Monday, November 15, 2010

One is “Ouch,” the Other is “Yuck.”

Last week, in McKithan & Welsh v. State, the Texas Court of Criminal Appeals held that, under the cognate pleadings approach to one-step lesser-included-offenses (see Hall v. State, 225 S.W.3d 525), offensive contact assault IS NOT an LIO of bodily-injury assault.  Writing for the majority (there were no dissenters, but some judges concurred), Judge Hervey penned a 19-page history on the evolution of Texas’ approach to LIOs.  I found the opinion long and not particularly interesting.

Apparently, I was not alone.  Attempting to wade through the mess of the majority opinion, Judge Cochran wrote a concurring opinion (joined by Judge Holcomb), wherein she simplified the issues and holding.  Here’s her view of the case:

I think that these cases might be more easily addressed if we rephrased the appellants’ grounds for review as follows: Does proof of a bodily-injury assault by kicking (or the use of “physical force and violence” in an aggravated sexual assault) necessarily require proof that the defendant intentionally caused physical contact with the victim that the defendant knew or reasonably should have known that the victim would regard as offensive or provocative? Of course not. Physical harm and physical force are entirely different concepts from mental or moral offensiveness.  One damages the body, the other damages the mind, emotions, or sense of well-being.  One is the intent to cause a physical injury, the other is the intent to cause a psychic injury.  One is “ouch,” the other is “yuck.”
Takeaway:  Assault by offensive contact is not a lesser-included offense of Assault by bodily injury.  The legislature intended to create completely separate theories of criminal conduct when it drafted sections 22.01(a)(3) and 22.01(a)(1).