Let's say your defendant has been indicted for injury to a child. As you get closer to trial you send the defense notice that the State will be seeking a deadly weapon special issue. There's not enough time to have the case reindicted for aggravated assault with a deadly weapon. Since the defense is on notice for the elements of 1)intentionally or knowingly causing bodily injury, 2)the victim being less than 14, and 3)the deadly weapon, can you present in the charge the "lesser included" of aggravated assault with a deadly weapon which only requires elements 1 and 3 above? There is a case or two that discusses CCP 37.09 and says a "lesser included" does not have to have a lesser punishment. But I can't find a case that specifically says you can pursue a higher level crime that the defendant was not indicted for, if the defense is on notice for all the elements. Anyone have any advice or try this before?

[This message was edited by M&M on 08-07-08 at .]

Aggravated assault is a separate offense. Check the ending to the Penal Code provisions that talk about injury to a child. It is one of the few offenses that specifies that the State may prosecute the defendant for other similar though separate crimes (such as aggravated assault) and not violate double jeopardy concerns. That's why our courts have OK'd convicting a defendant for capital murder and injury to a child in the same trial.

By the same token, that makes them separate offenses and one not a lesser included offense to the other. So, no, you can't surprise the defendant with a charge of aggravated assault based on notice he will be facing trial for injury to a child.

I see. So then I assume he could be tried separately for aggravated assault at a later date? It sounds like they have to run concurrently, but if that's the case it seems like it's a good way of getting a second shot without violating double jeopardy in case the State loses the first time. Also, if the D is convicted the first time around but the State is displeased with the sentence, they could pursue the agg. assault in hopes of a higher (albeit concurrent) sentence. Let me know if my take on that sounds right. Thanks for the assistance.

You shouldn't assume that a second trial would not violate double jeopardy. In the cases approved by appellate courts, there has been a single trial with consolidated charges, leading to concurrent sentences. Under that scenario, there may not be double jeopardy concerns, as there is only one trial leading to multiple, concurrent sentences.

Additional constitutional issues arise from multiple trials or separate, stacked sentences.

The best practice would be to have a single trial with multiple counts, alleging every variation of injury to a child and aggravated assault (or murder or capital murder) in a single indictment.

If "element" 3 had been alleged in the indictment, even though it is not an element of injury to a child but merely a "3g" allegation, then I would say that the indictment alleged both offenses, so that the State could abandon the age of victim allegation and prosecute for the assault.

I still think injury to a child is really just an aggravated ("greater") form of assault under 22.01 (much like the age of the victim plays a role in aggravating sexual assault). Your real problem is that Brooks does not permit the State to add "elemental" allegations to the indictment without action by the Grand Jury, and the use of the deadly weapon is actually an element of the 22.02 offense.

To me, this analysis also explains why you could not place someone in jeopardy for injury to a child and then later try them for assault of the same child (i.e., the same bodily injury caused in the same way). I have not attempted to see if any courts agree with any of these thoughts.

Don't think you can do that - Hall v. State, 225 SW3d 524, has good discussion regarding lessers. The ultimate question does not lie in the evidence as much as the elements of the offense as indicted to the elements of the offense that is requested.