January 24, 2020

Texas Courts of Appeals

Wade v. State

No. 03-18-00712-CR         1/16/20


Is a defendant’s testimony about the severity of the victim’s injury sufficient evidence to entitle him to a lesser-included instruction on assault–bodily injury rather than the charged offense of aggravated assault–serious bodily injury?


Yes. The court concluded the defendant’s testimony raised the lesser offense of assault when he said that, in his opinion, the victim did not sustain serious bodily injury when the defendant bit off the victim’s earlobe, which could not be reattached surgically. Courts have determined that victims are qualified to express an opinion regarding the seriousness of their injury, and the court concluded in this case that an alleged offender can provide similar testimony regarding an injury that he observes and admits that he directly caused. Read Opinion.


Some readers will find this opinion hard to swallow. The defendant bit off the victim’s earlobe. The injury was irreparable. The victim still suffered pain at the time of trial and testified that the injury disfigured him. The defendant testified that the injury was not serious and that the victim’s disfigurement was difficult to notice. Prosecutors and trial judges should not analyze these issues based on the strength of the evidence supporting the lesser-included offense. It will come back and bite you on appeal. Rather, analyze whether evidence raises a lesser-included offense by whether it logically raises the lesser. Here, the State’s evidence proved SBI. But the defendant testified it was not SBI. Viewed logically, “not SBI” contradicts “SBI” and requires submission of the lesser-included offense. Arguments about the strength of the defendant’s “not SBI” claim should be reserved for the jury. That said, there is an appellate argument that the court of appeals did not address in this case—whether the defendant’s testimony made simple assault a “valid, rational alternative” to the charged offense. See, e.g., Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012). Prudent prosecutors should not, however, use the “valid, rational alternative” argument to oppose a lesser-included instruction at trial—save it for when you are briefing a case on appeal where, in hindsight, you wish the lesser-included instruction had been given.