      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00223-CV



                       In re The State of Texas ex rel. Jennifer A. Tharp


                     ORIGINAL PROCEEDING FROM COMAL COUNTY



                               DISSENTING OPINION


               For the reasons that follow, I respectfully dissent from the majority’s opinion.

               Without question, the relief requested by the State in this case can only be described

as extraordinary. In fact, when discussing the possibility that an appellate court might intercede

into the proceedings of an ongoing criminal trial in order to correct jury-charge error, Justice Price

from the court of criminal appeals explained that allowing this type of judicial oversight can only

open the door to appellate interference in a host of other decisions made by the trial court in a

criminal proceeding. In re State ex rel. Weeks, 391 S.W.3d 117, 126-27 (Tex. Crim. App. 2013)

(orig. proceeding) (Price, J., dissenting) (noting that opening this appellate doorway could lead to

mandamus review of evidentiary determinations, rulings on requests for continuances, and decisions

regarding defendant’s right to counsel). Moreover, he stated that allowing appellate courts to use

their mandamus authority to conduct an end run around the statutory prohibition generally forbidding

the State from appealing judicial rulings in criminal proceedings would usurp the legislature’s

ultimate authority to decide what types of cases are indeed appealable. Id. at 127-28 (discussing

State ex rel. Healey v. McMeans, 884 S.W.2d 772, 778 (Tex. Crim. App. 1994) (Meyers, J.,
dissenting)). These concerns seem all the more problematic to me given that the type of mandamus

review that could be performed of an ongoing trial will be significantly hampered by the limited

record that is available in a mandamus proceeding from which a decision is to be made.

               However, the court of criminal appeals has in clear terms mandated that the State has

the right to mandamus relief concerning a jury charge “when the facts and circumstances dictate but

one rational decision ‘under unequivocal, well-settled (i.e., from extant statutory, constitutional, or

case law sources), and clearly controlling legal principles.’” Id. at 122 (quoting Bowen v. Carnes,

343 S.W.3d 805, 810 (Tex. Crim. App. 2011)). Moreover, the court explained that this type of

remedy is needed, in part, because the State has no adequate remedy by appeal to challenge the trial

court’s ruling. Id. at 123. For the reasons that follow, I believe that the requirements for mandamus

review of a jury charge as identified by the court of criminal appeals are satisfied in this case.

               During the charge conference, S.M. requested that the charge include the lesser

included offense of assault, and the trial court granted that request. As a result, the jury charge

contained instructions for the offenses of murder, manslaughter, and assault. In relevant part, the

Penal Code provides that an individual is guilty of assault if he “intentionally, knowingly, or

recklessly causes bodily injury to another.” Tex. Penal Code § 22.01(a)(1). Further, the Code

defines “[b]odily injury” as “physical pain, illness, or any impairment of physical condition.” Id.

§ 1.07(a)(8). However, the Penal Code also distinguishes bodily injury from “[s]erious bodily injury”

as that term is used in the statutes governing aggravated assault and murder. See id. § 1.07(a)(46);

see also id. §§ 19.02(b) (providing that person commits murder if he intentionally causes death of

another person or “intends to cause serious bodily injury and commits an act clearly dangerous to



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human life that causes the death of an individual”), 22.02 (explaining that person commits

aggravated assault if he commits assault and “causes serious bodily injury to another”). In particular,

the Code defines “[s]erious bodily injury” as meaning “bodily 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.” Id. § 1.07(a)(46).

               In this case, according to the limited record provided to this Court, the evidence

establishes that S.M. punched L.D. twice in the face and that those strikes resulted in L.D.’s death.

Accordingly, regardless of what the evidence might show S.M. intended to do, the jury cannot

rationally conclude that S.M. inflicted mere bodily injury. Cf. Ferrel v. State, 55 S.W.3d 586, 591

(Tex. Crim. App. 2001) (explaining that because evidence established that defendant caused serious

bodily injury, “a reasonable jury could not have found [defendant] guilty only of misdemeanor

assault”). For that reason, I believe that the facts and circumstances of this case under unequivocal,

well-settled, and controlling legal principles dictate that S.M. is not entitled to an instruction for

assault and that the trial court abused its discretion by including the assault instruction within the

jury charge. See Weeks, 391 S.W.3d at 122; see also De Jarnette v. State, 706 S.W.2d 680, 682

(Tex. App.—Houston [14th Dist.] 1986) (concluding that “a charge on the misdemeanor assault

was not raised by the evidence because the complainant sustained serious bodily injury as a result

of the assault”), aff’d on other grounds, 732 S.W.2d 346 (Tex. Crim. App. 1987). Accordingly, I

would grant mandamus relief in this case and order the trial court to remove the assault instruction

from the charge.

               For the reasons given above, I respectfully dissent from the majority’s opinion.



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                                          __________________________________________

                                          David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Filed: April 23, 2015




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