TBJ January 2022

2021: The Year in Review

Criminal Law

Written by Dwight McDonald

Assault In Ortiz v. State (NO. PD-1061-19), the appellant was charged with occlusion assault (assault by impeding the normal breathing or circulation) under Texas Penal Code § 22.01(b)(2)(B), a felony. The appellant was angry at his girlfriend for flirting with other men on social media. He hit her in the back of her head and then choked her. The appellant requested an instruction on misdemeanor bodily injury assault as a lesser included offense of occlusion. The trial court denied the request, and the appellant was convicted of occlusion assault. The court of appeals held that the trial court erred in refusing the instruction on bodily injury assault. Based on the facts at trial, it was possible for the jury to determine that the marks on the victim’s neck could have occurred without the appellant strangling her, therefore, the court reasoned that, “simple assault is a lesser included offense because it is included within the proof necessary to establish assault family violence by strangulation.”

Defensive Instructions In Maciel v. State (NO. PD-0753-20), appellant Bethany Maciel went out drinking with her brother. Her brother began driving them home but then became ill. Maciel was attempting to move the car out of the middle of the road when Texas A&M University police arrived. She attempted to shift gears on the car and was instructed not to do so by the officer. Maciel failed the field sobriety tests and was eventually convicted of DWI with an alcohol concentration of 0.15% or more, a Class A misdemeanor. Punishment was assessed at 20 days in jail and a $2,500 fine. Maciel claimed the trial court erred by denying her requested jury instruction on the defense of necessity because she was trying to move the vehicle from the roadway. The 13th Court of Appeals held there was no error in refusing the jury charge of necessity because Maciel had denied “driving” the vehicle and in order to invoke the necessity defense, the defendant must admit the illegal conduct and under Texas Penal Code § 9.22 then show that (1) “the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and (2) “the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct.” The CCA disagreed and held that Maciel was entitled to a jury instruction on necessity because she essentially admitted to every element necessary to convict her of DWI, even if she did not realize she had done so.

Punishment In Middleton v. State (NO. PD-1236-20), appellant Brian Middleton pleaded guilty to three theft cases and was placed on deferred adjudication. He later was charged for two new thefts. The state filed motions to adjudicate the three earlier cases. Middleton pleaded guilty to the two new theft cases but the trial court ordered a presentence investigation report prior to formally accepting the pleas. The trial court then held a hearing on all five offenses. The trial court sentenced him to two years in each case and ordered that they all be “stacked.” The issue Middleton raises is when the punishment stage for both the deferred and the new offense occurs in the same proceeding, have the cases been tried in the same criminal action for determining whether the sentences can be stacked? The CCA stated, “Because the deferred-adjudication cases were prosecuted in the same criminal action as the new cases, we conclude that the court of appeals was correct to hold that the sentences in all of the cases must run concurrently.”

DWIGHT MCDONALD teaches at Texas Tech University School of Law. He is the immediate past chair of the State Bar of Texas Criminal Justice Section and the District 16 director for the State Bar of Texas.


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