As the judges saw it, criminal law
May-June 2022

A question of ‘seriousness’ for the jury

By Clint Morgan
Assistant District Attorney in Harris County

In Monty Python and the Holy Grail, King Arthur cuts off the Black Knight’s arm, but the latter declares, “It’s just a flesh wound.” Imagine if, among the other charges he faced at the end of the movie, Arthur was tried for aggravated assault of the Black Knight. Would the Black Knight’s conclusory, lay opinion statements that his injuries weren’t serious entitle Arthur to an instruction on the lesser-included of misdemeanor assault?

            In Wade v. State,[1] a case of aggravated assault by causing serious bodily injury, the defendant bit off the complainant’s earlobe and then testified that, in his opinion, the resulting disfigurement was not “serious.” Was that enough to entitle the defendant to a lesser-included instruction on misdemeanor assault? The Court of Criminal Appeals’s opinion engages in a lot of hedging, but at the end of the day I think the answer is: Yes. If I were prosecuting State v. Pendragon, I’d let Arthur have the lesser.

Ear chomping as self-defense

Robert Eric Wade was charged with aggravated assault by causing serious bodily injury: “by biting off … [Taylor] Sughrue’s earlobe.” The indictment alleged Wade used or exhibited a deadly weapon: his teeth.

            The story begins with Wade going to visit his ex-wife.[2] The State’s witnesses said that the ex-wife’s boyfriend, Taylor Sughrue, got intoxicated and laid down on a bed. Wade got upset with his ex-wife so he went into the bedroom, laid on top of the sleeping Sughrue, and bit his earlobe off.

            Wade’s version of events is that he was in a dating relationship with his ex-wife, but he went to her house on the day in question and found Sughrue there. An altercation ensued. Sughrue put Wade in a headlock, and Wade bit off Sughrue’s earlobe in self-defense, as one does.

            By the time paramedics arrived, Sughrue had largely stopped bleeding. He walked himself to the ambulance for treatment and went to the hospital. Doctors could not reattach the earlobe. Sughrue received 11 stitches and was discharged the same day.

            On cross-examination, the prosecutor asked the defendant whether he agreed he caused “serious bodily injury” to the victim. Wade admitted to biting off the earlobe, but he did not think it was serious bodily injury. On re-direct, Wade said that if he did not know what Sughrue looked like before the injury, he wouldn’t notice it.[3]

            Sughrue had a different perspective. He considers himself permanently disfigured. He showed jurors his ear at trial, and the State admitted pictures of the ear at the time of the injury and as it had healed. The Court of Criminal Appeals’s opinions includes pictures, if you’re curious. The pictures, after healing, look like you’d imagine a lobeless ear to look.

            Based on his opinion testimony that the injury wasn’t “serious,” Wade requested an instruction on the lesser-included offense of misdemeanor assault. The trial court denied the request. Wade was convicted—with a deadly weapon-finding—and sentenced to five years, but the sentence was suspended.

Reversal in the Third Court

On appeal, Wade claimed the evidence was insufficient to show Sughrue suffered “serious bodily injury.” He also complained about the trial court’s failure to submit the lesser-included to the jury. The Third Court, relying on another earlobe case from the Seventh Court, held the evidence was sufficient to support the conviction.[4]

            But the Third Court also held that Wade was entitled to the lesser-included instruction. Wade’s opinion that Sughrue’s injury wasn’t “serious” was enough evidence to allow the jury to find Wade guilty only of misdemeanor assault.

            The Third Court rejected the State’s argument that the jury’s deadly-weapon finding negated this issue entirely. That was because neither the indictment nor the jury instruction alleged aggravated assault by using a deadly weapon. The State’s only theory of liability involved causing serious bodily injury.

Is a conclusory opinion more than a scintilla of evidence?

The State petitioned for discretionary review, asking whether a “defendant’s conclusory lay opinion about the severity of a victim’s injury” was sufficient to create a “valid, rational alternative,” thus entitling a defendant to an instruction on a lesser-included. The State also petitioned for review of the Third Court’s deadly-weapon ruling.

            The Court of Criminal Appeals denied review of the deadly-weapon ruling but granted review and, in a 5–4 decision, affirmed the Third Court’s ruling. But while the Third Court’s ruling, the State’s PDR, and Wade’s briefing neatly framed the issue as being about whether Wade’s testimony alone entitled him to a lesser, the Court of Criminal Appeals’s majority muddied the matter, stating its opinion would address whether Wade’s testimony “combined with other evidence introduced at trial” entitled Wade to the lesser.[5]

            Writing for the majority, Judge Newell began with the basics of lesser-included law. A lesser-included offense is one that is:

            •          established by the same or fewer facts than the charged offense,

            •          differs from the charged offense only by requiring showing of a less serious injury, or

            •          differs from the charged offense only by requiring a lesser mental state.[6]

            While the State is entitled to a jury instruction on any lesser-included offense it wants,[7] a defendant is entitled to an instruction on a lesser only if there is evidence “establishing that, if the defendant is guilty, he is guilty of only the lesser offense.”[8] The Court of Criminal Appeals has described this as a requirement that the evidence provide the jury “a valid, rational alternative to the charged offense.”[9]

            The normal standard for a defendant to be entitled to a lesser-included is that there must be “more than a scintilla” of evidence to support it.[10] Near the beginning of the analysis section, Judge Newell remarks matter-of-factly that the Third Court was correct to conclude that Wade’s testimony was, on its own, more than a scintilla.[11]

The “valid rational alternative” test

Why, then, does the opinion go on? The State argued that, considering the undisputed evidence about Sughrue’s missing earlobe, Wade’s opinion that losing an earlobe was not “serious” did not create a “valid, rationale alternative.” The rest of the opinion addresses this issue.

            While requiring the evidence to present a “valid, rational alternative” sounds like a limitation on a defendant’s ability to get a lesser-included using incredible evidence, Judge Newell seems to have held it is not: “The ‘valid rational alternative’ test merely enhances [the guilty-of-only-the-lesser-offense] prong of the test for determining whether a defendant is entitled to an instruction on a lesser-included offense. It is not an invitation for reviewing courts to weigh the strength or credibility of the evidence in the record.”[12]

            The test, then, for determining whether a defendant charged with aggravated assault was entitled to a lesser-included instruction involves seeing if there is evidence that “cast reasonable doubt” on a conviction for aggravated assault, but not on a conviction for misdemeanor assault. Here, the aggravating element was causing serious bodily injury, rather than a regular injury.

A question of fact, not a question of law

The current Penal Code defines serious bodily injury as an injury “that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[13] The State’s theory was that Sughrue’s loss of an earlobe was a serious permanent disfigurement.

            There was no dispute that Sughrue was permanently disfigured, but who determines whether that disfigurement was “serious?” Citing some sufficiency cases that pre-date the current Penal Code, Judge Newell held that whether a particular injury is “serious” is a fact question.[14] Then, citing some more recent cases where courts had determined the evidence was legally insufficient to show that a permanent disfigurement was “serious,” Judge Newell held that jurors could look at an instance of permanent disfigurement and conclude it was not “serious.”

            Judge Newell reasoned that because courts have held the seriousness of an injury could be established by opinion testimony from complainants, a defendant’s opinion that the injury wasn’t serious could create a valid, rational alternative. Although there had been no trial objection to Wade’s opinion testimony, Judge Newell looked at whether Wade’s opinion was “appropriate under the facts of this case.” It was, because all Wade’s opinion did was describe, in lay terms, his observation of the same evidence the jury saw. Judge Newell then discusses in detail how Wade’s opinion related to the evidence in the case. Because this was evidence casting doubt on the seriousness of the injury, Wade was entitled to an instruction on the lesser offense.

Two dissents

There were two dissenting opinions, and Judge Keel dissented without opinion. Presiding Judge Keller, joined by Judge Yeary, dissented because she did not believe there was a factual dispute in the case. The only question was whether the injury was “serious,” and “the meaning of a statutory element of a criminal offense is an issue of law, subject to de novo review.”[15] Presiding Judge Keller pointed to the recent case of Maciel v. State,[16] where the Court held that a defendant who explicitly said she did not “operate” a vehicle nonetheless confessed to operating the vehicle because her confessed actions met the legal definition of operation. Presiding Judge Keller would have held that the undisputed facts here amounted to serious bodily injury.

            Judge Slaughter dissented and advocated for a charmingly clear rule: “Losing the entirety of a named body part … because of an assault constitutes ‘serious permanent disfigurement’ per se.”[17] Even without adopting that rule, she would have rejected Wade’s claim because his “conclusory testimony issuing a blanket denial of the seriousness of the victim’s injury does not rationally refute the fact evidence showing that the victim’s disfigurement was both serious and permanent.”[18]


Except for a few Mike Tyson fans hoping to lure Iron Mike out of retirement and back into the ring, most Texas prosecutors probably won’t appreciate letting a defendant get a misdemeanor instruction for biting off a body part. It’s understandable to want to fight against lesser-included instructions in a case like this. But Wade is more evidence—in the unlikely event we needed it—that the Court of Criminal Appeals has a very permissive approach to giving lesser-included instructions.[19]

            There are two ways a prosecutor could look at this case. Because of all the hedging the decision engages in—particularly its extensive discussion of how the facts related to Wade’s opinion—a prosecutor could, in good faith, argue Wade is a fact-bound nothingburger.

            But I read this opinion as announcing a fairly clear rule: A conclusory lay opinion that a statutory element was not met is enough to entitle a defendant to a lesser-included instruction. There may be exceptions to this rule if the opinion is outlandish or refuted by objective evidence—e.g., a defendant testifying that in his opinion a 6-year-old victim wasn’t a “child.” But considering how appeals normally go after a defendant has been denied a lesser-included instruction, I would weigh my options carefully before opposing one.

            Presiding Judge Keller is correct that ordinarily, whether undisputed facts meet a legal definition is a question of law for the court to decide. Wade makes the question of seriousness purely a question for the jury, at least as it applies to requests for lesser-includeds. After Wade, any time the difference between a lesser and greater offense is one of degree, opposing a lesser-included instruction is a risky path.

            Could the State get around this by alleging aggravated assault by using a deadly weapon? The Court of Criminal Appeals did not directly address that, but I don’t see why the logic of Wade wouldn’t extend to those cases as well. Indeed, the deadly-weapon question may be more susceptible to this problem than the serious-bodily-injury question. Assessing whether something (other than firearms, which are per se deadly weapons)[20] is a deadly weapon requires looking at how serious the potential injuries resulting from its use might be. Asking what sort of injury an object is capable of causing almost invites the sort of conclusory opinions like Wade’s. You might think swinging a long sword near another person would render it a deadly weapon, but if the Black Knight says Excalibur is capable of causing only flesh wounds, we’re back to giving Arthur the lesser.


[1]  ___ S.W.3d ___, No. PD-0157-20, 2022 WL 1021056 (Tex. Crim. App. April 6, 2022).

[2]  Wade v. State, 594 S.W.3d 804, 808 (Tex. App.—Austin 2020).

[3]  Judge Slaughter’s dissent includes an excerpt of the relevant testimony. See Wade, 2022 WL 1021056, at *14.

[4]  Wade, 594 S.W.3d at 812-13 (discussing Sizemore v. State, 387 S.W.3d 824 (Tex. App.—Amarillo 2012, pet. ref’d)).

[5]  Wade, 2022 WL 10621056, at *1.

[6]  Tex. Code Crim. Proc. Art. 37.09. For a description of how this works in practice, see Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).

[7]  See Grey v. State, 298 S.W.3d 644, 648-49 (Tex. Crim. App. 2009).

[8]  Wade, 2022 WL 10621056, at *3.

[9]  Hall, 225 S.W.3d at 535.

[10]  Scintilla is Latin for “spark” and is related to scintillate. In property law, the legal use of the word goes back centuries. Texas courts use the term when describing the quantum of evidence necessary to defeat certain motions for summary judgment or when dealing with sufficiency review. While there’s not much in the criminal caselaw parsing out what is and what isn’t a scintilla of evidence, there are hundreds of civil cases on the subject.

[11]  Wade, 2022 WL 1021056, at *4.

[12]  I quote this at length because I do not know what it means. For an alternative to be “rational,” the evidence supporting it must have some minimal levels of strength and credibility. Judge Newell’s extensive discussion of how Wade’s opinion fit in with the physical evidence suggests some concern for strength and credibility.

[13]  Tex. Penal Code §1.07(46).

[14]  Wade, 2022 WL 1021056, at *6 n.33 (citing cases from 1947, 1940, and 1921). Before the current Penal Code was adopted in 1974, there was no statutory definition of “serious bodily injury.”

[15]  Id. at *11 (Keller, P.J., dissenting).

[16]  631 S.W.3d 720, 725 (Tex. Crim. App. 2021).

[17]  Wade, 222 WL 1021056, at *13 (Slaughter, J., dissenting).

[18]  Ibid.

[19]  See, e.g., Bullock v. State, 509 S.W.3d 921, 927 (Tex. Crim. App. 2016) (holding defendant charged with theft entitled to lesser-included of attempted theft despite defendant’s testimony denying attempted theft).

[20]  Tex. Penal Code §1.07(17)(a).