By Ali Nasser
Assistant Criminal District Attorney in Dallas County
In two separate cases, Orlando Ortiz and Dewey Barrett were charged with felony occlusion assault—assault committed by impeding the breath or blood circulation of a family member.
Both requested a lesser-included-offense instruction on misdemeanor bodily-injury assault based on the theory that they caused bodily injury but did not impede the breath or circulation of the victim, and both were convicted after the trial courts denied their requests.
Two courts of appeals reached different conclusions on whether each defendant was entitled to a lesser-included instruction, and the Court of Criminal Appeals (CCA) settled the split. The CCA then held, in an opinion consolidating the two cases, that when the defendant challenges only the type of injury proved at trial, not the family relationship between offender and victim, bodily-injury assault is not a lesser-included offense of occlusion assault.
Facts and procedural history
Orlando Ortiz was charged with occlusion assault of Odilia Gomez. The evidence at Ortiz’s trial showed that he was in a dating relationship with her, and that on August 12, 2016, he hit her on the back of the head, strangled her, twisted her knee until it “popped,” and hit her over the head with a frozen water bottle. Gomez’s injuries from this assault included swelling, abrasions, and bruising.
Ortiz testified that he restrained Gomez by putting his hands on her neck but denied ever squeezing her neck or trying to strangle her. Based on his testimony, Ortiz requested a lesser-included-offense instruction on misdemeanor bodily-injury assault under the theory that he caused Gomez only bodily injury but did not impede her breathing or blood circulation. The trial court denied the request, and the jury convicted Ortiz of the charged offense.
On appeal, the San Antonio Court of Appeals agreed with Ortiz that the trial court should have allowed the lesser-included instruction and reversed the conviction, finding that bodily-injury assault is a lesser-included offense of occlusion assault and that there was some evidence that Ortiz only committed bodily-injury assault.
Barrett v. State
Dewey Dewayne Barrett was also charged with occlusion assault. The evidence showed that Barrett got into an argument with his wife, Glenda Mackey, and that Barrett strangled Mackey twice to the point that she “wheezed and gasped for breath.” But at trial, Mackey denied that Barrett ever strangled her and instead said that he “punched her in the face several times.”
Barrett requested a lesser-included-offense instruction on misdemeanor bodily-injury assault under the theory that he caused Mackey bodily injury by punching her in the face but did not impede her breathing or blood circulation. The trial court denied the request and the jury convicted Barrett of occlusion assault.
On appeal, the Tyler Court of Appeals disagreed that Barrett was entitled to the lesser-included instruction, noting that Barrett relied on evidence that he punched Mackey, which proved conduct different from the charged conduct of strangling Mackey. Because the conduct establishing the lesser-included offense differed from the conduct alleged in the indictment, the court of appeals held the trial court correctly refused the lesser-included instruction and affirmed the judgment.
The CCA weighs in
In November 2019, the CCA granted discretionary review of these two cases and consolidated them to determine whether Ortiz and Barrett were entitled to a lesser-included-offense instruction on bodily-injury assault. In March 2021, the Court issued its opinion, holding that Ortiz and Barrett were not entitled to a lesser-included instruction because, in their specific cases, bodily-injury assault is not a lesser-included offense of occlusion assault.
Bodily-injury assault requires that the defendant cause bodily injury to another. Although occlusion assault also requires a baseline showing that the defendant caused bodily injury to another, it requires two additional elements:
1) the family-relationship element: that the victim share a family or dating relationship with the defendant as defined by certain sections of the Texas Family Code; and
2) the occlusion element: that the offense be committed by impeding the normal breathing or circulation of the blood of the victim (“impeding injury”) by applying pressure to the victim’s throat or neck or by blocking the victim’s nose or mouth.
Any offense is a lesser-included offense if “it is established by proof of the same or less than all the facts required to establish commission of the charged offense.”
What facts establish occlusion assault?
The majority in Ortiz relied on the unit-of-prosecution test to identify the facts required to establish the commission of occlusion assault. In applying this test, the majority explained that the unit of prosecution of occlusion assault is the specific injury from impeding the breath or blood circulation of the victim. Therefore, an impeding injury is required to prove occlusion assault.
So occlusion assault requires a showing of bodily injury—specifically, by proving impeding injury, and bodily-injury assault requires proof of any bodily injury—whether it is impeding injury or non-impeding injury. Does that mean proof of occlusion assault establishes bodily-injury assault?
Scenario One: The family-relationship element is undisputed.
The CCA held that proof of occlusion assault would not establish bodily-injury assault “when the disputed element is the injury.” In other words, a defendant charged with occlusion assault can never receive a lesser-included-offense instruction on bodily-injury assault by arguing that the State proved only non-impeding injury.
One helpful way to analyze this issue is to ask whether the family-relationship element was disputed at trial. If the family-relationship element is undisputed and the State then proves impeding injury, the jury must convict the defendant of occlusion assault, and it cannot convict the defendant of bodily-injury assault based on that same impeding injury. The only way bodily-injury assault could be established in this scenario is if evidence of a different, non-impeding injury were shown. This would require proving facts that are “different” from and “additional” to the impeding-injury facts that are required to prove occlusion assault. Therefore, in this scenario, bodily-injury assault would not be established by proof of the same or less than all the facts required to establish occlusion assault.
Scenario Two: The family-relationship element is disputed.
But what if the family-relationship element is disputed? The CCA said that “if the [family] relationship is at issue, then an instruction on misdemeanor assault may be warranted.” This is because, if the family-relationship is disputed, proving impeding injury would not require the jury to convict the defendant of only occlusion assault. If the jury found the defendant did cause impeding injury but did not have a family or dating relationship with the victim, then it would have to convict the defendant of bodily-injury assault.
In such a scenario, bodily-injury assault would be proven by the same impeding injury required to prove occlusion assault. Therefore, bodily-injury assault in this scenario would be a lesser-included offense of occlusion assault because it could be established through the same or less than all the facts required to prove occlusion assault.
Applying the rule
Barrett and Ortiz never challenged the family-relationship element at trial. Therefore, they fit into the first scenario above, and bodily-injury assault was not a lesser-included offense of the charged occlusion-assault offense. Concluding that neither Ortiz nor Barrett were entitled to a lesser-included-offense instruction, the CCA reversed the San Antonio Court of Appeals’ judgment in Ortiz and affirmed the Tyler Court of Appeals’ judgment in Barrett.
Concurring and dissenting opinions
Judge Yeary issued a concurring and dissenting opinion, and Presiding Judge Keller, joined by Judges Walker and Slaughter, issued a dissenting opinion. Both Judge Keller and Judge Yeary agreed that:
1) impeding injury is not a unit of prosecution,
2) bodily injury is the unit of prosecution in occlusion assault cases, and
3) the occlusion element is a specific manner and means of causing bodily injury that may elevate misdemeanor bodily-injury assault to a third-degree felony.
But Judge Keller disagreed with Judge Yeary about the unit of prosecution for bodily injury. She reasoned that the unit of prosecution in assault cases is all “damage suffered by the victim in a single transaction.” She gave both a textual rationale—the legislature defined the unit of prosecution as “bodily injury” and not “a bodily injury”—and a policy rationale—pointing out that the transactional interpretation avoids proportionality, jury unanimity, and double jeopardy concerns.
Judge Yeary expressed that he was “unprepared” to say that the unit of prosecution for assault is transactional, instead reasoning that the unit of prosecution for assault is “any physical injury sustained as a result of a particular, discrete, assaultive act.”
The effect of Ortiz going forward
Prosecutors of occlusion-assault cases should be aware that if only the injury element is disputed at trial, not the relationship element, the defendant is not entitled to a lesser-included-offense instruction on bodily-injury assault. Similarly, prosecutors should not rely on getting such a lesser-included-offense instruction on bodily-injury assault in occlusion assault cases. Whether an instruction is warranted will come down to whether there is evidence disputing the family-relationship element.
However, prosecutors can still seek a conviction for bodily-injury assault without relying on a lesser-included-offense instruction. As discussed in Ortiz, occlusion assault relies on a different unit of prosecution from bodily-injury assault, so where there is proof of both impeding injury and non-impeding injury arising from the same assaultive transaction, a prosecutor should be allowed to charge a defendant with both occlusion assault and bodily-injury assault based on the same transaction without violating double jeopardy.
The imminent demise of Irving v. State?
In some interesting dicta, the CCA also suggested that its opinion in Irving v. State was misguided. In Irving, the defendant was charged with committing aggravated assault by either 1) attacking the victim with a deadly weapon, a baseball bat, or 2) causing serious bodily injury to the victim by hitting her with a baseball bat. After the State’s case in chief, Irving presented evidence that he never hit the victim with the baseball bat but instead physically struggled with her until both of them fell into glass shelves. Irving denied ever attacking the victim or causing her serious injury.
Based on his testimony, Irving requested a lesser-included-offense instruction for bodily-injury assault. The CCA held that the trial court did not err in refusing the request because it was not “based on facts required to establish the commission of the offense charged.” The conduct of falling on top of the victim is not included within the charged conduct of hitting the victim with a baseball bat. On that reasoning, the CCA affirmed the trial court’s judgment.
In Ortiz, the majority labeled the Irving analysis as “faulty.”  The majority pointed out that the manner and means of committing aggravated assault is not the unit of prosecution for the offense. Therefore, a difference between the non-statutory manner and means alleged in the indictment and the non-statutory manner and means of committing a proposed lesser-included offense “should not foreclose an instruction on a proposed lesser-included offense.”
This logic borrows from the CCA’s variance jurisprudence. In Johnson v. State, the CCA held that a variance between indictment allegations and the proof presented at trial can never be material if the allegations in question 1) are not statutory elements of the charged offense and 2) do not describe the unit of prosecution. The majority in Ortiz suggests that, similarly, where there is a variance between the indictment allegations and the proof presented to establish a lesser-included offense, the instruction should be given if the allegations in question 1) are not statutory elements of the charged offense and 2) do not describe the unit of prosecution.
Therefore, while the majority declined to overrule Irving, its focus on the unit of prosecution in its lesser-included-offense analysis may well preclude Irving’s application.
Just what is an assaultive unit of prosecution?
Finally, the CCA also declined to address whether discrete injuries sustained during a single assaultive transaction constitute separate units of prosecution, but the concurring and dissenting opinions in Ortiz at least shed some light on how certain judges feel about the issue. Judge Yeary would find each injury sustained by a discrete assaultive act constitutes its own unit of prosecution for assault. Presiding Judge Keller and Judges Walker and Slaughter, on the other hand, would find that the unit of prosecution for assault is “all the damage suffered by a victim in a single transaction.”
 Ortiz v. State, No. 04-18-00430-CR, 2019 WL 4280074, at *1 (Tex. App.—San Antonio Sep. 11, 2019, pet. granted); Tex. Penal Code §22.01(b)(2)(B).
 Ortiz v. State, 2019 WL 4280074, at 2-4.
 Barrett v. State, No. 12-18-00023-CR, 2018 WL 4907822, *1 (Tex. App.—Tyler Oct. 10, 2018, pet. granted).
 Id. at *2–3.
 Ortiz v. State, Nos. PD-1061-19, PD-1362-18, ___ S.W.3d ___, 2021 WL 900673, at *1 (Tex. Crim. App. Mar. 10, 2021).
 Tex. Penal Code §22.01(a)(1).
 Tex. Penal Code §22.01(b)(2)(B).
 Tex. Code Crim. Proc. Art. 37.09(1).
 Id. at *1.
 Ortiz, 2021 WL 900673, at *3–4.
 Id. at *4.
 See Tex. Code Crim. Proc. Art. 37.09(1).
 Ortiz, 2021 WL 900673, at *4.
 See Tex. Penal Code §22.01(a)(1), (b).
 Ortiz, 2021 WL 900673, at *4.
 Id. (Keller, P.J., dissenting); id. at 6 (Yeary, J., concurring and dissenting).
 Id. at *13 (Keller, P.J., dissenting).
 Id. at *4–5.
 Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005).
 Ortiz, 2021 WL 900673, at *5.
 Johnson v. State, 364 S.W.3d 292, 298–99 (Tex. Crim. App. 2021).
 Ortiz, 2021 WL 900673, at *5.
 Ortiz, 2021 WL 900673, at *6 (Yeary, J., concurring and dissenting).
 Id. at *13 (Keller, P.J., dissenting).