D is charged in three counts: Attempt cap murder of a peace officer, Agg assault DW on a public servant and agg assault public servant-sbi-dw. My Judge is considering not submitting all to the jury because she believes that the agg counts mutually exclude. It seems to me that they don't exclude-the difference is that one is bi and one sbi. Isn't agg assault bi a "lesser" of agg assault sbi, in that if the jury found mere bi they could still convict? Can we not submit the charge hierarchically? Att Cap Murder; if you do not find or have a reas. doubt thereof: agg asslt sbi-dw; if you do not find or have a reas doubt thereof: agg asslt dw?

I believe that the two different theories of agg assault should be submitted as paragraphs so that the jury wou;dn't have to agree on which way he committed the aggravated assault. See Basalo v. State, 1999 WL 1012971 (Tex.App.-Dallas 1999, no pet.) (not published)("Appellant's indictment for aggravated assault contained three paragraphs, each charging appellant under a different theory of aggravated assault. The first and third paragraphs charged that appellant committed aggravated assault by causing bodily injury to his wife while using or exhibiting a deadly weapon. The first paragraph alleged the deadly weapon was a baseball bat; the third paragraph alleged the deadly weapon was a knife. The second paragraph charged that appellant committed aggravated assault by causing serious bodily injury to his wife by striking her with a baseball bat. At the close of evidence, the trial court recognized that the State had not presented evidence that Mrs. Basalo suffered a serious bodily injury and did not include that theory in the application paragraph of the jury charge. Therefore, the application paragraph of the jury charge authorized the jury to convict appellant of aggravated assault if it found that he had caused bodily injury to Mrs. Basalo by striking her with a baseball bat and that he used or exhibited the baseball bat as a deadly weapon. Similarly, the application paragraph allowed the jury to convict appellant if it found that he had caused bodily injury to Mrs. Basalo by stabbing her and that he used or exhibited the knife as a deadly weapon. Appellant did not object to the jury charge.
An indictment may contain alternate pleadings of differing methods of committing an offense. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). And while those differing methods may be charged in the conjunctive, the jury may be charged in the disjunctive. Id. The jury may return a general verdict of guilty even if different methods of committing one offense are submitted to the jury in the disjunctive. Id.");
Wade v. State,2001 WL 1431220 at *3 n.3(Tex.App.--Tyler Nov. 14, 2001, pet. ref'd) (no published) ("Because we have concluded that the evidence is legally sufficient to sustain Appellant's conviction for aggravated assault under section 22.01(a)(1), we are not required to address Appellant's contentions concerning the charge under section 22.01(a)(2). See Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991) (holding that
when a jury returns a general verdict of guilty from a jury charge containing alternative theories of committing the same offense, the verdict stands if the evidence supports any of the theories charged.").

This all assumes that the crime was one transaction.

As to the attempted capital murder, even if there were a double jeopardy problem with a conviction for both att cap mur and agg assault (and I guess there is) the solution would just be to delete the less serious conviction. Landers v. State, 957 S.W.2d 558, Tex.Crim.App. 1997).

I agree with Merrit. We just recently had an Agg. Assault and had both the SBI and BI w/DW charges.

We break until Monday when the injured officer testifies. Thanks for the help

We are waiting for the punishment verdict. We submitted att. capital and an agg assault public servant count asking do you find the d intentionally or knowingly caused bi or sbi to a public servant in the lawful discharge of official duties and used or displayed a deadly weapon? Got the att cap murder verdict in about an hour....two hours and counting on punishment.

77 years. Second best part of the trial? Seeing the d's girlfriend, friend and sister hauled off to jail yesterday for active traffic warrants. The girlfriend had perjured in the trial and she and the friend had cheered on the scene at the sight of the deputy being carried on a gurney to the ambulance. The girlfriend had yelled that she hoped he died. Her warrants were capias and may only be served by time...all round a good day for the good guys.

Good work! Wonder how the jury got to 77? That's a number I've not seen before.

One of the jurors told a reporter that the beginning range was 70-99. At least 77 is not divisible by 12......