Florentino Gomez Torrez, Jr. v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-05-00226-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FLORENTINO GOMEZ TORREZ, JR., APPEAL FROM THE THIRD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Florentino Gomez Torrez appeals his conviction for assault causing bodily injury. After finding him guilty, the jury sentenced him to confinement for one year and a $4,000.00 fine. In a single issue, Appellant asserts the trial court submitted an improper charge to the jury. We affirm.

Background

Brandi King testified that she had been dating Appellant, but on June 27, 2004, she told him she did not want to see him anymore. Later that night while she and her four children were sleeping, he came in through the locked back door and began yelling and making accusations. He grabbed her hair and yanked her head around. He also punched her in the face with his fist. When he fell asleep on her couch, she called the police.

The grand jury s indictment alleged that Appellant intentionally or knowingly enter[ed] a habitation, without the effective consent of Brandi King, the owner thereof, and attempted to commit or committed an assault on Brandi King. The jury charge explained that, under this indictment, before finding Appellant guilty, the jury must be satisfied that entry was made without the owner s consent and with the intent to commit the specific crime of assault. The charge set out the offense of assault as follows:

A person commits an assault if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

The application paragraphs explained that if the jury found Appellant entered the habitation without King s consent and attempted to commit or committed an assault on her, it will find Appellant guilty as charged in the indictment. However, if the jury found that Appellant assaulted King but did not enter a habitation without King s consent, it will find Appellant guilty of the lesser included offense of assault. In addition to the option of finding Appellant guilty of burglary of a habitation, the jury had the options of finding him guilty of assault causing bodily injury, assault by threat, and assault by physical contact. The jury found Appellant not guilty of burglary of a habitation but guilty of assault causing bodily injury.

The Charge

In his sole issue, Appellant contends the trial court erred in submitting a charge that allowed the jury to convict him of assault causing bodily injury. He argues that a finding of guilt of assault causing bodily injury requires proof of the additional element of bodily injury, which was not alleged in the indictment. He contends that he was entitled to submission of the generic offense of assault and harmed by a charge that includes an offense not in the indictment.

Applicable Law

An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). In applying Article 37.09(1), a lesser included offense is determined by looking at the elements of the offense actually charged, the statutory elements of the offense sought as a lesser included offense, and the proof presented at trial to show the elements of the charged offense. Jacob v. State, 892 S.W.2d 905, 907-08 (Tex. Crim. App. 1995); see also Hayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim. App. 2005). The elements of the offense claimed to be a lesser included offense must be examined to see if the elements are functionally the same or less than those required to prove the charged offense. Jacob, 892 S.W.2d at 907-08. A lesser included offense does not enlarge upon the offense charged, but rather restricts or reduces culpability as compared to the offense charged. Id. at 907.

A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation and attempts to commit a felony, theft, or an assault. Tex. Pen. Code Ann. 30.02(a)(3) (Vernon 2003). A person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another, intentionally or knowingly threatens another with imminent bodily injury, or intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. 22.01(a) (Vernon Supp. 2005). Where the penal code defines more than one way to commit an offense, the wording of the allegation in the indictment determines what offenses are lesser included offenses. See Martinez v. State, 599 S.W.2d 622, 624 (Tex. Crim. App. 1980).

Discussion

The State was not required to set out in the indictment the elements of the offense allegedly committed after entering the habitation without consent. See Ex parte Donohue, 602 S.W.2d 265, 266 (Tex. Crim. App. 1980); Mitchell v. State, 137 S.W.3d 842, 846 (Tex. App. Houston [1st Dist.] 2004, pet. ref d). To prove burglary of a habitation as charged, the State would have to prove, in addition to entry without King s consent, acts that constitute an assault under Penal Code Section 22.01(a). Because, under the penal code, the offense of assault can be committed three different ways, the State could have presented evidence of any of the three types of assault identified by Section 22.01. Therefore, the elements of assault causing bodily injury are functionally the same as those required to prove commission of the assault as charged in the indictment. Tex. Code Crim. Proc. Ann. art. 37.09(1). Assault causing bodily injury did not enlarge upon the offense charged and was therefore a lesser included offense. Mitchell, 137 S.W.3d at 846. We overrule Appellant s sole issue.

Disposition

We affirm the trial court s judgment.

SAM GRIFFITH

Justice

Opinion delivered July 19, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)