Should two separate assaults have been alleged in Johnson, one causing bodily injury by use of hand and another threatening imminent BI by glass (DW)? Or is the problem in how 22.02(a)(2) is worded? This construction of the statute can really get interesting in the multiple assailant, multiple blow scenarios. This ruling also seems to place a lot more importance on what offenses are continuing in nature for purposes of "use" of deadly weapons.
Let me clarify my concern, because I really am interested to know if anyone else shares it. This opinion divides an assault into independent segments according to how the manner and means of an assault is alleged (and then says each separate strike with a hand was a separate assault).
But assaultive conduct could, I believe, include a series of events as the State argued. If an indictment said "caused bodily injury by hitting in the head, kicking, poking, shoving, and scratching," how many assaults have been alleged? And, many assaults involve both bodily injury and serious bodily injury arising from different actions (causes).
It seems to me that the State very narrowly escaped an acquittal in Johnson--not from any difficulty in its proof, but from how the offense was alleged. The indictment unnecessarily narrowed the scope of the assaultive conduct on trial or failed to allege all of the assaults (or Chief Justice Gray was correct in noting his disagreement).
I agree, this is starting to get into hazy territory. I would think that defense attorneys would be against this interpretation -- why shouldn't the State just charge a defendant with four different offenses from now on instead of alleging four different manner and means of the assault in a single offense?
I think that this is another example of the appellate courts expecting much higher legal reasoning out of a jury than they should. Ordinary people don't pick things apart this way, and it's just asking for trouble to treat it that way.
Posts: 1115 | Location: Waxahachie | Registered: December 09, 2004
I'm the appellate attorney on Davenport. I just got a motion for rehearing on that very issue this morning. The motion tries to make a big deal of the fact that the CoA mentions the assaults were separated by time, and obviously a single assault can take place over a long period of time.
However, in Davenport, the two assaults were separated by time, distance, and manner and means, with substantial unassaultive conduct between the two of them.
It may be how many angels can dance on the head of a pin, but at least it's not determining whether light is a wave or a particle.
A more definitive answer to my initial question may be forthcoming in Barrett's case, PD-1362-18. There the CCA ordered review on its own motion of this question: “Do multiple physical injuries inflicted in a single attack constitute separately actionable crimes of assault or are they part of a single assault?” The SPA argues that each discrete injury should be subject to prosecution as a separate assault, noting that making the unit of prosecution for assault all the harm suffered in a single transaction creates a perverse incentive for the actor to inflict more harm of the same degree.