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: 1116 | 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.
False alarm. All we learn for sure is that Irving’s analysis is faulty because the manner and means of committing an aggravated assault is not the unit of prosecution. Answer to the posed question not necessary in Barrett. Barrett
Under Brown, separate types of injury seem to be the key.
“If the focus of the offense is the result—that is, the offense is a ‘result-of-conduct’ crime—then different types of results are considered to be separate offenses. . . .” Gonzales v. State, 304 S.W.3d 838, 848 (Tex. Crim. App. 2010) (quoting Huffman v. State, 267 S.W.3d 902, 907 (Tex. Crim. App. 2008)). Thus, a defendant may be held criminally responsible for two or more result-of-conduct offenses, even if they occur during the same transaction, so long as each offense causes a different type of result. See Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007).
Brown [could be] convicted of two separate and distinct offenses even if Brown’s physical attack of the complainant is construed as a continuous course of conduct."
It seems the holding in Gunter is not inconsistent with Brown because multiple stabs with the same weapon produce the same "type" of result and "causing bodily injury" has a broad focus/meaning. Perhaps the original question has been answered. But I presume the SPA might again seek to have the "perverse incentive" analysis it urged in Barrett applied. So far, only the decision on preservation of the error has been urged (without success). GunterThis message has been edited. Last edited by: Martin Peterson,
The Barrett claim was not revived and the PDR in Gunter was refused. So, it provides the best guidance available. Does this have any implications regarding claims about the use of force for self-defense through repeated use of the same weapon?