91.9
There was sufficient evidence to support conviction of defendant for assault with
motor vehicle, based on evidence that defendant drove vehicle which rammed into
rear of automobile, seriously and permanently incapacitating its driver, at high
rate of speed despite knowledge that its brakes were defective. Beaubrum v. State
(App. 3 Dist. 1987) 735 S.W.2d 489, petition for discretionary review refused.
Automobiles 355(14)
Uncontroverted testimony of assault victim that defendant took running leap off a
porch onto victim's back, forcing her to the ground and causing injuries to her
legs, could support conviction for assault with bodily injury, even though victim
also characterized action as reckless; testimony that defendant took running leap,
as opposed to stumbling, supported finding of conscious intent. Schumacher v.
State (App. 3 Dist. 1991) 814 S.W.2d 871. Assault And Battery 91.2
Evidence supported finding that defendant swung her hand at police officer either
with intention of injuring him or with knowledge that injury was reasonably
certain to occur, and thus factually sustained conviction for assault on a public
servant, notwithstanding testimony of defendant and her husband that defendant's
conduct was accidental. Brooks v. State (App. 3 Dist. 1998) 967 S.W.2d 946.
Assault And Battery 91.10(1)
Evidence was sufficient to support finding that defendant acted recklessly when
she kicked and pushed police officers who were trying to prevent her from
interfering with other officers' interview of defendant's husband in course of
investigating domestic disturbance, as required to support conviction for assault
of public servant; in course of attempts to restrain defendant, she flailed her
arms and kicked police officers. Johnson v. State (App. 3 Dist. 2005) 172 S.W.3d
6, rehearing overruled, petition for discretionary review refused. Assault And
Battery 91.10(1)
Evidence was sufficient to support the trial court's finding that the enhancement
paragraph against defendant, which alleged that defendant had a previous
conviction for assault on a household member, was true, in prosecution for assault
on a household member; stipulation from officer who arrested defendant for
previous assault established that officer was familiar with defendant and his
former wife, that they were married at the time defendant committed his previous
assault, and defendant showed no evidence of surprise or prejudice. Collesano v.
State (App. 1 Dist. 2002) 2002 WL 2026055, Unreported, petition for discretionary
review refused. Sentencing And Punishment 1381(3)
Evidence that defendant punched and kicked victim repeatedly after victim told
defendant to leave her ex-husband's apartment was legally sufficient, in
prosecution for assault with bodily injury, to show that defendant intentionally
attacked victim. Wilhite v. State (App. 2 Dist. 2003) 2003 WL 21666691,
Unreported. Assault And Battery 91.7
Under Texas law, gas station owner and police officer's alleged insistence that
customer siphon ten gallons of gasoline out of his vehicle by mouth resulted in
bodily injury sufficient to support claim for assault and battery against officer,
where activity allegedly caused customer's eyes to water constantly, and made his
mouth, tongue, throat, and stomach burn. Hutchison v. Brookshire Bros., Ltd.,
E.D.Tex.2002, 205 F.Supp.2d 629. Assault And Battery 2
Police officers' testimony that defendant kicked them, causing them pain, was
sufficient to find that defendant inflicted "bodily harm" on officers, and was
sufficient to support assault convictions. Letson v. State (App. 14 Dist. 1990)
805 S.W.2d 801. Assault And Battery 91.10(1)
State need not prove ability to commit battery for defendant to be convicted of
assault. De Leon v. State (App. 13 Dist. 1993) 865 S.W.2d 139. Assault And Battery
50
Finding that "bodily injury" element of assault charge had been proven was
supported by police officer's testimony that defendant jumped on officer's back
and hit officer in head with her fists as officers attempted to place defendant's
father under arrest, even though there was no direct evidence that defendant's
blows caused officer physical pain or impairment. Wawrykow v. State (App. 9 Dist.
1993) 866 S.W.2d 96. Assault And Battery 91.10(1)
Defendant's repeated verbal threats to kill police officer and defendant's violent
conduct consisting of kicking, biting and attempting to take officer's holstered
gun satisfied threat of imminent bodily injury requirement for assault conviction.
Lister v. State (App. 12 Dist. 1994) 894 S.W.2d 771, petition for discretionary
review refused. Assault And Battery 48
There was sufficient evidence that defendant caused bodily injury to peace officer
by striking him with his hand and fist and pushing him to support conviction for
aggravated assault of peace officer, where it was unrefuted that peace officer
suffered contusions on his head and face, large bruises on leg and physical pain
as result of struggle with defendant, and officer testified that he arrived at
defendant's premises in full police uniform to settle domestic dispute, and that
defendant initiated struggle when officer tried to arrest him. Hernandez v. State
(App. 2 Dist. 1995) 903 S.W.2d 109, rehearing overruled, petition for
discretionary review refused. Assault And Battery 91.10(1)
There was factually sufficient evidence that defendant caused physical injury to
officer during scuffle, after defendant attempted to flee, to support conviction
for assaulting a public servant; evidence included officer's written report that
his fingers were injured when defendant rushed at him and testimony that officer
was unable to use fingers for three to four days. Bryant v. State (App. 10 Dist.
2001) 47 S.W.3d 80, petition for discretionary review refused. Assault And Battery
91.10(1)
Evidence that defendant pushed victim down, hit her several times with his closed
fist, and stomped on her back was sufficient to support conviction of misdemeanor
causing bodily injury to another, where variance between information and proof at
trial resulting from inclusion in information of surplus language identifying
victim as family member of defendant, was not material. Wilson v. State (App. 12
Dist. 2003) 113 S.W.3d 785. Assault And Battery 91.7
Evidence was legally and factually sufficient to support finding that defendant
caused bodily injury to victim, as required to support assault-family violence
conviction; photographs showed victim with two scrapes down her chest, right above
her breasts, such photographs were taken by officer the same morning that the
scrapes occurred as victim resisted defendant's efforts to force her into his
vehicle by grabbing her arm, and victim told the jury she received the two scrapes
when she tried to pull away from defendant. Gomez v. State (App. 12 Dist. 2005)
183 S.W.3d 86. Assault And Battery 91.8
Evidence was factually sufficient to support conviction for assault with bodily
injury, where defendant admitted that she struck victim with fist after victim
told her she needed to leave her ex-husband's apartment, and ex-husband testified
that after he dragged defendant from apartment, defendant was yelling, "How can
you be with her? What happened to us? I thought we were happy." Wilhite v. State
(App. 2 Dist. 2003) 2003 WL 21666691, Unreported. Assault And Battery 91.7
Police officer's testimony that defendant had choked victim by the neck until she
urinated on herself, pictures showing bruising around victim's neck as well as a
scratch behind her ear and a bruise on her chest, and evidence that defendant had
fresh scratches on the inside of his wrists was legally sufficient to support
assault conviction. Eck v. State (App. 1 Dist. 2004) 2004 WL 1171978, Unreported,
petition for discretionary review refused. Assault And Battery 91.2
Evidence was legally and factually sufficient to support conviction for assault
against a public servant; record indicated that defendant cursed officer and
repeatedly hit him about the face and head after officer gave defendant traffic
ticket and that officer suffered minor cuts and bruises in the struggle to subdue
defendant, and officer testified that the blows were painful. Owens v. State (App.
12 Dist. 2004) 2004 WL 1416286, Unreported. Assault And Battery 91.10(1)
Evidence was sufficient to support finding that firearm defendant used and
exhibited while threatening victim was a deadly weapon by design or per se, as
required to support aggravated assault conviction; victim identified the weapon as
a black revolver, defendant admitted she hid a gun in the closet, search of closet
revealed a .22 revolver, while defendant claimed that gun she used to threaten
victim was a BB gun, victim testified that the revolver defendant used to threaten
him did not appear to be a BB gun, and the .22 revolver was consistent with
victim's description of the firearm. Tidwell v. State (App. 6 Dist. 2006) 187
S.W.3d 771, petition stricken. Assault And Battery 91.6(3)
Evidence, that accused at point of pistol held complaining witness awaiting the
arrival of officers, was insufficient to support a charge of assault by striking
with the pistol. Arbetter v. State (Cr.App. 1916) 79 Tex.Crim. 487, 186 S.W. 769.
Assault And Battery 80
Evidence that as plaintiff started toward car after going to apartment building to
see friend who was not at home, employee of patrol company stopped him and asked
for identification, frisked and handcuffed plaintiff's hands behind his back, took
plaintiff before woman for possible identification, pulled pistol out and told
plaintiff to get in car and shut up, shoved plaintiff onto floor of back seat of
the employee's automobile and locked him inside the automobile for 15 or 20
minutes until police arrived, and that plaintiff suffered from loss of sleep so
severe that he felt it caused him to lose his job sustained jury finding that the
employee committed assault and battery on plaintiff and falsely imprisoned
plaintiff causing compensative damage. Levine v. Enlow (Civ.App. 1970) 462 S.W.2d
50. Assault And Battery 35; False Imprisonment 31
In action in which customer sought to recover against retail store for false
imprisonment and assault after store security agent arrested customer for
destruction of private property, breach of the peace and interfering with lawful
arrest, evidence that security guard grabbed customer by the arm while arresting
him was sufficient to support finding that an assault was committed. Moore's, Inc.
v. Garcia (Civ.App. 1980) 604 S.W.2d 261, ref. n.r.e.. Assault And Battery 35
Evidence in prosecution for assault on public servant was sufficient to show that
police officer, who was outside his jurisdiction, was lawfully discharging an
official duty by attempting to arrest defendant when defendant assaulted him, as
officer, who was in uniform, was recognizable as public servant, and officer had
probable cause to arrest defendant. Hoitt v. State (App. 6 Dist. 2000) 28 S.W.3d
162, petition for discretionary review granted, petition for discretionary review
dismissed with per curiam opinion 65 S.W.3d 59, rehearing on petition for
discretionary review denied. Assault And Battery 91.10(2)
There was sufficient evidence that person defendant injured was a police officer,
so as to support conviction for assault on a public servant; evidence showed that
victim and his partner were on duty, working patrol, and wearing uniforms when
they were dispatched to a reported disturbance. Evans v. State (App. 14 Dist.
2002) 2002 WL 1822436, Unreported, petition for discretionary review refused.
Assault And Battery 91.10(2)
Evidence was legally and factually sufficient to support conviction for assault on
a public servant; police officer testified that while struggling to arrest
defendant, he suffered scrapes on his hands and arms as a result of being struck
by defendant. Goodacre v. State (App. 12 Dist. 2002) 2002 WL 1902229, Unreported.
Assault And Battery 91.10(1)
Evidence that assault victim identified defendant as her common law husband and
that defendant had prior family-assault conviction for assaulting same victim was
factually sufficient to support conviction for assaulting family member, despite
physician's statement based on notes that he "believed" that victim had referred
to defendant as her "boyfriend." Hudson v. State (App. 14 Dist. 2005) 2005 WL
2149295, withdrawn and superseded 179 S.W.3d 731. Assault And Battery 92(2)
Evidence that victim told police officers that defendant was her common-law
husband was factually sufficient to establish that defendant was member of
victim's family, so as to support conviction for assault of family member, even
though victim was intoxicated at time she spoke with police, and physician
testified that he "believed" victim referred to defendant as her "boyfriend."
Hudson v. State (App. 14 Dist. 2005) 179 S.W.3d 731. Assault And Battery 91.8
Evidence that defendant pointed gun at police officer was sufficient to sustain
conviction of using deadly weapon to assault officer; proof of verbal threats was
unnecessary. Preston v. State (App. 5 Dist. 1984) 675 S.W.2d 598, petition for
discretionary review refused, certiorari denied 106 S.Ct. 389, 474 U.S. 982, 88
L.Ed.2d 341. Assault And Battery 91.10(1)
Evidence was legally sufficient to support finding that defendant pointed a gun at
police officer, in prosecution for aggravated assault with a deadly weapon upon a
police officer; police officer testified that he saw defendant turn towards his
partner with a gun in his hands, and that defendant was pointing the gun at police
officer's partner. (Per Walker, C.J., with one justice concurring). Edwards v.
State (App. 9 Dist. 2001) 57 S.W.3d 677, petition for discretionary review
refused. Assault And Battery 91.10(1)
Evidence did not support finding that hospital committed an assault by drawing
defendant's blood following defendant's motorcycle accident without obtaining his
consent, and thus statutory exclusionary rule did not require results of blood
test to be suppressed for purposes of driving while intoxicated (DWI) prosecution;
defendant made no attempt to argue or explain how the hospital knew or should have
reasonably believed that he would have regarded the physical contact involved in
the drawing of blood as offensive or provocative, as no evidence existed that
defendant indicated to any hospital personnel that he did not want his blood
drawn. Mayfield v. State (App. 5 Dist. 2003) 124 S.W.3d 377, rehearing overruled,
petition for discretionary review refused. Automobiles 411
Evidence was sufficient to show that defendant threatened victim with imminent
bodily injury, as required for conviction for aggravated assault, even though
victim did not testify; two eyewitnesses testified that defendant held gun in his
hands and demanded money while walking in and out of bedroom where victim was
located. Sosa v. State (App. 1 Dist. 2005) 177 S.W.3d 227. Assault And Battery
91.6(3)
Evidence was sufficient to support finding that education assistant was a public
servant discharging a public duty when she attempted to assist teacher in
restraining juvenile who made threatening motions after being asked to obey
classroom rules, thus supporting delinquency adjudication for assault on a public
servant; assistant was employed by school district, and assistant responded to
juvenile's unruly and potentially threatening behavior by attempting to restrain
him until he calmed down. In re J.L. O. (App. 3 Dist. 2002) 2002 WL 1804951,
Unreported. Infants 153
Evidence that defendant said he had something for the victims and that they didn't
know what they were getting themselves into and then pointed a gun at them was
sufficient to support conviction for aggravated assault. Wegner v. State (App. 1
Dist. 2006) 2006 WL 727707, Unreported. Assault And Battery 92(3)
Evidence was legally sufficient to support finding that victim was a public
servant, as required to support conviction for assault on a public servant; record
showed that victim was a mental health liaison who was employed by university
medical center with the official duty of interviewing inmates at her assignment in
psychiatric unit of Department of Criminal Justice, Institutional Division (TDCJ),
witness testified that witness worked at same unit and that she and victim worked
in same office, another witness testified that he found victim in the unit, and
defendant admitted going to the "psych" unit to request a transfer. Buster v.
State (App. 12 Dist. 2004) 144 S.W.3d 71, rehearing overruled. Assault And Battery
91.10(2)
Evidence was sufficient to establish that defendant knew that individual was peace
officer as required to support conviction for aggravated assault on a public
servant; deputies were wearing their uniforms and badges when they knocked on
defendant's door, identified themselves as law enforcement officers, and entered
house when the door was opened, and prior to aggravated assault, deputies also
explained to defendant that they were there to arrest him on warrant. Dunklin v.
State (App. 12 Dist. 2006) 2006 WL 1119304. Assault And Battery 92(2)
One was not entitled to a charge on simple assault, in that he only used his hands
and feet, where he helped one who was using a knife. Cukierski v. State (Cr.App.
1913) 68 Tex.Crim. 367, 153 S.W. 313. Assault And Battery 96(1)
Court's charge on assault should only submit whether defendant was guilty of
assault in manner and by means set forth in indictment or information. Martin v.
State (Cr.App. 1930) 115 Tex.Crim. 618, 28 S.W.2d 140. Assault And Battery 96(1)
Since defendant testified that he deliberately struck injured party with beer
bottle, he was not entitled to a charge on this section relating to the causing of
physical contact when one knows or reasonably should believe that the other will
regard contact as offensive and provocative. Eanes v. State (Cr.App. 1977) 546
S.W.2d 312. Assault And Battery 96(1)
Jury instruction containing statement that a mental health liaison was a public
servant did not deprive defendant of the right to a finding beyond reasonable
doubt on all elements of offense of assault on a public servant; statement was a
correct statement of law under facts of case, and State was still required to
prove that victim was a mental health liaison. Buster v. State (App. 12 Dist.
2004) 144 S.W.3d 71, rehearing overruled. Assault And Battery 48; Assault And
Battery 96(1)
Defendant's testimony that he neither assaulted police officer nor resisted arrest
did not warrant instruction on the lesser-included offense of resisting arrest, in
prosecution for assault on a public servant. Lofton v. State (Cr.App. 2001) 45
S.W.3d 649. Criminal Law 795(2.30)
Defendant, who did not object to charge, suffered egregious harm as result of
erroneous jury charge in which the state told the jury that it did not have to
agree whether defendant committed assault by threat or bodily injury assault; the
evidence was contested, and some jurors could have believed defendant and
determined that she did not intend to threaten or injure victim, but concluded
that her conduct in driving so close to victim was reckless and resulted in his
injury. Dolkart v. State (App. 5 Dist. 2006) 2006 WL 2062896. Criminal Law
1038.1(3.1)
Rule that trial court's refusal to limit definitions of culpable mental states to
aspect relating to result of conduct had little or no application to prosecution
for assault with bodily injury; jury charge would not have misled anyone into
believing that defendant could be convicted if he intentionally or knowingly
engaged in conduct without intending result. Schumacher v. State (App. 3 Dist.
1991) 814 S.W.2d 871. Assault And Battery 96(1)
In harmless error analysis, the Court of Appeals reviews the record for actual,
not just theoretical, harm to the accused. Mendenhall v. State (App. 10 Dist.
2000) 15 S.W.3d 560, rehearing overruled, petition for discretionary review
granted, affirmed 77 S.W.3d 815. Criminal Law 1165(1)
Jury charge in assault against public servant, which incorporated second type of
assault against a public servant, was improper, where indictment only charged
defendant with one type of assault against public servant. Sherman v. State (App.
6 Dist. 2000) 20 S.W.3d 96. Criminal Law 814(20)
Where the evidence showed beyond doubt that serious bodily injury was inflicted,
the court properly refused to charge on simple assault. Solis v. State (Cr.App.
1915) 76 Tex.Crim. 230, 174 S.W. 343.
Where defendant testified that the shooting was done with no intent to kill but
only to scare the injured party and another person he believed to be in the house,
and that before and after the shooting he had ample opportunity to kill the
injured party had he so desired and the evidence failed to show that the discharge
of the gun by the defendant inflicted any serious bodily injury on the injured
party, the jury should have been instructed on the issue of simple assault as it
was raised by the evidence. Brown v. State (Cr.App. 1950) 155 Tex.Crim. 233, 233
S.W.2d 578. Assault And Battery 96(1)
Where evidence showed that employee struck supervisor in face with iron bar when
informed that he had been fired, charge on simple assault was not required. Watson
v. State (Cr.App. 1965) 386 S.W.2d 803. Assault And Battery 96(1)
Defendant who was shown to have been with a group of boys driving around in
attempt to find the person stabbing defendant's friend and who shot into crowd,
fatally wounding a person, after driver backed vehicle to where the crowd stood,
was not entitled to simple assault instruction. Smith v. State (Cr.App. 1967) 418
S.W.2d 683. Assault And Battery 96(1)
Application paragraph of jury charge in trial for assault with bodily injury
correctly stated requisite mental state, where it required that jury find beyond
reasonable doubt that defendant intentionally, knowingly, or recklessly caused
bodily injury to victim by pushing her, and thus fact that definitions in charge
permitted conviction of defendant for simply intentionally or knowingly pushing
victim was not harmful. Zuliani v. State (App. 3 Dist. 2001) 52 S.W.3d 825,
petition for discretionary review granted, reversed 97 S.W.3d 589, on remand 2003
WL 21023105. Assault And Battery 96(1); Criminal Law 1172.1(3)
Court is not required to give charge on simple assault unless there is some doubt
that greater offense of aggravated assault has been committed. Watson v. State
(Cr.App. 1965) 386 S.W.2d 803. Assault And Battery 96(1)
Defendant who was convicted of aggravated assault was not entitled to charge on
simple assault where physician testified that weapon was capable of causing death
and could be a deadly weapon through the manner of its use, where he further
testified that stab wound was six inches long, penetrated through cartilage of rib
cage, and required approximately 30 stitches to close, and where defendant offered
no evidence that knife was not used in such manner as to render it a deadly
weapon. McElroy v. State (Cr.App. 1975) 528 S.W.2d 831. Assault And Battery 96(1)
In prosecution for aggravated assault, trial court did not err in submitting to
jury issue of lesser included offense of simple assault which omitted culpable
mental state of recklessness from charge where particular theory of reckless
assault was not raised by evidence consisting of defendant's testimony that
slapping victim was only playful gesture. Sanford v. State (Cr.App. 1982) 634
S.W.2d 850. Assault And Battery 96(1)
There was no proof of either simple assault or reckless conduct, as required for
instruction thereon, as lesser included offense of aggravated assault on a police
officer, where State made proof that peace officer was stabbed with a knife by
defendant and defendant denied any assault whatsoever on the officer and denied
having a knife. Redmon v. State (App. 9 Dist. 1988) 748 S.W.2d 531. Criminal Law
814(20)
Juvenile court did not err in refusing to instruct jury on simple assault as
lesser included offense of aggravated robbery where there was no evidence in
record that, if juvenile was guilty of injuring robbery victim, he was guilty of
inflicting only bodily injury and not serious bodily injury; victim died of
subdural hemorrhage in brain after juvenile and his companions "jumped" him and
kicked him in the head. Matter of S.D.W. (App. 1 Dist. 1991) 811 S.W.2d 739.
Infants 203
Jury charge on assault of a family member should have contained the statutory
definitions for consanguinity and affinity. Hudson v. State (App. 14 Dist. 2005)
2005 WL 2149295, withdrawn and superseded 179 S.W.3d 731. Criminal Law 772(2)
Defendant's actions caused serious injury, and thus jury instruction on lesser-
included offense of misdemeanor assault was not warranted on aggravated assault
charge arising from bar altercation in which defendant hit victim in mouth with
full beer bottle and victim fell straight back, hit his head on floor, and died at
scene; defendant's expert conceded that victim suffered serious bodily injury
simply from impact by bottle, and evidence reflected that victim would not have
died but for blow from beer bottle causing him to fall back and hit his head.
Ferrel v. State (Cr.App. 2001) 55 S.W.3d 586, on remand 2002 WL 480594. Assault
And Battery 96(1)
In prosecution for robbery, where the testimony of the injured party showed a
robbery by assault and the defendant by his testimony denied having committed any
assault upon the injured party, the issue of simple assault was not raised, and
there was no error in the court's refusal to charge the jury on simple assault.
Curtis v. State (Cr.App. 1959) 167 Tex.Crim. 536, 321 S.W.2d 587. Assault And
Battery 96(1)
Evidence including testimony that as defendant was being forced into sheriff's
automobile he placed his hand over defendant's face and put fingers into her mouth
and that she bit in self-defense entitled defendant to self-defense instruction.
Banker v. State (Cr.App. 1967) 413 S.W.2d 393. Assault And Battery 96(3)
Jury instruction in civil assault case, asking whether jury believed an assault
was committed, was improper, where, as worded, instruction failed to instruct the
jury that they were to find that no assault had been committed if they believed an
assault was committed but that it was committed in self-defense or was justified.
Gibbins v. Berlin (App. 2 Dist. 2005) 162 S.W.3d 335. Assault And Battery 43(2)
Evidence was legally sufficient to support finding that assault victim was a
member of defendant's household; in weeks preceding assault, victim lived with
defendant and his mother at mother's house, and did not have access to other
apartment where she had lived. Manning v. State (App. 14 Dist. 2003) 112 S.W.3d
740, petition for discretionary review refused. Assault And Battery 48
43. Findings
Although better practice would have been for trial court to make and enter
required family violence finding in the judgment for previous conviction of
assault involving family violence, in absence of such state could enter extrinsic
evidence of defendant's previous conviction involving family violence in
subsequent prosecution for assault of a family member. State v. Eakins (App. 3
Dist. 2002) 71 S.W.3d 443. Assault And Battery 83(1)
Trial court's order, granting defendant's plea in bar and suppressing evidence
that victim in previous assault conviction was a family member, was appealable in
present case against defendant, who was indicted on charges of assault on a
household member; order effectively negated enhancement paragraph of the current
indictment, and thus the felony indictment itself, as the charged offense would be
a misdemeanor without the enhancement. State v. Cagle (App. 14 Dist. 2002) 77
S.W.3d 344, petition for discretionary review refused. Criminal Law 1024(1)
Family violence finding could not increase defendant's sentence such that jury
rather than trial court was required to make the finding, in prosecution of
defendant for assault; finding would have impacted defendant's sentence only if he
had previously committed a family-violence assault, State did not attempt to prove
that defendant had previously been convicted of an assault involving family
violence, and additional requirements that defendant was ordered to perform, such
as attending a batterer's intervention program, only were conditions of probation,
and trial court could impose any reasonable condition on probation. Butler v.
State (App. 2 Dist. 2005) 162 S.W.3d 727, petition for discretionary review
granted, affirmed 189 S.W.3d 299. Jury 34(7)
Sentence of 60 years' imprisonment for assault on a public servant was not grossly
disproportionate in violation of Eighth Amendment prohibition against cruel and
unusual punishment; sentence was within range of punishment, evidence was
presented regarding defendant's previous violent felonies, and jury found both
enhancement paragraphs for felony convictions in state to be true. Buster v. State
(App. 12 Dist. 2004) 144 S.W.3d 71, rehearing overruled. Sentencing And Punishment
1485
45. Review
Trial court's pre-trial rulings did not contain error in prosecution for
assaulting a public servant, where record reflected that court did not make any
ruling adverse to defendant; record reflected that court heard defendant's
discovery motion regarding production of videotape from arresting officer's squad
car and any audiotape of emergency call made by convenience store clerk, state
responded that it had no such evidence in its custody or control, and court ruled
it would permit defendant to subpoena any relevant videotapes or audiotapes for
trial. Gearhart v. State (App. 13 Dist. 2003) 122 S.W.3d 459, petition stricken,
petition for discretionary review refused. Criminal Law 627.6(3)
Defendant's "in pari materia" claim in prosecution for felony aggravated assault
relating to alleged hazing incident as part of victim's initiation into college
fraternity, that defendant had due process right to be prosecuted under hazing
statute because it was special statute that irreconcilably conflicted with assault
statute, was not cognizable in application for pretrial writ of habeas corpus,
because claim was not ripe for review; State had not had opportunity to develop
complete factual record during trial, and it was apparent that State had more
evidence to present, about which reviewing court could only speculate. Ex parte
Smith (Cr.App. 2006) 185 S.W.3d 887, rehearing denied. Habeas Corpus 275.1
46. Jury
Trial court committed no error during venire examination of jurors in prosecution
for assaulting a public servant; although review of voir dire examination showed
that 16 venire members knew prosecutor or his family, they all indicated they
would consider facts of case and not base their decision on their knowledge of
prosecutor or his family, neither state nor defendant raised challenge for cause,
and court did not limit defendant's questioning of jury. Gearhart v. State (App.
13 Dist. 2003) 122 S.W.3d 459, petition stricken, petition for discretionary
review refused. Jury 91; Jury 131(4)
� 2006 Thomson/West
END OF DOCUMENT