           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1561-07



                           CARLOS LANDRIAN, Appellant

                                             v.

                                THE STATE OF TEXAS



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

       P RICE, J., filed a concurring opinion in which M EYERS, J., joined.

                               CONCURRING OPINION

       I agree that there is no jury unanimity problem in this case. The jury’s affirmative

answer to the special “deadly weapon” issue guaranteed that all of the jurors at least found

the appellant guilty of aggravated assault under the theory that he caused bodily injury and

used or exhibited a deadly weapon in the process. Under these circumstances, it does not

matter that the jury might not also have unanimously found that the appellant was guilty
                                                                                   Landrian — 2


under the other, “serious bodily injury” theory of aggravated assault. On the peculiar facts

of this case, we can be certain that the jury unanimously found him guilty of at least one of

the two ways of committing aggravated assault for which they were disjunctively authorized

to find him guilty.

       The majority goes on to hold that the jury need not have unanimously found that the

appellant was guilty under at least one of these disjunctively-charged theories of aggravated

assault, as long as it unanimously found he was guilty under one or the other. I am far from

sanguine about this conclusion, for the reasons that follow. In any event, because I find it

unnecessary to reach the issue on the facts of this case, I concur in the Court’s decision to

reverse the judgment of the court of appeals, but do not join its opinion.

       In Stuhler v. State,1 a majority of the Court endorsed the so-called “eighth-grade

grammar test” as a rule of thumb for deciding which alternative theories of an offense

constitute separate elements, upon which jurors must agree unanimously, and which are

simply alternative manner and means for satisfying an element of the offense, upon which

jurors need not agree.2 As I think is illustrated by the Court’s subsequent opinion in Pizzo

v. State, this rule of thumb is not fool-proof.3 In the instant case, the Court utilizes the

       1

        218 S.W.3d 706 (Tex. Crim. App. 2007).
       2

       Id., at 718, adopting Judge Cochran’s concurring position in Jefferson v. State, 189 S.W.3d
305, 315-16 (Tex. Crim. App. 2006).
       3

        235 S.W.3d 711, 719-722 (Price, J., concurring).
                                                                                    Landrian — 3


eighth-grade grammar test to decide that the alternative ways of elevating a simple assault

to an aggravated assault are simply manner and means of committing aggravated assault, not

discrete elements. The Court comes to this conclusion by identifying “bodily injury” as the

gravamen of the offense of aggravated assault. The alternative ways that simple assault can

be elevated to aggravated assault simply constitute manner and means by which the

gravamen of bodily injury can be perpetrated such that a greater range of punishment may

be imposed. I am dubitante.

       It seems likely to me that the Court is mistaken to conclude that simple bodily injury

constitutes the entire gravamen of the offense of aggravated assault. Simple assault and

aggravated assault are separate offenses. The Legislature has chosen to enact them in two

separately numbered penal provisions. 4 Aggravated assault is defined as a simple assault,

       4

       TEX . PENAL CODE §22.01(a) defines simple assault:

              (a) A person commits an offense 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 person when the person knows or should reasonably believe
              that the other will regard the contact as offensive or provocative.

Aggravated assault is defined in TEX . PENAL CODE § 22.02(a), which reads:

              (a) A person commits an offense if the person commits assault as defined in
       § 22.01 and the person:
                                                                                   Landrian — 4


plus the addition of one of two statutorily defined aggravating factors. While it is clear that

the gravamen of simple assault (at least simple assault as defined in Section 22.01(a)(1) of

the Penal Code) is causing bodily injury, one would think that the gravamen of aggravated

assault must be, in legislative contemplation, causing bodily injury—plus something more.

After all, what separates one discrete statutorily defined offense from another is that one

must have at least one distinct element that the other does not.

       Section 22.02(a) embodies two alternative aggravating factors. The first is that the

defendant must cause, not just bodily injury, but serious bodily injury. This is a result-of-

conduct type factor. The second aggravating factor is the use or exhibition of a deadly

weapon. This is a nature-of-conduct type factor. It seems quite plausible to me to argue that

the aggravated assault statute thus embodies two very distinct gravamens, and that bodily

injury constitutes a subset-gravamen of each. The first aggravated assault gravamen is that

the defendant caused serious bodily injury. The second is that the defendant caused bodily

injury and brandished a deadly weapon in the process. Are these not elemental? Are they

not, in fact, the very additional elements that distinguish aggravated assault from simple

assault? If they are not, then what statutory element does distinguish the offense of simple

assault from the separate offense of aggravated assault?



                     (1) causes serious bodily injury to another, including the
              person’s spouse; or

                      (2) uses or exhibits a deadly weapon during the commission
              of the assault.
                                                                                   Landrian — 5


       The Court seems to acknowledge that the various ways of committing simple assault,

embodied in Subsections 22.01(a)(1) through (a)(3) of the Penal Code, constitute distinct

alternative statutory elements for the commission of that offense, not alternative manner and

means. As the Court notes, there are the “bodily injury” and “physical contact” theories of

simple assault, which are result-of-conduct theories of the offense, and then there is the

“threat-of-imminent-bodily injury” theory, which is a nature-of-conduct theory of the

offense. If I am not mistaken, I think the Court means to suggest that it regards these three

theories to constitute separate, alternative elements of the offense of simple assault. They do

not merely describe how the offense may be committed, but instead define what conduct

constitutes the commission of the offense.5 Why, then, does the Court not similarly conclude

that “serious bodily injury,” a result-of-conduct theory, and “use or exhibition of a deadly

weapon” while causing bodily injury, a nature-of-conduct theory, also constitute separate

alternative elements of aggravated assault?

       In short, it seems doubtful that the gravamen of aggravated assault is just bodily

injury. I am not at all sure that in order to set aggravated assault apart from simple assault,

as the Legislature has done by defining the two offenses in different statutory provisions, we

should not conclude that the gravamen of aggravated assault is either serious bodily injury,



       5

        See Jefferson v. State, supra, at 315 (Cochran, J., concurring) (“the specifics of how the
defendant [caused a particular result] are not the gravamen of the offense and not the statutorily
prohibited conduct.”).
                                                                                   Landrian — 6


or else bodily injury plus the use or exhibition of a deadly weapon. Applying the eighth-

grade grammar test to determine the elements of the offense as thus understood, we would

presumably find the elements to be, at a minimum: the subject (the defendant); the main

verbs (“causes” and/or “uses or exhibits”); and the direct objects (“bodily injury,” “serious

bodily injury,” and/or “a deadly weapon”).         By this reckoning, all of these statutory

alternatives are elements of the offense of aggravated assault, not mere manner and means.

Therefore, if they are pled alternatively in the indictment, the jury must be instructed that it

must unanimously find one or the other (or both) before it may convict.

       But I need not ultimately resolve this question today in order to agree that there is no

jury unanimity problem in this particular case. It is clear here that all twelve jurors found that

the appellant caused bodily injury and used or exhibited a deadly weapon in the process. I

therefore concur.




Filed: October 8, 2008
Publish
