V.T.C.A., Penal Code � 22.01 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 5.

Offenses Against The Person (Refs & Annos) Chapter 22. Assaultive Offenses (Refs & Annos) � 22.01. 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 when the person knows or should reasonably beli V.T.C.A., Penal Code � 15.02 Vernon's Texas Statutes and Codes Annotated Currentness Penal Code (Refs & Annos) Title 4. Inchoate Offenses (Refs & Annos) Chapter 15. Preparatory Offenses (Refs & Annos) � 15.02. Criminal Conspiracy

(a) A person commits criminal conspiracy if, with intent that a felony be committed: (1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one or more of them performs an overt act in pursuance of the agreement. (b) An agreement constituting a conspiracy may be inferred from acts of the parties. (c) It is no defense to prosecution for criminal conspiracy that:

(1) one or more of the coconspirators is not criminally responsible for the object offense; (2) one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted; (3) one or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution; (4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or (5) the object offense was actually committed. (d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor. CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994. HISTORICAL AND STATUTORY NOTES 2003 Main Volume Acts 1993, 73rd Leg., ch. 900, � 1.01, in subsec. (d), substituted "state jail felony" for "felony of the third degree". Prior Laws: Rev.P.C. 1879, arts. 800, 801 to 803, 804, 805 to 808. Rev.P.C. 1895, arts. 953, 954 to 956, 957, 958 to 961. Rev.P.C. 1911, arts. 1433, 1434 to 1436, 1437, 1438 to 1441. Vernon's Ann.P.C. (1925) arts. 1622 to 1629. CROSS REFERENCES Accomplice witnesses, see Vernon's Ann.C.C.P. art. 38.14. "Act" defined, see V.T.C.A., Penal Code � 1.07. "Actor" defined, see V.T.C.A., Penal Code � 1.07. Classification of offenses, see V.T.C.A., Penal Code � 12.02 et seq. Coconspirator's responsibility for felony committed in furtherance of conspiracy,

see V.T.C.A., Penal Code � 7.02. "Conduct" defined, see V.T.C.A., Penal Code � 1.07. Conspiracies in restraint of trade, see V.T.C.A., Bus. & C. � 15.01 et seq. Defense explained, see V.T.C.A., Penal Code � 2.03. Defenses to criminal responsibility, see V.T.C.A., Penal Code � 8.01 et seq. "Felony" defined, see V.T.C.A., Penal Code � 1.07. "Intentionally" defined, see V.T.C.A., Penal Code � 6.03. Labor organizations, exemption from laws relating to conspiracy in restraint of trade, see V.T.C.A., Labor Code � 101.002. "Misdemeanor" defined, see V.T.C.A., Penal Code � 1.07. Organized criminal activity, conspiring to commit offense, see V.T.C.A., Penal Code � 71.02. "Person" defined, see V.T.C.A., Penal Code � 1.07. Public utilities, conspiracy in regard to disruption of service, see Vernon's Ann.Civ.St. Art. 1446a. Punishment, Class A misdemeanor, see V.T.C.A., Penal Code � 12.21. State jail felony, see V.T.C.A., Penal Code � 12.35. State Fire Marshal, duties and authority, see V.T.C.A., Government Code �� 417.007, 417.008. Territorial jurisdiction, see V.T.C.A., Penal Code � 1.04. LAW REVIEW COMMENTARIES Conspiracy update--1977. Paul J. McClung, 40 Tex.B.J. 825 (1977). War on crime: 1981 legislation. H. D. Wendorf, 33 Baylor L.Rev. 765 (1981). LIBRARY REFERENCES 2003 Main Volume Conspiracy 23 to 41. Westlaw Topic No. 91. C.J.S. Conspiracy �� 34 to 45, 47, 49, 52 to 53, 55 to 56, 57(1), 60, 62 to 63, 65, 73 to 78.

C.J.S. RICO (Racketeer Influenced and Corrupt Organizations) � 12. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 105 ALR 5th 1, Admissibility, in Civil Proceeding, of Evidence Obtained Through Unlawful Search and Seizure. 33 ALR 3rd 335, Comment Note.--Length of Sentence as Violation of Constitutional Provisions Prohibiting Cruel and Unusual Punishment. 9 ALR 3rd 462, Comment Note.--When Criminal Case Becomes Moot So as to Preclude Review of or Attack on Conviction or Sentence. Encyclopedias TX Jur. 3d Criminal Law � 99, Generally; Elements of Offense. TX Jur. 3d Criminal Law � 102, Degree of Offense. TX Jur. 3d Criminal Law � 107, Weight and Sufficiency of Evidence. TX Jur. 3d Criminal Law � 118, Generally; Defenses Excluded. TX Jur. 3d Criminal Law � 152, Generally; Causing Innocent Person to Engage in Criminal Conduct. TX Jur. 3d Criminal Law � 1071, Sufficiency of Evidence. TX Jur. 3d Criminal Law � 4200, Excessive Fines and Cruel or Unusual Punishment. TX Jur. 3d Narcotics & Poisons � 165, Intent, Generally. Treatises and Practice Aids Charlton, 6 Tex. Prac. Series � 9.1, Introduction. Charlton, 6 Tex. Prac. Series � 9.3, Conspiracy. Charlton, 6 Tex. Prac. Series � 28.2, Engaging in Organized Criminal Activity. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 104.2, Conspiracy. Dix and Dawson, 40 Tex. Prac. Series � 2.23, Conspiracy. Dix and Dawson, 40 Tex. Prac. Series � 3.27, Special Rules -- Criminal Conspiracy and Organized Criminal Activity. UNITED STATES SUPREME COURT Drug conspiracy, necessity of overt act, see U.S. v. Shabani, 1994, 115 S.Ct. 382, 513 U.S. 10, 130 L.Ed.2d 225, on remand 48 F.3d 401, as amended.

Termination of conspiracy, government defeat of conspiracy's purpose, knowledge of conspirators, see U.S. v. Jimenez Recio, 2003, 123 S.Ct. 819, 537 U.S. 270, 154 L.Ed.2d 744, on remand 371 F.3d 1093. NOTES OF DECISIONS In general 2 Acquittal or innocence of coconspirators, instructions 43 Admissibility of evidence 20-28 Admissibility of evidence - In general 20 Admissibility of evidence - Circumstantial evidence 27 Admissibility of evidence - Documentary and demonstrative evidence 22 Admissibility of evidence - Nonconspirators, acts and statements 28 Admissibility of evidence - Overt acts, generally 21 Admissibility of evidence - Presence of accused for acts of coconspirators 25 Admissibility of evidence - Proof of conspiracy as requisite 24 Admissibility of evidence - Statements during and in furtherance of conspiracy 23 Admissibility of evidence - Termination of conspiracy 26 Agreement 5-6, 34 Agreement - In general 5 Agreement - Intent 6 Agreement - Sufficiency of evidence 34 Argument of counsel 38 Certainty or definiteness of indictment, information or complaint 17 Circumstantial evidence, admissibility of evidence 27 Circumstantial evidence, sufficiency of evidence 37 Confessions, sufficiency of evidence 31 Constitutional rights, indictment, information or complaint 16 Construction with other laws 3

Convictions of co-conspirators 45 Corroborating evidence, sufficiency of evidence 32 Documentary and demonstrative evidence, admissibility of evidence 22 Elements of offense, generally 4 Evidence warranting instructions 44 Existence of conspiracy, generally, instructions 41 Existence of conspiracy, generally, sufficiency of evidence 30 Foreseeable crimes, liability 12 Indictment, information or complaint 15-19 Indictment, information or complaint - In general 15 Indictment, information or complaint - Certainty or definiteness of indictment, information or complaint 17 Indictment, information or complaint - Constitutional rights 16 Indictment, information or complaint - Intent 18 Indictment, information or complaint - Overt acts 19 Instructions 40-44 Instructions - In general 40 Instructions - Acquittal or innocence of coconspirators 43 Instructions - Evidence warranting instructions 44 Instructions - Existence of conspiracy, generally 41 Instructions - Overt acts 42 Intent, agreement 6 Intent, indictment, information or complaint 18 Intent, sufficiency of evidence 33 Involvement in conspiracy, sufficiency of evidence 36 Liability 11, 12 Liability - In general 11 Liability - Foreseeable crimes 12 Nonconspirators, acts and statements, admissibility of evidence 28

Overt acts, generally 7 Overt acts, generally, admissibility of evidence 21 Overt acts, generally, sufficiency of evidence 35 Overt acts, indictment, information or complaint 19 Overt acts, instructions 42 Parties 13, 14 Parties - In general 13 Parties - Spouses 14 Presence of accused for acts of coconspirators, admissibility of evidence 25 Proof of conspiracy as requisite, admissibility of evidence 24 Questions of law 39 Separate offense, generally 8 Spouses, parties 14 Statements during and in furtherance of conspiracy, admissibility of evidence 23 Sufficiency of evidence 29-37 Sufficiency of evidence - In general 29 Sufficiency of evidence - Agreement 34 Sufficiency of evidence - Circumstantial evidence 37 Sufficiency of evidence - Confessions 31 Sufficiency of evidence - Corroborating evidence 32 Sufficiency of evidence - Existence of conspiracy, generally 30 Sufficiency of evidence - Intent 33 Sufficiency of evidence - Involvement in conspiracy 36 Sufficiency of evidence - Overt acts, generally 35 Termination of conspiracy 9 Termination of conspiracy, admissibility of evidence 26 Validity 1 Withdrawal from conspiracy 10

1. Validity Section 71.02 governing engaging in organized criminal activity and this section governing criminal conspiracy were not void on ground that each allowed for a conviction for the same crime but had different penalties, because this section did not apply to "offenses defined by other laws." Clayton v. State (Cr.App. 1983) 652 S.W.2d 950, certiorari denied 104 S.Ct. 719, 464 U.S. 1046, 79 L.Ed.2d 181. Conspiracy 28(1) Vernon's Ann.P.C. art. 1626 (repealed), which fixed punishment for conspiracy, did not violate Const. art. 1, � 13, providing that every person shall have remedy by due course of law nor Const. art. 1, � 3, forbidding granting of exclusive privilege and prescribing equal rights. Garza v. State (Cr.App. 1932) 122 Tex.Crim. 413, 55 S.W.2d 1042. 2. In general After an agreement to commit burglary, the owner of the house, for purposes of detection, may connive at the entry without relieving the conspirators from liability. Johnson v. State (1878) 3 Tex.Crim. 590. A "conspiracy" is an agreement entered into between two or more persons to commit a felony. Hustead v. State (Cr.App. 1922) 95 Tex.Crim. 49, 251 S.W. 1074. Conspiracy 23 A prosecution for conspiracy to swindle an insurance company lies although its accomplishment includes a conspiracy to burn an automobile. McQuinn v. State (Cr.App. 1938) 134 Tex.Crim. 375, 115 S.W.2d 926. Conspiracy 32 A "conspiracy" is more than a contract, and often has no agreement, because parties usually do not agree to violate the law, but it exists where two or more act in pursuance of a conspiracy. State v. Ford Motor Co. (Civ.App. 1943) 169 S.W.2d 504, affirmed 142 Tex. 5, 175 S.W.2d 230. A "conspiracy" is an agreement manifesting itself in words or deeds by which two or more persons confederate to do an unlawful act, or to use unlawful means to do an act which is lawful. Young v. State (Cr.App. 1947) 150 Tex.Crim. 378, 201 S.W.2d 46. Conspiracy 23.1 Crime of conspiracy is a single offense, though parties enter into a positive agreement to commit one or many felonies. Nisbet v. State (Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1524. Conspiracy 24(2) 3. Construction with other laws A conspiracy to burn an automobile willfully and with intent to defraud insurance company as prohibited by Vernon's Ann.P.C. art. 1322 (repealed) was within art. 1622 (repealed), the conspiracy statute. McQuinn v. State (Cr.App. 1938) 134 Tex.Crim. 375, 115 S.W.2d 926. Conspiracy 32

Criminal conspiracy and attempt provisions of Penal Code do not apply to violations of Controlled Substances Act (Vernon's Ann.Civ.St. art. 4476- 15). Dubry v. State (Cr.App. 1979) 582 S.W.2d 841. Conspiracy 28(3); Criminal Law

44

Criminal conspiracy could be applied to violations of Controlled Substance Act even though penal code itself was never amended to so provide, where Controlled Substance Act was amended to allow application of penal code. Woods v. State (App. 3 Dist. 1990) 801 S.W.2d 932, petition for discretionary review refused. Conspiracy 28(3) 4. Elements of offense, generally The offense of conspiracy is complete when agreement is entered into, and it is not necessary that object of conspiracy be consummated. Witt v. State (1944) 146 Tex.Crim. 627, 177 S.W.2d 781; Johnson v. State (1878) 3 Tex.Crim. 590. The crime of conspiracy is complete when unlawful agreement is entered into. Smith v. State (Cr.App.1963) 363 S.W.2d 277; Johnson v. State (1878) 3 Tex.Crim. 590; Wilson v. State (1934) 127 Tex.Crim. 152, 74 S.W.2d 1020. Elements of offense of criminal conspiracy are that a person with intent to commit a felony agrees with one or more persons that they or one or more of them will engage in conduct that would constitute the offense, and that he or one or more of them performs overt act in pursuance of agreement. Carrion v. State (App. 3 Dist.1990) 802 S.W.2d 83; Walker v. State (App. 5 Dist.1992) 828 S.W.2d 485, petition for discretionary review filed. It is not necessary, in order to establish a conspiracy to commit an offense, to prove that the persons charged came together, and actually agreed in terms to have that design and pursue it by common means. If it be proved that they pursued the same objects, often by the same means, one performing one part and another a different part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in concluding that they were engaged in a conspiracy to effect that object, and such acting together would make all principal offenders, whether bodily present at the place of the offense or not, and until the full purpose and object of the conspiracy has been consummated. Smith v. State (App. 1886) 17 S.W. 552. The conspiracy to steal is complete at the time it is entered into, without any reference to subsequent theft. Bailey v. State (Cr.App. 1900) 42 Tex.Crim. 289, 59 S.W. 900. All elements of completed offense need not be proven in conspiracy case. Skidmore v. State (Cr.App. 1975) 530 S.W.2d 316. Conspiracy 43(12) Corpus delicti of conspiracy must contain a showing of agreement to commit a crime. Brown v. State (Cr.App. 1978) 576 S.W.2d 36. Conspiracy 24(1) Commission of substantive offense is not an essential element of conspiracy charged. McCann v. State (Cr.App. 1980) 606 S.W.2d 897. Conspiracy 28(2) Corpus delicti of conspiracy is agreement and overt act in furtherance thereof. Morrison v. State (App. 2 Dist. 1982) 631 S.W.2d 242, review refused. Conspiracy 23.1 Mens rea requirement of offense of criminal conspiracy is satisfied by intent that

felony be committed. Woods v. State (App. 3 Dist. 1990) 801 S.W.2d 932, petition for discretionary review refused. Conspiracy 24.5 5. Agreement--In general The least degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all. Phillips v. State (1879) 6 Tex.Crim. 364. An "agreement" is a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing. Woodworth v. State (1886) 20 Tex.Crim. 375. Proof that the parties actually agreed in terms to a certain design and to pursue it by common means, was not essential to the establishment of the crime of conspiracy. Smith v. State (App. 1886) 17 S.W. 552. To convict under indictment for conspiracy to burn house of named person, state must establish that defendant and his co-conspirators entered into positive agreement to burn such house. Wilson v. State (Cr.App. 1934) 127 Tex.Crim. 152, 74 S.W.2d 1020. Conspiracy 43(12) Agreement between coconspirators to commit crime is not any less agreement simply because accomplishment of criminal objective is dependent upon fulfillment of condition. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for discretionary review refused. Conspiracy 24(1) Because it is the agreement that is the focus of a conspiracy, a single continuing agreement constitutes a single conspiracy offense regardless whether the object of the agreement is to commit one crime or many. Ex parte Starnes (App. 14 Dist. 1999) 993 S.W.2d 685, petition for discretionary review refused. Conspiracy 24(2) 6. ---- Intent, agreement A conspiracy cannot be committed by one person alone, and it cannot be committed by two, when there is no concurrence of purpose and mind, or when the concurrence or purpose on the part of one is unreal or feigned. Woodworth v. State (1886) 20 Tex.Crim. 375. The agreement may be entered into, and the offense be completed, although the original purpose of meeting and consultation was lawful. Lowery v. State (1867) 30 Tex. 402. A person who persuaded others to enter into a conspiracy to commit crime was guilty though he did not intend to help commit the crime. Dever v. State (Cr.App. 1895) 37 Tex.Crim. 396, 30 S.W. 1071. If alleged accomplice, in conversation with defendant, did not intend to bribe witness, there was no agreement, precluding conviction for conspiracy to bribe. Odneal v. State (Cr.App. 1931) 117 Tex.Crim. 97, 34 S.W.2d 595. Conspiracy 24 Where defendant's alleged coconspirator, who was asked by police lieutenant to cultivate friendship with defendant and to report any suspicious activity, testified that it was never his intention to go along with kidnapping allegedly proposed by defendant but, rather, that he was involved merely to get information

for lieutenant, there was no meeting of minds between alleged coconspirators, no criminal intent in minds of both individuals, and therefore there could be no conspiracy. Williams v. State (Cr.App. 1983) 646 S.W.2d 221. Conspiracy 24(7) In order to be coconspirator, defendant had to know in advance that offense was to be committed and agree in advance to aid in its commission. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for discretionary review refused. Conspiracy 24.5 Criminal responsibility as a conspirator requires proof of culpable acts made with an intent to assist in the commission of a crime before it occurs. Ed Rachal Foundation v. D'Unger (Sup. 2006) 2006 WL 1043081. Conspiracy 24.5 7. Overt acts, generally Where there is a conspiracy to kill, mere presence at scene of killing, under some circumstances, will be sufficient act of encouragement. Leslie v. State (Cr.App. 1900) 42 Tex.Crim. 65, 57 S.W. 659. Conspiracy may be established by proof which shows a concert of action or other facts and circumstances from which the natural inference arises that the wrongful, overt acts were committed in furtherance of a common design, intention or purpose of the conspirators. Mims v. Bohn (Civ.App. 1976) 536 S.W.2d 568. Conspiracy 19 Person may be guilty of criminal conspiracy by doing nothing more than agreeing to participate in conspiracy, so long as another coconspirator does some overt act in furtherance of conspiracy. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for discretionary review refused. Conspiracy 24(1); Conspiracy 27 8. Separate offense, generally Substantive offense of conspiracy to commit felony being complete when contract or conspiracy is entered into, it is independent offense for which parties can be prosecuted and sentenced. Rice v. State (1932) 121 Tex.Crim. 68, 51 S.W.2d 364; Braly v. State (1934) 125 Tex.Crim. 374, 68 S.W.2d 504; Wilson v. State (1934) 127 Tex.Crim. 152, 74 S.W.2d 1020. Conspiracy to commit a crime and commission of substantive crime which is object of conspiracy are separate and distinct offenses. Wilson v. State (1934) 127 Tex.Crim. 152, 74 S.W.2d 1020; Farrington v. State (Cr.App.1972) 489 S.W.2d 607. A conspiracy to commit burglary and the burglary committed in pursuance thereof are different offenses and a conviction of one will not bar a prosecution for the other. Whitford v. State (App. 1887) 6 S.W. 537, 5 Am.St.Rep. 896. On the trial of an indictment for conspiracy to commit burglary, which was made a substantive offense by Vernon's Ann.P.C. repealed arts. 800 to 804, though the burglary was not committed, a conviction of burglary would not bar a prosecution for conspiracy to commit, as the two offenses could be carved out of the same transaction. Whitford v. State (App. 1887) 6 S.W. 537, 5 Am.St.Rep. 896. Conviction of theft was not a bar to prosecution for conspiracy to steal. Bailey v. State (Cr.App. 1900) 42 Tex.Crim. 289, 59 S.W. 900.

The offense of conspiracy to commit murder having been complete at the time of entering into the conspiracy, it was an independent offense for which the parties could be prosecuted and punished though the offense contemplated was not consummated. King v. State (Cr.App. 1919) 86 Tex.Crim. 407, 216 S.W. 1091. Conspiracy 27 A conspiracy to commit a crime is a separate and distinct crime from substantive or "object" offense. McCann v. State (Cr.App. 1980) 606 S.W.2d 897. Conspiracy 28(1) Alleged conspiracy to commit murder was not lesser-included offense of murder as accomplice, even if agreement to commit murder can be inferred from acts of parties; instruction in murder trial did not permit jurors to infer agreement from overt acts. Ex parte Brosky (App. 2 Dist. 1993) 863 S.W.2d 783, rehearing overruled. Indictment And Information 191(4) Murder as party or accomplice is not "same offense" for double jeopardy purposes as conspiring to murder or engaging in organized criminal activity; offense of murder requires proof of death, and conspiring and engaging in organized criminal activity require proof of agreement not required by offense of murder as party. Ex parte Brosky (App. 2 Dist. 1993) 863 S.W.2d 783, rehearing overruled. Double Jeopardy 151(1) 9. Termination of conspiracy A conspiracy is not finally terminated until everything has been done that was contemplated to be done by the conspirators. Robins v. State (1938) 134 Tex.Crim. 617, 117 S.W.2d 82; Schoenberg v. State (App.1981) 624 S.W.2d 808, review refused. 10. Withdrawal from conspiracy The offense of conspiracy to commit burglary is complete when the agreement to burglariously enter a house is entered into, though the parties abandon the object of the conspiracy. Johnson v. State (1878) 3 Tex.Crim. 590. The fact that a person, after entering into an agreement with another to commit a burglary, withdrew from the transaction, did not prevent his conviction for the conspiracy. Dill v. State (Cr.App. 1895) 35 Tex.Crim. 240, 33 S.W. 126, 60 Am.St.Rep. 37. Conspiracy 40 When one entered into a conspiracy to commit a crime, even though he withdrew before the crime had been committed, he could be convicted for entering into the conspiracy. Dill v. State (Cr.App. 1895) 35 Tex.Crim. 240, 33 S.W. 126, 60 Am.St.Rep. 37. 11. Liability--In general Whether co-conspirators proceed severally or collectively, each is responsible for the acts of all as though performed by himself alone. Blain v. State (App. 1892) 18 S.W. 862. Where a crime committed is not in any way connected with a conspiracy, but is the

independent act of one of the conspirators, though done while he was engaged in the common purpose, the others are not legally responsible therefor, but if the crime is in furtherance of the common purpose, and is such an offense as might have been and should have been contemplated would result from the execution of the conspiracy, and it was so executed, then all engaged in the unlawful purpose are equally guilty, though at the time they may have been engaged in some other part of the common purpose. Serrato v. State (Cr.App. 1914) 74 Tex.Crim. 413, 171 S.W. 1133. Where the state claimed a killing was the result of a conspiracy, accused cannot be convicted for the acts of his co-conspirators, unless he conspired to take deceased's life or conspired to do an unlawful act and the killing was the result of an attempt to perpetrate it. Cline v. State (Cr.App. 1915) 77 Tex.Crim. 281, 178 S.W. 520. Homicide 612 The acts of all parties to a conspiracy in furthering it are the acts of all parties to it. Glenn H. McCarthy, Inc. v. Knox, 1945, 186 S.W.2d 832, error refused. Conspiracy 13 It makes no difference at what time any one entered into conspiracy since every one who does enter into a common purpose or design is generally deemed in law a party to every act which has before been done by others, and to every act which may afterwards be done by any of others, in furtherance of such common design. Viera v. State (Cr.App. 1951) 156 Tex.Crim. 631, 245 S.W.2d 257. Conspiracy 41 12. ---- Foreseeable crimes, liability When a conspiracy to commit an unlawful act exists, and in the execution of the conspiracy one of the persons commits a homicide, all persons engaged in the conspiracy are guilty of murder. Mitchell v. State (1896) 36 Tex.Crim. 278, 33 S.W. 367, 36 S.W. 456; Isaacs v. State (1897) 36 Tex.Crim. 505, 38 S.W. 40. When two or more persons agree to commit an offense and from the nature of the offense it is reasonably probable that death will result to the victim, and death does result, all the parties connected with the conspiracy would be responsible for the homicide. Blain v. State (App. 1892) 18 S.W. 862. If defendant and another combine to beat a person, and in the attempt to do so the co-conspirator kill such other person, both would be guilty of murder. Mitchell v. State (Cr.App. 1895) 36 Tex.Crim. 278, 33 S.W. 367, reversed 36 Tex.Crim. 278, 36 S.W. 456. Defendant having helped to set in motion that which resulted in another's death was guilty of murder; he was an accomplice whether he instigated the act himself or his co-conspirators instigated it. Isaacs v. State (Cr.App. 1896) 36 Tex.Crim. 505, 38 S.W. 40. Each conspirator is responsible for everything done by his confederate which follows immediately in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Henry v. State (Cr.App. 1899) 54 S.W. 592. A conspirator to whip one person would not be guilty, where one of the conspirators killed another person upon an independent motive of his own, and although defendant was present when one was killed by his fellow conspirator, yet, if he did not know of the conspirator's intent to commit an unlawful act which

might lead to the killing, or, if present, did not aid such conspirator, he would be guilty of no offense, and no subsequent ratification of a murder by a coconspirator on his own independent motive would make defendant liable as a principal, if not liable as such at the time of its commission. Buckley v. State (Cr.App. 1915) 78 Tex.Crim. 378, 181 S.W. 729. In prosecution for murder, knowledge of defendant that the leader of a burglary expedition was a dangerous man was sufficient to charge defendant with knowledge that his companion had a pistol and would kill an officer who might apprehend him while engaged in the burglary. Garcia v. State (Cr.App. 1948) 151 Tex.Crim. 593, 210 S.W.2d 574. Homicide 612 When the thing done is an independent act of one of conspirators, though done while he was engaged in common purpose, the others are not legally responsible therefor, but if the crime is in furtherance of the common purpose and is such an offense as should have been contemplated would result from the execution of a planned burglary then all engaged in the unlawful purpose are equally guilty. Garcia v. State (Cr.App. 1948) 151 Tex.Crim. 593, 210 S.W.2d 574. Homicide 612 Where several people are acting together in pursuit of an unlawful act, each is liable for unplanned and unintended collateral crimes committed by other principals if the crimes are the foreseeable, ordinary and probable consequences of preparation or execution of the unlawful act. Thompson v. State (Cr.App. 1974) 514 S.W.2d 275. Criminal Law 59(4) Mandatory life sentence, as applied to defendant convicted of capital murder under conspiracy theory of the law of parties in prosecution in which state did not seek death penalty, did not constitute cruel or unusual punishment under Federal or State Constitution; reasonable fact finder could have found that defendant should have anticipated that, during the carrying out of conspiracy to kidnap victim's wife, someone could be murdered. Cienfuegos v. State (App. 1 Dist. 2003) 113 S.W.3d 481, rehearing overruled, petition stricken, petition for discretionary review refused. Sentencing And Punishment 1495 13. Parties--In general Where a party was charged as an accomplice, under the statute, with the commission of a felony, the case assumed the nature to some extent of a conspiracy, though the statute made a distinction between a conspiracy as an offense and an offense committed by a principal instigated by an accomplice; a conspiracy being complete when a positive agreement had been made between the parties to commit a felony, while to be an accomplice the crime must have been actually committed by the principal. Cooper v. State (Cr.App. 1913) 69 Tex.Crim. 405, 154 S.W. 989. Criminal Law 59(1) Where one was a party to conspiracy to commit theft and was not otherwise connected with the taking of the property, and received the property after it was stolen, he did not become a "principal" to the theft unless at the time he received the property he did so under an agreement to dispose of it and divide the proceeds or benefits among the other conspirators. Mershon v. State (Cr.App. 1941) 142 Tex.Crim. 575, 155 S.W.2d 372. Larceny 27 To be a coconspirator one must know that an offense is to be committed and agree in advance to aid in its commission. Thrash v. State (Cr.App. 1960) 170 Tex.Crim. 97, 338 S.W.2d 447. Conspiracy 24(3)

Persons acting together in burglary were coconspirators. Williams v. State (Cr.App. 1961) 170 Tex.Crim. 595, 343 S.W.2d 263. Burglary 16 Persons acting together in theft were co-conspirators. Williams v. State (Cr.App. 1961) 170 Tex.Crim. 595, 343 S.W.2d 263. Burglary 16 14. ---- Spouses, parties Rev.P.C.1895, arts. 953 to 960 made no exception in favor of the wife. Husband and wife could conspire together without the intervention of a third person to commit a murder and if either was being tried for the consummated offense, the doctrine of conspiracy, so far as the rules were concerned, was applicable under our system. Smith v. State (Cr.App. 1905) 48 Tex.Crim. 233, 89 S.W. 817. Criminal Law 423(7) A husband who conspired with his wife to obtain money from complaining witness by false promises to treble his money was guilty of "conspiracy" since under the Spanish civil law relating to marriage, as it applied in Texas, the common-law fiction of a wife losing her identity in that of her husband was nonexistent. Marks v. State (Cr.App. 1942) 144 Tex.Crim. 509, 164 S.W.2d 690. Husband And Wife 107 Under the Spanish civil law relating to marriage as it was established in Texas, the fiction of a wife losing her identity in that of her husband no longer existed, and the wife could not only enter into a conspiracy with the husband in the commission of a crime, but could be held for the substantive crime of a conspiracy with her spouse, notwithstanding Vernon's Ann.P.C. art. 4 (repealed) and Vernon's Ann.C.C.P.1925, art. 24 (see, now, art. 1.27), providing that when a statutory rule was not found governing any transaction, then the rules of the common law had to be applied. Marks v. State (Cr.App. 1942) 144 Tex.Crim. 509, 164 S.W.2d 690. Husband And Wife 107 15. Indictment, information or complaint--In general If a conspiracy was to kill another, it was included within conspiracy to commit murder. King v. State (Cr.App. 1919) 86 Tex.Crim. 407, 216 S.W. 1091. Indictment And Information 191(.5); Indictment And Information 191(4) Conspiracy to commit a number of crimes may be included in a single count of indictment without rendering indictment duplicitous and gist of crime being conspiracy it may include a single offense or several. Nisbet v. State (Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1524. Indictment And Information 125(5.5) Indictment alleging in one count that defendant and another did unlawfully conspire to unlawfully take and steal money and property from city of Houston, that they further conspired to take and steal money, funds and checks from various unknown persons, and that they further conspired to accept and agree to accept bribes, alleged single conspiracy to commit a felony and under indictment it was not necessary that evidence establish that conspiracy entered into extended to all of the intended offenses, and when State abandoned allegation that intended offense was felony theft from unknown persons, verdict of guilty was all that was required. Nisbet v. State (Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1524. Conspiracy 43(12);

Conspiracy

48.3; Indictment And Information

125(5.5)

Inclusion of charge of criminal conspiracy to misapply fiduciary property was permissible amendment of the indictment even though it only alleged personal liability on the part of co-defendants in misapplying fiduciary property of a gas supply company, since indictment implicitly authorized conviction on the law of parties. Cantrell v. State (App. 6 Dist. 2001) 54 S.W.3d 41, rehearing overruled, petition for discretionary review granted, opinion after remand from court of criminal appeals 75 S.W.3d 503, petition for discretionary review refused, appeal from denial of habeas corpus 97 S.W.3d 722, denial of habeas corpus affirmed 112 S.W.3d 753. Indictment And Information 159(4) 16. ---- Constitutional rights, indictment, information or complaint An indictment for conspiracy to commit a felony, manufacturing intoxicating liquor, was not open to the objection that at the time of the enactment of the statute penalizing conspiracy to commit a felony there was no such felony offense as the unlawful manufacture of intoxicating liquor, as the statute included within its prohibition a conspiracy to commit any act which might thereafter be made a felony. Buckhannan v. State (Cr.App. 1923) 95 Tex.Crim. 1, 252 S.W. 509. Conspiracy 28 Even if indictment for conspiracy to deliver cocaine did not provide sufficient notice, defendant failed to point out what defense to any overt acts he would have had if sufficient notice had been given, and, thus, any error was harmless. Woods v. State (App. 3 Dist. 1990) 801 S.W.2d 932, petition for discretionary review refused. Criminal Law 1167(1) Statute governing convictions under conspiracy theory of the law of parties did not violate federal due process or state due course of law principles as applied in capital murder prosecution; reasonable fact finder could find that defendant should have anticipated a murder in the carrying out of conspiracy to kidnap victim's wife. Cienfuegos v. State (App. 1 Dist. 2003) 113 S.W.3d 481, rehearing overruled, petition stricken, petition for discretionary review refused. Conspiracy 23.5; Constitutional Law 258(3.1) 17. ---- Certainty or definiteness of indictment, information or complaint The indictment need not set out the offense with the same particularity for an unexecuted as for an executed conspiracy. Brown v. State (1877) 2 Tex.Crim. 115; Mason v. State (1877) 2 Tex.Crim. 192. An indictment charging a conspiracy to commit an offense need not allege the offense intended with the fullness or particularity necessary in an indictment charging only the commission of the intended offense. Carter v. State (1938) 135 Tex.Crim. 457, 116 S.W.2d 371, appeal dismissed, 59 S.Ct. 71, 305 U.S. 557, 83 L.Ed. 351; Nisbet v. State (1960) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1525; Farrington v. State (Cr.App.1972) 489 S.W.2d 607. The parties to a conspiracy to commit crime must be named, and there must be at least two principals. Dever v. State (Cr.App. 1895) 37 Tex.Crim. 396, 30 S.W. 1071. See, also, Woodworth v. State (1886) 20 Tex.Crim. 375. Conspiracy 43(1)

An indictment for conspiracy to commit a felony, manufacturing intoxicating liquor, need not allege that accused and his co-conspirators did not have a legal permit authorizing them to manufacture intoxicating liquor. Buckhannan v. State (Cr.App. 1923) 95 Tex.Crim. 1, 252 S.W. 509. Conspiracy 43(6) That indictment of one defendant only charged that defendant conspired with four named persons did not preclude conviction where defendant conspired with only one of named persons. Echols v. State (Cr.App. 1937) 133 Tex.Crim. 121, 109 S.W.2d 190. Conspiracy 43(12) Indictment alleging 22 overt acts undertaken in furtherance of drug conspiracy giving nature of act, place, and date sufficiently tracked conspiracy statute to put defendant on notice of specific conduct with which he was charged. Woods v. State (App. 3 Dist. 1990) 801 S.W.2d 932, petition for discretionary review refused. Indictment And Information 110(10) 18. ---- Intent, indictment, information or complaint Indictment for conspiracy to obtain $1,250 by false pretense of performing eye operation, which averred that defendant knew prosecuting witness was not suffering from ailment which he and another agreed to represent to witness that he was suffering from, was sufficient to show defendant's knowledge of falsity. Baker v. State (Cr.App. 1934) 126 Tex.Crim. 498, 72 S.W.2d 296. Conspiracy 43(4) An indictment charging conspiracy to swindle an insurer by burning an insured automobile must aver that parties to conspiracy agreed that in making claim for insurance money it should be falsely represented to insurer that burning was within terms of policy, especially in the absence of an averment that mere filing of claim is sufficient for collection. McQuinn v. State (Cr.App. 1938) 134 Tex.Crim. 375, 115 S.W.2d 926. Conspiracy 43(9) An indictment charging that defendant and an automobile owner entered an agreement whereby defendant was to burn automobile and owner would collect insurance money without revealing that burning was fraudulent was insufficient to charge defendant with a conspiracy to swindle in that it did not affirmatively allege an intent to swindle the insurer. McQuinn v. State (Cr.App. 1938) 134 Tex.Crim. 375, 115 S.W.2d 926. Conspiracy 43(9) 19. ---- Overt acts, indictment, information or complaint Under Rev.P.C.1911, arts. 1433, 1434, it was not necessary in charging conspiracy to allege what the conspirators undertook to do in furtherance thereof, and such unnecessary allegations could not be looked to in aid of the allegations of conspiracy. Carter v. State (Cr.App. 1922) 91 Tex.Crim. 96, 237 S.W. 285. Where Texas indictment charged defendant with unlawfully conspiring with others to unlawfully take and steal money of value in excess of $50 but did not allege any overt act in connection with alleged conspiracy, and under New York law a person could not be convicted of conspiracy unless overt act was alleged and proved to have been committed by one of conspirators in furtherance of conspiracy, and demanding state was unable or unwilling to furnish witnesses who could substantiate overt acts by defendant which could form basis of conspiracy under New York law, grant of governor's warrant was improper. In re Taylor, 1971, 66 Misc.2d 1006, 323 N.Y.S.2d 128. Extradition And Detainers 32

20. Admissibility of evidence--In general Where one of several defendants charged with conspiracy has been acquitted, the record of acquittal is evidence for another defendant subsequently tried. Paul v. State (1882) 12 Tex.Crim. 346. Collateral evidence in proof of conspiracy to steal cattle was improperly admitted. Rix v. State (Cr.App. 1894) 33 Tex.Crim. 353, 26 S.W. 505. When a conspiracy to commit burglary has been shown, any fact or circumstance tending to show defendant's presence at the time of the commission of the offense is admissible. Mixon v. State (Cr.App. 1896) 36 Tex.Crim. 66, 35 S.W. 394. The order in which conspirators' testimony, showing conspiracy to commit crime charged, is admitted does not affect admissibility of evidence of another conspirator's acts. Hamilton v. State (Cr.App. 1942) 145 Tex.Crim. 78, 165 S.W.2d 737. Criminal Law 680(1) Asking of questions concerning existence of conspiracy to kill others in which alleged conspirators called themselves, "Murder, Incorporated," was proper, in prosecution of defendant for being accomplice to murder, where it was established that named group had as its purpose killing of others. Tucker v. State (Cr.App. 1970) 461 S.W.2d 630, certiorari denied 91 S.Ct. 2230, 403 U.S. 919, 29 L.Ed.2d 696. Criminal Law 427(4) An accused is not entitled to prevent the state from proving the name of a notorious conspirator. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 422(1) Trial court did not commit error in robbery prosecution by permitting coindictee to describe one of the conspirators, whose last name was not known by the witness, or in permitting proof that unnamed conspirator lived with defendant and of conspirator's part in bringing about the robbery. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 422(1) Where two or more people take conspiracy is admissible even charged in indictment. Phelps denied 92 S.Ct. 444, 404 U.S. part in commission of a felony, evidence of the though the substantive crime of conspiracy is not v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari 983, 30 L.Ed.2d 367. Criminal Law 422(1)

21. ---- Overt acts, generally, admissibility of evidence In a prosecution for homicide in the furtherance of a conspiracy to illegally organize in Texas an armed company to invade Mexico, evidence that accused, a member of the company, secured arms when he went to the camp, carried them all the time while he was in the company, and was armed when arrested, was admissible as showing that, while in the United States, the company was prepared to resist all those who might interfere with their purpose, together with the nature of the resistance that would be offered. Gonzales v. State (Cr.App. 1914) 74 Tex.Crim. 458, 171 S.W. 1146. Any act or statement done or made in furtherance or pursuant to conspiracy to

commit crime is admissible. Hester v. State (Cr.App. 1935) 128 Tex.Crim. 52, 78 S.W.2d 981. Where two are acting together in the commission of an offense, the act of one to prevent the apprehension of the other or both is admissible as a circumstance showing guilt. Lemley v. State (Cr.App. 1937) 135 Tex.Crim. 148, 117 S.W.2d 435. Criminal Law 423(4) In arson trial, testimony of defendant's coconspirators, as to acts and conduct of another conspirator in placing gasoline can in burned filling station before such conspirator and witnesses met defendant, was admissible, as such acts were in furtherance of consummation of conspiracy. Hamilton v. State (Cr.App. 1942) 145 Tex.Crim. 78, 165 S.W.2d 737. Criminal Law 423(3) Generally, acts or declarations of one conspirator to be admissible against another must have occurred during pendency of criminal enterprise and in furtherance of its objects, but acts and declarations which occurred while participating in offense for which conspiracy was formed are also admissible as part of res gestae. Young v. State (Cr.App. 1947) 150 Tex.Crim. 378, 201 S.W.2d 46. Criminal Law 364(1); Criminal Law 423(1) When two or more are acting together with an unlawful intent in commission of an offense, common design and acting together makes them ipso facto conspirators and merges conspiracy to do the act in the act itself; and previous acts and declarations of any principal offender in pursuance of agreed plan and tending to throw light upon it or motive with which it was committed is admissible against all whether tried jointly or separately. Young v. State (Cr.App. 1947) 150 Tex.Crim. 378, 201 S.W.2d 46. Criminal Law 423(1) Evidence of any action of either of conspirators relative to carrying out of conspiracy would be admissible against either or both of them. Welch v. State (Cr.App. 1949) 153 Tex.Crim. 416, 219 S.W.2d 804. Criminal Law 423(1) Testimony that defendant and other conspirators had stated that purpose of the robbery was to get funds to buy arms through the Cuban Embassy in Canada was admissible to show motive. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 342 22. ---- Documentary and demonstrative evidence, admissibility of evidence The fact of possession by one of several defendants of goods belonging to deceased is admissible. Clark v. State (1890) 28 Tex.Crim. 189, 12 S.W. 729; Conde v. State (1894) 33 Tex.Crim. 10, 24 S.W. 415; Rix v. State (1894) 33 Tex.Crim. 353, 26 S.W. 505. Where in a murder case conspiracy was shown, a bill of sale purporting to convey from deceased to defendant's co-conspirator certain goods found in the coconspirator's possession was properly admitted in evidence. Post v. State (1881) 10 Tex.Crim. 598. Where the evidence in a burglary case showed a conspiracy, it was not error to admit evidence of finding of the fruits of the crime in defendant's house in defendant's absence. Jackson v. State (App. 1890) 13 S.W. 451, 19 Am.St.Rep. 839. Burglary 38 At the place of the robbery tracks of two persons were found, both with

peculiarities; evidence of both tracks was admissible against each defendant. Angley v. State (Cr.App. 1896) 35 Tex.Crim. 427, 34 S.W. 116. On trial for conspiracy to commit arson, a letter written by a third party after the accomplishment of the conspiracy, though it bore the name of one of the conspirators, and was addressed to defendant, but never given to him, was inadmissible against him. Dawson v. State (Cr.App. 1897) 38 Tex.Crim. 9, 40 S.W. 731. Criminal Law 433 Where decedent was killed as an incident to a conspiracy to illegally organize an armed force in Texas to invade Mexico, in accordance with a certain political party, and accused testified that he was a subscriber to a newspaper, and that one of the principal things which induced him to join the company was articles in the paper, and that the principles announced in the paper were those of the party to which he belonged and joined the company to carry out, a translated copy of the paper was admissible as showing the purpose for which the conspiracy was organized and for which the defendant joined it. Gonzales v. State (Cr.App. 1914) 74 Tex.Crim. 468, 171 S.W. 1149. In a prosecution for homicide alleged to have been committed in the furtherance of a conspiracy to organize in Texas an armed force to invade Mexico, personal property found on one of the conspirators at the camp ground, include a manifesto, battle flag, bugle, guns, bayonets, dynamite, and other munitions of war, and testimony concerning where and what was found, was admissible to show the conspiracy and its purpose. Martinez v. State (Cr.App. 1914) 75 Tex.Crim. 416, 171 S.W. 1153. Homicide 981 In prosecution for conspiring to commit arson of an insured house, conveyed to accused by a husband and wife as their homestead, certified copy of record of deed, in which the husband was the only acknowledging grantor, was prima facie sufficient to establish proof of accused's ownership by deed or record, despite Vernon's Ann.Civ.St. repealed arts. 1300, 3726. Cox v. State (Cr.App. 1925) 100 Tex.Crim. 172, 272 S.W. 490. In prosecution for robbery, admission of telegram from one conspirator addressed to accused at his home which stated that conspirator and victim would be in certain town on night offense was to be committed, and testimony by conspirator that another member of conspiracy had sent it to accused, was not error. Johnson v. State (Cr.App. 1934) 128 Tex.Crim. 12, 78 S.W.2d 965. In prosecution for conspiracy to commit a felony, where witness was asked on cross-examination as to whether he had told certain things to grand jury and witness answered that he did not remember such testimony, and there was nothing to show that witness' testimony before grand jury was in fact reduced to writing, or that such testimony was at variance with testimony at trial, trial court's refusal to require prosecutor to produce grand jury testimony of witness was not error. Nisbet v. State (Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1524. Criminal Law 627.9(4) Handwritten list of weapons which was found in defendant's purse when she was arrested was admissible in evidence in robbery prosecution as proof of motive for conspiracy to commit robbery. Phelps v. State (Cr.App. 1970) 462 S.W.2d 310, certiorari denied 92 S.Ct. 444, 404 U.S. 983, 30 L.Ed.2d 367. Criminal Law 342 23. ---- Statements during and in furtherance of conspiracy, admissibility of evidence

Defendant's objection to male co-conspirator's suggestion to murder victim and his friend because defendant was already facing aggravated assault charges and did not want any more trouble was admissible as a statement made by a co-conspirator during the course and in furtherance of the conspiracy; defendant was a member of the conspiracy to rob victim and his friend, and defendant made his statement while the conspirators were discussing their robbery plans. Thompson v. State (App. 12 Dist. 2001) 54 S.W.3d 88, habeas corpus granted 2003 WL 22410064, petition for discretionary review refused. Criminal Law 423(5) 24. ---- Proof of conspiracy as requisite, admissibility of evidence Conspiracy is not required in all instances to be proven prior to introduction of any statements of coconspirators in prosecution of conspirator. Sapet v. State (Cr.App. 1954) 159 Tex.Crim. 620, 266 S.W.2d 154. Criminal Law 427(3) In prosecution for offense of accomplice to murder with malice, admission of testimony of witness, before any evidence of conspiracy, that she saw alleged coconspirator of defendant at place of business of witness on day of killing and that he had stated to witness that he had a job to do and that he was going to see defendant, was properly admitted, over objection that there was no showing of a conspiracy. Sapet v. State (Cr.App. 1954) 159 Tex.Crim. 620, 266 S.W.2d 154. Criminal Law 427(3) Error in admitting into evidence over objection the oral and written statements made by alleged coconspirator after termination of alleged conspiracy, without sufficient proof of conspiracy, was prejudicial. Chapman v. State (Cr.App. 1971) 470 S.W.2d 656. Criminal Law 1169.7 25. ---- Presence of accused for acts of coconspirators, admissibility of evidence Statements or acts of conspirators done or said before conspiracy is consummated, in furtherance of or pursuant to the common object, whether done or said in presence of other conspirators or not, are admissible against any or all of conspirators. Johnson v. State (1935) 128 Tex.Crim. 12, 78 S.W.2d 965; Carter v. State (1938) 135 Tex.Crim. 457, 116 S.W.2d 371, appeal dismissed 59 S.Ct. 71, 305 U.S. 557, 83 L.Ed. 351; Hamilton v. State (1942) 145 Tex.Crim. 78, 165 S.W.2d 737; Saddler v. State (1959) 167 Tex.Crim. 309, 320 S.W.2d 146. J.'s threats, made in defendant's absence, after J.'s fight with deceased were admissible against defendant, it being left to the jury to say whether the conspiracy was then formed, in which case only they were to consider them. Blain v. State (Cr.App. 1894) 33 Tex.Crim. 236, 26 S.W. 63. In prosecution for being accomplice to arson, admitting testimony of an accomplice witness that he told wife and son in absence of accused that accused offered him $50 to burn house, and of wife and son that witness had told them of offer was error, notwithstanding that accused on cross-examination asked whether witness had not testified that he told certain persons in nearby town about fire. Carlyle v. State (Cr.App. 1934) 126 Tex.Crim. 643, 72 S.W.2d 911. Criminal Law 427(4) Any evidence of an act done in furtherance of a conspiracy during its pendency, even though it be out of presence of coconspirators, is admissible against conspirator. Grant v. State (Cr.App. 1940) 140 Tex.Crim. 46, 143 S.W.2d 383.

Criminal Law

423(2)

In prosecution for rape, committed by defendant pursuant to conspiracy with two companions to ravish prosecutrix and two other girls, victims' testimony as to what other conspirators said and did during and in furtherance of conspiracy was admissible against defendant, though such statements were made and acts done in his absence. Riddle v. State (Cr.App. 1947) 150 Tex.Crim. 419, 201 S.W.2d 829. Criminal Law 423(2) Where one of the alleged coconspirators of defendant warned father of deceased that killers had been hired to kill father of deceased, that defendant was the leader of the killers, and that alleged coconspirator was in on the plot, and that he was to provide the alibi for the actual killer, such conversation was admissible against defendant in prosecution for offense of accomplice to murder with malice of deceased, who had been mistaken for his father by killer. Sapet v. State (Cr.App. 1954) 159 Tex.Crim. 620, 266 S.W.2d 154. Criminal Law 422(1) Acts and declarations of coconspirator made outside defendant's presence during furtherance of conspiracy were not admissible in absence of proof of existence of conspiracy. Chapman v. State (Cr.App. 1971) 470 S.W.2d 656. Criminal Law 427(2) Hearsay statements were insufficient to establish conspiracy so as to make acts and declarations of coconspirator, made outside defendant's presence, admissible. �Chapman v. State (Cr.App. 1971) 470 S.W.2d 656. Criminal Law 427(5) Proof of conspiracy, so as to make acts and declarations of coconspirator made outside defendant's presence admissible against him, must come from sources independent of testimony of coconspirators. Chapman v. State (Cr.App. 1971) 470 S.W.2d 656. Criminal Law 427(4) 26. ---- Termination of conspiracy, admissibility of evidence Where decedent was killed as incidental to a conspiracy to organize in Texas an armed force to invade Mexico, in order to prevent a discovery of the conspiracy, which did not terminate until the conspirators' arrest, evidence of all that took place and what each of the conspirators said from the time of their discovery at their rendezvous and until they were arrested was admissible, in a prosecution against each of them for the homicide. Martinez v. State (Cr.App. 1914) 75 Tex.Crim. 416, 171 S.W. 1153. In prosecution for theft of cotton, admission of statements of two alleged accomplices that were made on day after robbery, out of defendant's presence, after money derived from sale of stolen cotton was alleged to have been divided between defendant and his two accomplices, was error. Hester v. State (Cr.App. 1935) 128 Tex.Crim. 52, 78 S.W.2d 981. Rule which in absence crime, has possession committed. renders inadmissible acts or admissions of co-conspirator done or made of defendant after conspiracy has been terminated, by commission of no application where it can be shown that co-conspirator was found in of fruits of crime or weapon or instrument with which crime was Catching v. State (Cr.App. 1962) 364 S.W.2d 691. Criminal Law 424(3)

Where statements allegedly made by coconspirator outside defendant's presence were made almost a month after commission of offense and after both parties had been arrested, it was clear that any conspiracy had terminated and statements were not admissible as statements made during furtherance of conspiracy. Chapman v. State

(Cr.App. 1971) 470 S.W.2d 656. Criminal Law

424(3)

Evidence, that, as they were leaving robbery victim defendant had beaten, witness asked defendant how he could do anything like that and if he had ever done it before and defendant answered that he had done it 11 times before, was admissible as statement of one coprincipal or coconspirator to another, where conversation occurred while they were in car of robbery victim, which was still being used by robbers and which they intended to use after robbery. Lamberson v. State (Cr.App. 1974) 504 S.W.2d 894. Criminal Law 423(9) 27. ---- Circumstantial evidence, admissibility of evidence Greater latitude is allowed in the admission of circumstantial evidence in conspiracy cases than in others because the conspiracy can seldom be established by direct testimony. Carter v. State (Cr.App. 1937) 135 Tex.Crim. 457, 116 S.W.2d 371, appeal dismissed 59 S.Ct. 71, 305 U.S. 557, 83 L.Ed. 351. Conspiracy 45 Because conspirators' work is often clandestine in nature, direct evidence is not required to support a conviction for criminal conspiracy; circumstantial evidence will suffice. Cantrell v. State (App. 6 Dist. 2002) 75 S.W.3d 503, rehearing overruled, petition for discretionary review refused, appeal from denial of habeas corpus 97 S.W.3d 722, denial of habeas corpus affirmed 112 S.W.3d 753. Conspiracy 47(2) 28. ---- Nonconspirators, acts and statements, admissibility of evidence In a prosecution for murder, where there is evidence that a number of people took part in the homicide, and that defendant was among them, exclusion of evidence offered by defendant to show threats and ill feeling against deceased of a person not indicted with the others, if error, is harmless, since the presence of such person and participation in the crime could not benefit defendant. Harris v. State (Cr.App. 1892) 31 Tex.Crim. 411, 20 S.W. 916. Homicide 1038 In prosecution for conspiring to use a forged tender in movement and transportation of oil, testimony as to an attempt to bribe an employee of Railroad Commission by one not charged as a conspirator, which attempt occurred long after culmination of alleged conspiracy, was objectionable as "hearsay" and as "res inter alios acta," where defendant was not shown to have been present at attempted bribery or to have had any connection therewith. Feldman v. State (Cr.App. 1941) 141 Tex.Crim. 306, 147 S.W.2d 773, rehearing denied 141 Tex.Crim. 306, 148 S.W.2d 835. Criminal Law 338(4); Criminal Law 419(10) 29. Sufficiency of evidence--In general Proof that defendant and another were acting together in selling marijuana was sufficient to establish a conspiracy between them to commit the offense. Saddler v. State (1959) 167 Tex.Crim. 309, 320 S.W.2d 146; Morgan v. State (Cr.App.1975) 519 S.W.2d 449. Evidence that conspiracy to steal money from bank by exchange of checks with depositor of another bank, if consummated, would not have deprived bank of more than $49.18 did not sustain conviction for conspiracy since theft of less than $50

was mere misdemeanor. Perry v. State (Cr.App. 1936) 130 Tex.Crim. 74, 92 S.W.2d 442. Conspiracy 47(11) Evidence was insufficient to sustain conviction on charge of conspiring to commit a felony by entering into an agreement to unlawfully and fraudulently take and steal checks and currency by becoming engaged in motor vehicle accidents and then filing a claim against insurers. Smith v. State (Cr.App. 1963) 363 S.W.2d 277. Conspiracy 47(4) Where there was no indication that agreement among witness, defendant and others to steal cattle contemplated multiple offenses, that the witness was considered by himself or the others to be part of the group for second theft, which occurred while he was out of the State, or that he was to receive proceeds from that theft, the conspiracy for the first theft terminated when the spoils were divided, and thus witness was not an accomplice as to the second theft. Schoenberg v. State (App. 14 Dist. 1981) 624 S.W.2d 808, review refused. Criminal Law 507(1) Evidence was sufficient to support guilty verdict to charge of conspiracy to commit arson, where witness testified that defendant approached him with request to burn house, that witness refused, that defendant later told witness that someone else had been found to do job, and that witness later agreed to assist defendant by storing some of his belongings so that they would be saved from fire. Saunders v. State (App. 4 Dist. 1990) 794 S.W.2d 91, petition for discretionary review granted, affirmed 817 S.W.2d 688, rehearing on petition for discretionary review denied. Conspiracy 47(3.1) Evidence was legally sufficient to establish the defendant knowingly conspired to misapply fiduciary property, where co-conspirators testified as to the conspiracy, and state presented evidence that defendant signed a "conflict of interest" policy that prohibited him from entering into transactions against the interest of natural gas company for his own personal gain, and defendant and co-conspirators rigged natural gas contracts, which effectively lowered the amount of money natural gas company could demand for its gas, and split the proceeds. Cantrell v. State (App. 6 Dist. 2002) 75 S.W.3d 503, rehearing overruled, petition for discretionary review refused, appeal from denial of habeas corpus 97 S.W.3d 722, denial of habeas corpus affirmed 112 S.W.3d 753. Conspiracy 47(3.1) Evidence was legally sufficient to establish that money diverted by coconspirators of defendant from subsidiary of gas company was property of gas company in defendant's trial for conspiracy to misapply fiduciary property; part of the money that subsidiary of gas company would have otherwise received from the gas sales was diverted to co-conspirators and because gas company was the equitable owner of the diverted funds, they constituted fiduciary funds that were misapplied by defendant. Cantrell v. State (App. 6 Dist. 2002) 75 S.W.3d 503, rehearing overruled, petition for discretionary review refused, appeal from denial of habeas corpus 97 S.W.3d 722, denial of habeas corpus affirmed 112 S.W.3d 753. Conspiracy 47(3.1) 30. ---- Existence of conspiracy, generally, sufficiency of evidence Evidence did not show a conspiracy to murder or to commit any crime of which murder might be the reasonable and natural consequence. Blain v. State (App. 1892) 18 S.W. 862. In a prosecution for homicide, evidence was sufficient to justify submission to the jury of the question of a specific conspiracy to take the life of decedent,

though the preponderance of the evidence indicated that he was killed as an incident to a conspiracy to commit another offense. Martinez v. State (Cr.App. 1914) 75 Tex.Crim. 416, 171 S.W. 1153. Homicide 1321 Mere identification of defendant and another as joint participants is sufficient evidence of the conspiracy. Whitehead v. State (Cr.App. 1945) 148 Tex.Crim. 190, 185 S.W.2d 725. Criminal Law 427(5) Statement relating to where defendant kept narcotic paraphernalia and statement that defendant had left to purchase narcotics for himself and speaker who was found in defendant's apartment at time of execution of search warrant were hearsay and insufficient to establish conspiracy. White v. State (Cr.App. 1969) 451 S.W.2d 497. Criminal Law 427(4); Criminal Law 427(5) Defendant's identification by another victim's neighbor as being at scene of crime, description of automobile driven by defendant and another as being similar to type of automobile owned by alleged coconspirator, alleged coconspirator's wife's testimony that her husband returned with bloody clothing, shirt which was same size was one worn by victim and radio she had not seen previously, and fact that defendant sold coin collection previously owned by victim were sufficient to establish existence of conspiracy between defendant and alleged coconspirator. Denney v. State (Cr.App. 1977) 558 S.W.2d 467, certiorari denied 98 S.Ct. 3104, 437 U.S. 911, 57 L.Ed.2d 1142. Criminal Law 427(5) Circumstances surrounding death of victim, including defendant's driving automobile to dance hall so that it would look like victim had been abducted, helping to clean up blood, reporting victim missing to police, and pretending to search for victim, enabled jury to find elements of offense of conspiracy to commit murder beyond a reasonable doubt, including essential element of agreement. Turner v. State (App. 4 Dist. 1986) 720 S.W.2d 161, petition for discretionary review refused. Conspiracy 47(8) Testimony of coconspirators regarding a specific time at which they agreed to participate in conspiracy to kill defendant's ex-wife's husband was not required to convict defendant of conspiracy to commit capital murder; evidence showed that coconspirators agreed to "go ahead and do it," that coconspirators bought gloves and masks to be used in murder, that coconspirators went with defendant to victim's house to survey premises and familiarize themselves with area, and that defendant gave coconspirators weapons to use in murder, stole license plate to put on the truck, and gave one coconspirator an advance payment on the murder. Butler v. State (App. 14 Dist. 1988) 758 S.W.2d 856. Conspiracy 47(8) 31. ---- Confessions, sufficiency of evidence A conspiracy cannot be proven by confessions of one of the co-conspirators, the existence of the conspiracy must be proven by other evidence. Menges v. State (1888) 25 Tex.Crim. 710, 9 S.W. 49; Sessions v. State (1897) 37 Tex.Crim. 62, 38 S.W. 623. A conspiracy is deemed to be shown when there is some evidence of participation or interest in the commission of the crime apart from testimony of alleged conspirators. Whitehead v. State (Cr.App. 1945) 148 Tex.Crim. 190, 185 S.W.2d 725. Criminal Law 427(5) In prosecution for conspiracy to commit capital murder, in absence of any showing at trial beyond confession itself that there had been an agreement to commit the

murder, conspiracy conviction founded on that confession could not stand. Brown v. State (Cr.App. 1978) 576 S.W.2d 36. Criminal Law 535(1) 32. ---- Corroborating evidence, sufficiency of evidence Prosecuting witness' testimony that defendants promised to return to witness original genuine Treasury bills after having made duplicates thereof and to divide duplicates after deducting expense of materials used was insufficient to sustain conviction of conspiracy to commit theft. Chamberlain v. State (Cr.App. 1936) 129 Tex.Crim. 603, 91 S.W.2d 356. Conspiracy 47(11) Evidence of an accomplice was not sufficiently corroborated to sustain a conviction of conspiracy to swindle an insurance company by burning an automobile. McQuinn v. State (Cr.App. 1938) 134 Tex.Crim. 375, 115 S.W.2d 926. Criminal Law 511.1(6.1) The fact that each alleged accomplice of defendant in prosecution for receiving and concealing stolen sheep, knowing it to have been stolen, corroborated the other, was not sufficient corroboration of their testimony to sustain a conviction. Wright v. State (Cr.App. 1940) 140 Tex.Crim. 120, 143 S.W.2d 394. Criminal Law 511.10 Evidence that defendant was involved in automobile collisions and that he was paid claims which he made to insurance companies for injuries allegedly sustained did not corroborate his confession of conspiring to commit crime of theft by getting involved in accidents and then filing claims against insurers. Smith v. State (Cr.App. 1963) 363 S.W.2d 277. Criminal Law 534(1) Alleged accomplice's testimony about conspiracy with defendant to defraud insurance carrier by burning defendant's place of business was sufficiently corroborated by evidence that defendant had taken out loans from two banks, pledging to each as collateral the inventory of business but that defendant had signed a declaration of loss after business was destroyed by fire which acknowledged neither of banks as lien holder and that defendant had, within two weeks before fire, doubled his insurance coverage of furniture and fixtures as his business and added new policy covering business loss of profits in case of fire. Rice v. State (Cr.App. 1980) 605 S.W.2d 895. Criminal Law 511.1(9) Tape recording purporting to be conversation between defendant and accomplice was insufficient corroboration of accomplice's testimony to support defendant's conviction for conspiracy to commit capital murder where, excluding accomplice's testimony, there was no identification of voices on tape recording other than that of accomplice and where there was no indication of any overt acts in furtherance of conspiracy in tape recording. Morrison v. State (App. 2 Dist. 1982) 631 S.W.2d 242, review refused. Criminal Law 511.1(6.1) Evidence supported convictions of pickup truck driver and passenger for conspiracy to manufacture phenylacetone; truck contained glassware, laboratory equipment, and chemicals frequently associated with manufacture of controlled substance; and record contained written and signed confession of one defendant. Pike v. State (App. 10 Dist. 1988) 752 S.W.2d 737, petition for discretionary review refused. Conspiracy 47(12) Conviction for conspiracy to commit capital murder was supported by sufficient evidence, apart from testimony of coconspirator, showing that shotgun belonging to defendant was found in "hit men's" vehicle, that defendant had threatened to kill

his ex-wife and her husband, that defendant had told an acquaintance that he hired someone to kill his ex-wife's new husband, and that, during tape recorded phone calls with coconspirators, defendant had repeatedly stated that he wanted the "job" done before Christmas. Butler v. State (App. 14 Dist. 1988) 758 S.W.2d 856. Conspiracy 47(8) To convict defendant of conspiracy to commit arson, State was not required to offer sufficient evidence independent of accomplice's testimony to connect defendant with offense, where no charge was submitted to jury instructing jurors to apply such evidentiary test, and accomplice testimony was not defined in abstract or included in paragraph applying law to facts. Saunders v. State (App. 4 Dist. 1990) 794 S.W.2d 91, petition for discretionary review granted, affirmed 817 S.W.2d 688, rehearing on petition for discretionary review denied. Criminal Law 511.2 There was sufficient non-accomplice testimony tending to connect defendant to conspiracy to commit burglary to corroborate accomplice testimony relied upon by state to sustain conviction for that offense; testimony placed defendant with accomplices near site of attempted burglary before, during, and after offense in middle of night, with lack of apparent reason for his presence near site. Thomas v. State (App. 11 Dist. 1999) 993 S.W.2d 392. Criminal Law 511.1(9) 33. ---- Intent, sufficiency of evidence Evidence that accused engaged in buying and selling grain, acting with another, placed in hands of truck driver blank checks signed by accused which were represented as being "good", with directions to buy corn, whereas one of such checks which truck driver gave in payment for corn was not good did not sustain conviction of conspiracy to commit felony theft of corn from person from whom purchased. Witt v. State (Cr.App. 1944) 146 Tex.Crim. 627, 177 S.W.2d 781. Conspiracy 47(11) Evidence, in prosecution for conspiring to steal money from officer of a grain company by manipulating scales for certain trucks, was sufficient to prove an agreement to commit theft with intent to appropriate the property. Farrington v. State (Cr.App. 1972) 489 S.W.2d 607. Conspiracy 47(11) To convict two defendants of conspiracy to possess drugs, state was not required to show that defendants intended to possess drugs jointly; rather, state only had to prove that defendants agreed that one of them would purchase drug and, therefore, necessarily possess it, and that one of them made overt act in pursuance of that agreement. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for discretionary review refused. Conspiracy 24.5 34. ---- Agreement, sufficiency of evidence The accused, who was on trial for the murder of his jailer, contended that a conspiracy among several of the prisoners extended no further than the escape, and did not contemplate the killing of the jailer, or the infliction of bodily injury upon him beyond his mere detention, and that the killing was the individual and independent act of C. alone, perpetrated without the accused's complicity, and without ability on his part to prevent it. In view of the nature and object of the conspiracy, and of the preparation and use of a deadly weapon as a means to execute the common design, the homicide was not the independent act of C. alone,

but was the act of each and all the conspirators, because it was directly incident to and grew out of the common design of all. Stevenson v. State (1885) 17 Tex.Crim. 619; Kirby v. State (1887) 23 Tex.Crim. 13, 5 S.W. 165, citing Mercersmith v. State (1880) 8 Tex.Crim. 211. And see Cox v. State (1880) 8 Tex.Crim. 254, 34 Am.Rep. 746; Blain v. State (1892) 30 Tex.Crim. 702, 18 S.W. 862; Renner v. State (1902) 43 Tex.Crim. 347, 65 S.W. 1102. In a prosecution for conspiracy to commit murder, evidence did not show a positive agreement to commit the offense of murder upon the husband of a woman infatuated with defendant. King v. State (Cr.App. 1919) 86 Tex.Crim. 407, 216 S.W. 1091. Conspiracy 47 Under statute relating to conspiracy to bribe witness, positive "agreement" must be shown. Odneal v. State (Cr.App. 1931) 117 Tex.Crim. 97, 34 S.W.2d 595. Conspiracy 47 Proof that defendant and his alleged coconspirators entered into positive agreement to burn house of one of them did not support allegation of indictment for conspiracy that they entered into agreement to burn another's house, destroyed by fire communicated from former house. Wilson v. State (Cr.App. 1934) 127 Tex.Crim. 152, 74 S.W.2d 1020. Conspiracy 43(12) Although there was corroborating evidence that defendants cashed checks which another person had given them, returned proceeds thereof, and then accompanied person to California where they expected to be employed, where no evidence, other than evidence to be corroborated, was adduced to show that defendants knew an offense was to be committed by their action in cashing checks, and where there was no evidence to show that defendants agreed to commission of any offense, defendants were noncoconspirators and their actions did not render them amenable to prosecution and conviction for conspiracy to commit theft. Murdoch v. State (Cr.App. 1970) 460 S.W.2d 423. Conspiracy 47(11) Where circumstances show a positive agreement from overt acts to fraudulently deprive owner of his property with a value over fifty dollars for use or benefit of taker or another, this is enough to support a conviction for conspiracy to commit felony theft. Farrington v. State (Cr.App. 1972) 489 S.W.2d 607. Conspiracy 47(11) There was insufficient evidence of agreement to commit murder to sustain defendant's conviction of conspiracy to commit capital murder; defendant's statement to police, testimony at trial, and admissions to third party did not demonstrate any agreement to commit murder, rather than robbery. Mack v. State (App. 5 Dist. 1989) 772 S.W.2d 162. Conspiracy 47(8) 35. ---- Overt acts, generally, sufficiency of evidence Where, in a prosecution for homicide, the state did not claim a specific conspiracy to kill deceased, but that he was killed as an incident to a conspiracy to organize in Texas an armed force to invade Mexico, the members of the company not immediately concerned in the killing could only be convicted of homicide on proof that the killing was incidental to a conspiracy to do an unlawful act and was within the scope thereof. Martinez v. State (Cr.App. 1914) 75 Tex.Crim. 416, 171 S.W. 1153. Homicide 612 Act of accepting payment to kill an individual and then recruiting killers to help with the "job" was sufficient to meet statutory requirement for conspiracy to

commit murder and it would not be necessary to show overt act of killing deceased by one or more of coconspirators. Brown v. State (Cr.App. 1978) 576 S.W.2d 36. Conspiracy 28(3) Finding that conspiracy defendants agreed to commit offense of drug possession was supported by evidence that defendants met with undercover officer with intent to purchase drugs from him, even though completion of drug transaction depended on officer producing acceptable quality, which condition had not yet been met at time of arrest. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for discretionary review refused. Conspiracy 47(12) Evidence was legally sufficient to support finding that defendant and his accomplices engaged in a conspiracy to rob victim and his friend; defendant and his acquaintances planned to rob victim and his friend, neither defendant nor any of his acquaintances ever objected to the commission of the robbery, and defendant and his acquaintances cooperated with the terms of the plan to commit robbery. Thompson v. State (App. 12 Dist. 2001) 54 S.W.3d 88, habeas corpus granted 2003 WL 22410064, petition for discretionary review refused. Conspiracy 47(11) 36. ---- Involvement in conspiracy, sufficiency of evidence In a prosecution for homicide committed in furtherance of an illegal conspiracy to organize in Texas an armed band to invade Mexico, evidence warranted a finding that defendant was a member of the band and engaged in the furtherance of the conspiracy at the time of the killing. Martinez v. State (Cr.App. 1914) 75 Tex.Crim. 416, 171 S.W. 1153. Homicide 1163 Person who did not intend to commit burglary or aid in commission thereof, and whose participation in alleged conspiracy to commit burglary was simulated, was not "conspirator." Weathered v. State (Cr.App. 1935) 128 Tex.Crim. 263, 81 S.W.2d 91. Conspiracy 24(1) Murder conviction, where both party and conspirator theories of culpability were instructed, was supported by DNA evidence indicating that defendant participated in sexual assault of victim, defendant's admission of participation in burglary, and expert testimony that defendant could not be excluded from possibly having made bloody sock prints on floors of victim's residence. Fuller v. State (Cr.App. 1992) 827 S.W.2d 919, certiorari denied 113 S.Ct. 3035, 509 U.S. 922, 125 L.Ed.2d 722, rehearing denied 114 S.Ct. 13, 509 U.S. 940, 125 L.Ed.2d 765, dismissal of habeas corpus affirmed 158 F.3d 903, certiorari denied 119 S.Ct. 1809, 526 U.S. 1133, 143 L.Ed.2d 1012. Homicide 1184 Evidence was legally and factually sufficient to find defendant guilty of criminal conspiracy to misapply fiduciary property resulting from securing a lower gas price by promising to part of broker's commission to vice president of the gas supply company, effectively lower amount of money the supply company could demand for its gas, while enriching coconspirators in violation of vice president's fiduciary duty to his company; defendant's company's records corroborated testimony of both the broker and the vice president that broker's commission was reduced by exactly one-half of salary of employee of defendant's company who was vice president's son-in-law, and, although the indictment averred that the conspiracy commenced over two years prior to the execution of the supply contract, State produced evidence that defendant had engaged in a similar scheme at that earlier time. Cantrell v. State (App. 6 Dist. 2001) 54 S.W.3d 41, rehearing overruled, petition for discretionary review granted, opinion after remand from court of criminal appeals 75 S.W.3d 503, petition for discretionary review

refused, appeal from denial of habeas corpus 97 S.W.3d 722, denial of habeas corpus affirmed 112 S.W.3d 753. Conspiracy 47(3.1) Evidence was legally and factually sufficient to establish that defendant was guilty as a party to capital murder; defendant engaged in a conspiracy to rob victim and his friend, victim's murder was committed in furtherance of the robbery conspiracy, and defendant should have anticipated victim's murder as a result of the carrying out of the conspiracy to commit robbery. Thompson v. State (App. 12 Dist. 2001) 54 S.W.3d 88, habeas corpus granted 2003 WL 22410064, petition for discretionary review refused. Homicide 1207 Evidence was legally and factually sufficient to support conviction for capital murder under conspiracy theory of law of parties; defendant drove car used during kidnapping of victim's wife, kept watch over victim's wife and her baby when his two coconspirators went to confront victim and murder him, and fled the scene with coconspirators in car after fatal shooting. Cienfuegos v. State (App. 1 Dist. 2003) 113 S.W.3d 481, rehearing overruled, petition stricken, petition for discretionary review refused. Homicide 614 Evidence was sufficient to establish that defendant, either as principal or as party, was guilty of shooting police officer in course of committing theft of money used by officer in undercover drug transaction, thus supporting defendant's conviction for aggravated robbery; evidence showed that defendant and individual with whom officer had earlier negotiated drug transaction burst through door of officer's hotel room with guns demanding officer's money, which, following police backup response to scene, resulted in officer suffering gunshot wound to head. Medrano v. State (App. 1 Dist. 2003) 2003 WL 1891650, Unreported, petition for discretionary review refused. Robbery 24.15(2); Robbery 24.20 37. ---- Circumstantial evidence, sufficiency of evidence Agreement of parties to act together in an unlawful act or design may be established by circumstantial evidence. Price v. State (Cr.App.1967) 410 S.W.2d 778; Machado v. State (Cr.App.1973) 494 S.W.2d 859. Conspiracy to commit crime may be established by circumstantial evidence. Rice v. State (Cr.App. 1932) 121 Tex.Crim. 68, 51 S.W.2d 364. Conspiracy 47 Generally, conspiracy cannot be shown by one witness or a circumstance, but may be shown by evidence and chain of circumstances which together show conspiracy. Grant v. State (Cr.App. 1940) 140 Tex.Crim. 46, 143 S.W.2d 383. Conspiracy 47(2) A conspiracy can be shown by circumstances, and when circumstances are relied upon, they must exclude every other reasonable hypothesis than that of defendant's guilt. Feldman v. State (Cr.App. 1941) 141 Tex.Crim. 306, 147 S.W.2d 773, rehearing denied 141 Tex.Crim. 306, 148 S.W.2d 835. Conspiracy 47(2); Criminal Law 552(3) Circumstantial evidence as to acts and conduct of defendant and another was sufficient to sustain a finding that they were engaged in effecting object of burglarizing pharmacy building and sustained conviction for conspiracy to commit burglary with intent to steal. Roberts v. State (Cr.App. 1964) 375 S.W.2d 303. Conspiracy 47(11) Circumstantial evidence did not exclude reasonable hypothesis that payments by owner of building purchased for school district offices to president of school

district's board of trustees were simply contributions for election campaign by county commissioner, that president was merely conduit, and that payments had no connections to purchase of building by board, and thus, circumstantial evidence was insufficient to support convictions of owner, president, and county commissioner on charges of conspiracy to commit bribery; although county commissioner failed to report payments as contributions, implication of statements by grand jury was that grand jury would indict commissioner for conspiracy if he reported payments as campaign contributions. Ramirez v. State (App. 4 Dist. 1990) 801 S.W.2d 110, petition for discretionary review refused, vacated, petition for discretionary review granted, petition for discretionary review dismissed with per curiam opinion 836 S.W.2d 635. Conspiracy 47(13) Essential element of conspiracy is agreement to commit crime, and such agreement may be shown by circumstantial evidence; commission of underlying substantive offense is not essential element of conspiracy. Walker v. State (App. 5 Dist. 1992) 828 S.W.2d 485, petition for discretionary review refused. Conspiracy 24(1); Conspiracy 28(2); Conspiracy 47(2) 38. Argument of counsel In prosecution for conspiracy to commit a felony, where defendant did not take the stand on his behalf, argument of prosecutor could not be considered to contain a direct or indirect reference to defendant's failure to testify. Nisbet v. State (Cr.App. 1959) 170 Tex.Crim. 1, 336 S.W.2d 142, certiorari denied 80 S.Ct. 1601, 363 U.S. 829, 4 L.Ed.2d 1524. Criminal Law 721(1) 39. Questions of law It is the province of the court to determine, in a case involving that question, whether or not a prima facie case of conspiracy has been established; and if, in the opinion of the court, such issue arises from the evidence permitted to be introduced, then it is further the duty of the court to submit the issue of conspiracy or not, to be determined by the jury, as any other issue in the case. Luttrell v. State (Cr.App. 1893) 31 Tex.Crim. 493, 21 S.W. 248. 40. Instructions--In general The jury should be instructed that the conspiracy could not be established by the acts or declarations of a co-conspirator, made after the consummation of the offense, and in the absence of defendant. Crook v. State (App. 1889) 11 S.W. 444. Criminal Law 673(4) Where defendant was convicted of murder upon evidence which established a conspiracy between him and his co-defendant to kill the deceased, and the fact that he was present at the homicide, it was not error for the court to refuse to instruct that, if prior to the killing defendants abandoned their design, and deceased was subsequently killed by the co-defendant, and that defendant at the time did not act aiding, encouraging, or abetting the offense, he would not be liable except as accomplice. Slade v. State (App. 1891) 16 S.W. 253. Criminal Law 792(1) There need be no charge on conspiracy, where the facts tend to show this, if the

charge on principals is sufficiently comprehensive. Augustine v. State (Cr.App. 1899) 41 Tex.Crim. 59, 52 S.W. 77, 96 Am.St.Rep. 765. Evidence in prosecution for murder of deputy sheriff, engaged in arrest of occupants of car, justified court in submitting issue of conspiracy of occupants to commit felony of transporting intoxicating liquors, and to resist arrest by force if necessary. Hanks v. State (Cr.App. 1925) 99 Tex.Crim. 218, 269 S.W. 106. Homicide 1321 In prosecution for murder of defendant who, knowing that expedition leader was a dangerous man, aided a burglary in course of which leader killed policeman, a charge that co-conspirators would not be guilty of homicide committed by another, not in connection with the burglary but as an independent act on an independent impulse without consent of the others, was proper. Garcia v. State (Cr.App. 1948) 151 Tex.Crim. 593, 210 S.W.2d 574. Homicide 1466 It was proper for trial court in prosecution for criminal conspiracy to plead indictment in the conjunctive and submit charge in disjunctive where instructions unequivocally restricted jury's consideration to only those allegations in indictment. Carrion v. State (App. 3 Dist. 1990) 802 S.W.2d 83. Criminal Law 814(1); Indictment And Information 125(20) 41. ---- Existence of conspiracy, generally, instructions Where all the testimony showed a conspiracy between defendant and third persons committing a murder, and that the murder was committed in pursuance of the common design, the court could refuse to define a "conspiracy"; but where the testimony did not show conclusively a conspiracy, the court must instruct on the subject, and clearly state what facts must be found to justify a conviction. Vasquez v. State (Cr.App. 1914) 74 Tex.Crim. 491, 171 S.W. 1160. In conspiracy prosecution, following statutory language in indictment and charge in stating that parties entered into agreement, without explaining that agreement must be between defendants themselves, was sufficient, absent statement of facts showing agreement was not between parties. Garza v. State (Cr.App. 1932) 122 Tex.Crim. 413, 55 S.W.2d 1042. Criminal Law 1097(1) In prosecution for conspiracy to commit theft, failure to give charge predicating acquittal on reasonable doubt as to whether prosecuting witness initiated and brought about conspiracy was error, in view of evidence that prosecuting witness initiated transaction resulting in conspiracy solely for purpose of entrapping accused. Nami v. State (Cr.App. 1934) 127 Tex.Crim. 403, 77 S.W.2d 528. Conspiracy 48 42. ---- Overt acts, instructions When the time that the conspiracy was entered into is a disputed fact, the trial court should submit that fact to the jury and instruct them not to consider any act or declaration which did not occur during the existence of the conspiracy. Harris v. State (Cr.App. 1892) 31 Tex.Crim. 411, 20 S.W. 916. An instruction, in addition, that if a conspiracy was not established the jury were not to consider these acts and declarations as evidence against defendant was proper. Luttrell v. State (Cr.App. 1893) 31 Tex.Crim. 493, 21 S.W. 248.

On a murder trial, where a conspiracy to kill deceased was sought to be shown, it was proper to charge that, if the jury believed that defendant had entered into a conspiracy to kill the deceased, they could consider as evidence against defendant any acts or declarations of his co-conspirators, or either of them, done or made to carry out their common purpose during the pendency of such conspiracy, but should disregard such acts and declarations if there was no conspiracy, or if they were not done or made during the pendency thereof to carry out the design. Luttrell v. State (Cr.App. 1893) 31 Tex.Crim. 493, 21 S.W. 248. Criminal Law 779 43. ---- Acquittal or innocence of coconspirators, instructions Where several were jointly indicted for conspiracy, and one had severed and been tried and acquitted, it was error to charge on the trial of another of the defendants, with reference to a supposed conspiracy between him and the defendant who had been acquitted. The charge should have confined the jury to a conspiracy between the defendant on trial and the defendants not yet tried. Paul v. State (1882) 12 Tex.Crim. 346. Where the indictment charged the defendants, one H. and one W., with a conspiracy to commit burglary, and the evidence completely exonerated the defendant W., it was not error for the court to instruct the jury, that if the evidence showed a conspiracy between the defendant and H., the offense would be complete, and that the state was not required to prove W. was also a party to the conspiracy. The allegations as to W. were held to be surplusage and not essential to be proved. Woodworth v. State (1886) 20 Tex.Crim. 375. 44. ---- Evidence warranting instructions On a trial for theft of a cow, there was evidence that defendant and others conspired to prove a purchase of the cow after defendant took possession of it, and the court charged that, "when two or more persons conspire together to commit an offense, and each carries out the part agreed to be done by him, and such offense is actually committed, then all parties to such an agreement are equally guilty of such offense; and if * * * defendant fraudulently took the property, * * * and others agreed or conspired, before or after such taking, to prove a purchase or pretended purchase, * * * either before or after such taking, this would be no defense to such fraudulent taking." Such instruction was authorized by the evidence, and was correct. Kegans v. State (App. 1889) 11 S.W. 644. Larceny 73 Under the evidence in a murder case the giving of an instruction relative to conspiracy was not error. Childs v. State (Cr.App. 1896) 35 Tex.Crim. 573, 34 S.W. 939. 45. Convictions of co-conspirators Where two persons are charged with conspiracy and there has been an acquittal as to one, or the evidence fails to show guilt as to one, conviction as to the other cannot stand, because there must be at least two persons acting together before any conspiracy could exist. Hustead v. State (Cr.App. 1922) 95 Tex.Crim. 49, 251 S.W. 1074. Conspiracy 23

In prosecution against accused and two others for conspiracy to commit burglary, evidence that one of parties was not a conspirator would not relieve accused from conviction of offense provided testimony showed that accused and another had entered into conspiracy to commit burglary. Weathered v. State (Cr.App. 1935) 128 Tex.Crim. 263, 81 S.W.2d 91. Conspiracy 24(4.1) Coconspirator's being convicted of voluntary manslaughter, rather than murder, was not defense to defendant's charge of conspiracy to commit murder. Turner v. State (App. 4 Dist. 1986) 720 S.W.2d 161, petition for discretionary review refused. Conspiracy 28(3) V. T. C. A., Penal Code � 15.02, TX PENAL � 15.02 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, or 21.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; (3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code, or Section 51.02(13) or (14), Family Code, or an employee of that person: (A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or (B) in retaliation for or on account of the person's or employee's performance of a service within the scope of the contract; or (4) a person the actor knows is a security officer while the officer is performing a duty as a security officer. (c) An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that the offense is: (1) a Class A misdemeanor if the offense is committed under Subsection (a)(3) against an elderly individual or disabled individual, as those terms are defined by Section 22.04; or

(2) a Class B misdemeanor if the offense is committed by a person who is not a sports participant against a person the actor knows is a sports participant either: (A) while the participant is performing duties or responsibilities in the participant's capacity as a sports participant; or (B) in retaliation for or on account of the participant's performance of a duty or responsibility within the participant's capacity as a sports participant. (d) For purposes of Subsection (b), the actor is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant or status as a security officer. (e) In this section: (1), (2) Repealed by Acts 2005, 79th Leg., ch. 788, � 6. (3) "Security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code. (4) "Sports participant" means a person who participates in any official capacity with respect to an interscholastic, intercollegiate, or other organized amateur or professional athletic competition and includes an athlete, referee, umpire, linesman, coach, instructor, administrator, or staff member. (f) For the purposes of Subsection (b)(2): (1) a defendant has been previously convicted of an offense listed in Subsection (b)(2) committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision; and (2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in Subsection (b)(2) is a conviction of an offense listed in Subsection (b)(2). CREDIT(S) Acts 1973, 63rd Leg., p. 883, ch. 399, � 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, �� 12, 13, eff. July 22, 1977; Acts 1979, 66th Leg., p. 260, ch. 135, �� 1, 2, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 367, ch. 164, � 2, eff. Sept. 1, 1979; Acts 1983, 68th Leg., p. 5311, ch. 977, � 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 1052, � 2.08, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 739, �� 1 to 3, eff. Sept. 1, 1989; Acts 1991, 72nd

Leg., ch. 14, � 284(23) to (26), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 334, � 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 366, � 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, � 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, � 27.01, eff. Sept. 1, 1997; Acts 1995, 74th Leg., ch. 318, � 5, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 659, � 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, �� 27.01, 31.01(68), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, � 15.02(a), eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1158, � 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 294, � 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1019, �� 1, 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1028, � 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, �� 16.001, 16.002, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 788, �� 1, 2, 6, eff. Sept. 1, 2005. HISTORICAL AND STATUTORY NOTES 2006 Electronic Pocket Part Update 2003 Legislation Acts 2003, 78th Leg., ch. 294 added subd. (b)(3) and made other nonsubstantive changes. Section 2 of Acts 2003, 78th Leg., ch. 294 provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Acts 2003, 78th Leg., ch. 1019 added subsec. (b)(3); in subsec. (d), inserted the references to a security officer; and added subsec. (e)(3). Section 4 of Acts 2003, 78th Leg., ch. 1019 provides: "This Act takes effect September 1, 2003, and applies only to an offense committed on or after that date. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date." Acts 2003, 78th Leg., ch. 1028, rewrote subsec. (c); and added subsec. (e)(3). Prior to amendment, subsec. (c) provided: "An offense under Subsection (a)(2) or (3) is a Class C misdemeanor, except that an offense under Subsection (a)(3) is a Class A misdemeanor if the offense was committed against an elderly individual or disabled individual, as those terms are defined by Section 22.04." Section 2 of Acts 2003, 78th Leg., ch. 1028 provides: "The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this

section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date." 2005 Legislation Acts 2005, 79th Leg., ch. 728 redesignated subsec. (b)(3), as added by Acts 2003, 78th Leg., ch. 1019, as subsec. (b)(4), redesignated subsec. (e)(3), as added by Acts 2003, 78th Leg., ch. 1028, as subsec. (e)(4), and made nonsubstantive changes. Acts 2005, 79th Leg., ch. 788, reenacted and amended subsec. (b); repealed subsec. (e)(1) and (2); and rewrote subsec. (f). Prior thereto subsecs. (b), (e)(1) and (2) and (f) read: "(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: "(1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; "(2) a member of the defendant's family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant's family or household under this section; or "(3) a person who contracts with government to perform a service in a facility as defined by Section 1.07(a)(14), Penal Code; Section 51.02(13), Family Code; or Section 51.02(14), Family Code, or an employee of that person: "(A) while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or "(B) in retaliation for or on account of the person's or employee's performance of a service within the scope of the contract; or. "(3) a person the actor knows is a security officer while the officer is performing a duty as a security officer." "(e)(1) 'Family' has the meaning assigned by Section 71.003, Family Code." "(2) 'Household' has the meaning assigned by Section 71. 005, Family Code." "(f) For the purposes of this section, a defendant has been previously convicted of an offense against a member of the defendant's family or a member of the defendant's household under this section if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision." Section 7 of Acts 2005, 79th Leg., ch. 788 provides: "The change in law made by this Act applies only to an offense committed on or after September 1, 2005. An offense committed before September 1, 2005, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this section, an offense was committed before September 1, 2005, if any element of the offense occurred

before that date." 2003 Main Volume Acts 1977, 65th Leg., 1st C.S., p. 55, ch. 2, �� 12, 13 rewrote subsec. (b) and added subsecs. (c) and (d). Prior to amendment, subsec. (b) read: "An offense under this section is a Class A misdemeanor unless the offense is committed under Subsection (a)(2) or (a)(3) of this section, in which event it is a Class C misdemeanor." Acts 1979, 66th Leg., ch. 135, in subsec. (c) designated the former provisions as subd. (1) and added subd. 2; and in subsec. (d) added "unless the offense . . . Class B misdemeanor". Acts 1979, 66th Leg., ch. 164 inserted "including his spouse" in subds. (a)(1) and (2). Acts 1983, 68th Leg., p. 5311, ch. 977, � 1, in subsec. (a), in the introductory language and in subd. (3) substituted "the person" for "he", in subds. (1) and (2) substituted "the person's" for "his". Section 13 of the 1983 amendatory act provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1983] of this Act. "(b) An offense committed before the effective date of this Act is covered by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date." Acts 1987, 70th Leg., ch. 1052, � 2.08, in subsec. (b), designated subd. (1) and added subd. (2); in subsec. (c), inserted subd. (2); and redesignated former subd. (2) as subd. (3). Acts 1989, 71st Leg., ch. 739, �� 1 to 3 inserted subds. (c)(4) and (d)(2) and added subsec. (e). Section 34 of the 1989 amendatory act provides: "(a) The change in the prosecution of 1989] of this Act. the effective date effective date. law made by Sections 1 through 7 of this Act applies only to an offense committed on or after the effective date [Sept. 1, For purposes of this section, an offense is committed before of this Act if any element of the offense occurs before the

"(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and that law is continued in effect for this purpose." Acts 1991, 72nd Leg., ch. 14, � 284, in subsec. (b), in subd. (1), substituted "Section 242.002(6), Health and Safety Code, or a person providing medical or psychiatric treatment at an institution described in that section, and the offense is committed by causing bodily injury to a patient or resident of an institution described in that section" for "Subsection (a), Section 2, Chapter 413, Acts of the 53rd Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's

Texas Civil Statutes), or a person providing medical or psychiatric treatment at an institution described in that subsection, and the offense is committed by causing bodily injury to a patient or resident of an institution described in that subsection", in subd. (2), substituted "Section 242.003(a)(6), Health and Safety Code, or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section, and the offense is committed by causing bodily injury to a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section" for "Subsection (a)(6), Section 2, Chapter 413, Acts of the 53rd Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's Texas Civil Statutes), or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that subsection, and the offense is committed by causing bodily injury to a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that subsection"; and in subsec. (c), in subd. (1), substituted "Section 242.002(6), Health and Safety Code, or a person providing medical or psychiatric treatment at an institution described in that section, and the offense is committed by threatening a patient or resident of an institution described in that section" for "Subsection (a), Section 2, Chapter 413, Acts of the 53rd Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's Texas Civil Statutes), or a person providing medical or psychiatric treatment at an institution described in that subsection, and the offense is committed by threatening a patient or resident of an institution described in that subsection" and in subd. (2), substituted "Section 242.003(a)(6), Health and Safety Code, or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section, and the offense is committed by threatening a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section" for "Subsection (a)(6), Section 2, Chapter 413, Acts of the 53rd Legislature, Regular Session, 1953, as amended (Article 4442c, Vernon's Texas Civil Statutes), or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that subsection, and the offense is committed by threatening a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that subsection." Section 1 of Acts 1991, 72nd Leg., ch. 14, provides, in part, that the Act is a revision of statutes, without substantive change. Acts 1991, 72nd Leg., ch. 334, � 1, in subsec. (c), throughout the subsection substituted references to the institutional division of the Texas Department of Criminal Justice for references to the Texas Department of Corrections, and corrected statutory references; and, in subd. (3), inserted "other than the Windham Schools". Acts 1991, 72nd Leg., ch. 366, � 1, in subsec. (b), added subd. (3). Section 4 of Acts 1991, 72nd Leg., ch. 334, and � 5 of Acts 1991, 72nd Leg., ch. 366, each provide: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1991] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

"(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose." Acts 1993, 73rd leg., ch. 900, � 1.01 rewrote subsecs. (b) and (c), and deleted subsecs. (d) and (e); prior to amendment, subsecs. (b) through (e) read: "(b) An offense under Subsection (a)(1) of this section is a Class A misdemeanor unless: "(1) the offense is committed by the owner or an employee of an institution described in Section 242.002(6), Health and Safety Code, or a person providing medical or psychiatric treatment at an institution described in that section, and the offense is committed by causing bodily injury to a patient or resident of an institution described in that section, in which event the offense is a felony of the third degree; "(2) the offense is committed by the owner or employee of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in Section 242.003(a)(6), Health and Safety Code, or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section, and the offense is committed by causing bodily injury to a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section, in which event the offense is a felony of the third degree; or "(3) the offense is committed against a family member and the actor has been previously convicted under this section for an offense against a family member two or more times, in which event the offense is a felony of the third degree. "(c) An offense under Subsection (a)(2) of this section is a Class C misdemeanor unless: "(1) the offense is committed by the owner or an employee of an institution described in Section 242.002(6), Health and Safety Code, or a person providing medical or psychiatric treatment at an institution described in that section, and the offense is committed by threatening a patient or resident of an institution described in that section with bodily injury, in which event the offense is a Class B misdemeanor;

<"Text of subd. (2) as amended by Acts 1991, 72nd Leg., ch. 14, � 284(26)>

"(2) the offense is committed by the owner or an employee of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in Section 242.003(a)(6), Health and Safety Code, or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section, and the offense is committed by threatening a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the Texas Department of Corrections, described in that section with

bodily injury, in which event the offense is a Class B misdemeanor; or

<"Text of subd. (2) as amended by Acts 1991, 72nd Leg., ch. 334, � 1>

"(2) the offense is committed by the owner or an employee of a facility, except a facility operated by the Texas Youth Commission or the institutional division of the Texas Department of Criminal Justice, described in Section 242.002, Health and Safety Code, or a person providing medical or psychiatric treatment at a facility, except a facility operated by the Texas Youth Commission or the institutional division, described in that section, and the offense is committed by threatening a patient or resident of a facility, except a facility operated by the Texas Youth Commission or the institutional division, described in that section with bodily injury, in which event the offense is a Class B misdemeanor; "(3) the offense is committed against a classroom teacher, counselor, principal, or other similar instructional or administrative employee of a primary or secondary school accredited by the Texas Education Agency, other than the Windham Schools, while engaged in performing his educational duties, in which event the offense is a Class B misdemeanor; or "(4) the offense is committed against a family member and the actor has been previously convicted under this section for an offense against a family member: "(A) one time, in which event the offense is a Class B misdemeanor; "(B) two times, in which event the offense is a Class A misdemeanor; or "(C) more than two times, in which event the offense is a felony of the third degree. "(d) An offense under Subsection (a)(3) of this section is a Class C misdemeanor unless: "(1) the offense is committed against a classroom teacher, counselor, principal, or other similar instructional or administrative employee of a primary or secondary school accredited by the Texas Education Agency while engaged in performing his educational duties, in which event the offense is a Class B misdemeanor; or "(2) the offense is committed against a family member and the actor has been previously convicted under this section for an offense against a family member: "(A) one time, in which event the offense is a Class B misdemeanor; "(B) two times, in which event the offense is a Class A misdemeanor; or "(C) more than two times, in which event the offense is a felony of the third degree. "(e) In this section, "family" has the meaning assigned by Section 71.01, Family Code."

Acts 1995, 74th Leg., ch. 318, in subsec. (b), added ", except that the offense is a felony of the third degree if the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant"; in subsec. (c), added ", except that an offense under Subsection (a)(3) is a Class A misdemeanor if the offense was committed against an elderly individual or disabled individual, as those terms are defined by Section 22.04"; and added subsec. (d). Acts 1995, 74th Leg., ch. 659, in subsec. (b), added provisions aggravating the offense to state jail felony level for multiple offenses against family members; and added subsec. (d). Section 2 of Acts 1995, 74th Leg., ch. 659 provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1995] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date. "(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Acts 1997, 75th Leg., ch. 165, in subsec. (b), inserted subdivision designations, and, therein, in subd. (1), added "; or", and in subd. (2), substituted "a state jail felony if" for "unless", and at the end, deleted ", in which event the offense is a state jail felony"; and redesignated subsec. (d), as added by Acts 1995, 74th Leg., ch. 659, as subsec. (e). Acts 1999, 76th Leg., ch. 62, in subsec. (e), corrected a reference. Acts 1999, 76th Leg., ch. 1158, rewrote subsec. (b); in subsec. (e), inserted a subd. (1) designation, substituted "71.003" for "71.01" and added subd. (2); and added subsec. (f). Prior to the amendment, subsec. (b) read: "An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is: "(1) a felony of the third degree if the offense is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; or "(2) a state jail felony if it is shown on the trial of the offense that the offense was committed against a family member and that the defendant has been previously convicted of an offense against a family member under this section two or more times." Section 2 of Acts 1999, 76th Leg., ch. 1158 provides: "(a) The change in law made by this Act applies only to an offense committed on or after the effective date [Sept. 1, 1999] of this Act. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

"(b) An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Prior Laws: Rev.P.C.1879, arts. 484-489, 493, 495, 499, 510, 511, 610, 611. Rev.P.C.1895, arts. 587-592, 596, 598, 600, 604, 614, 615, 715, 716, 793. Rev.P.C.1911, arts. 1008-1013, 1017, 1019, 1021, 1025, 1035, 1036, 1145, 1146, 1239. Acts 1931, 42nd Leg., p. 95, ch. 61. Acts 1949, 51st Leg., p. 821, ch. 441. Acts 1949, 51st Leg., p. 1131, ch. 582. Acts 1961, 57th Leg., p. 706, ch. 331, � 1. Vernon's Ann.P.C. (1925) arts. 1138 to 1141, 1144 to 1146a, 1159, 1160, 1167, 1259 to 1260a, 1339. CROSS REFERENCES "Another" defined, see V.T.C.A., Penal Code � 1.07. "Bodily injury" defined, see V.T.C.A., Penal Code � 1.07. Consent as defense, see V.T.C.A., Penal Code � 22.06. "Intentionally" defined, see V.T.C.A., Penal Code � 6.03. Justification for use of force, see V.T.C.A., Penal Code � 9.01 et seq. "Knowingly" defined, see V.T.C.A., Penal Code � 6.03. "Person" defined, see V.T.C.A., Penal Code � 1.07. Punishment, Class A misdemeanor, see V.T.C.A., Penal Code � 12.21. Class C misdemeanor, see V.T.C.A., Penal Code � 12.23. State jail felony, see V.T.C.A., Penal Code � 12.35. Third degree felony, see V.T.C.A., Penal Code � 12.34. "Reasonable belief" defined, see V.T.C.A., Penal Code � 1.07. "Recklessly" defined, see V.T.C.A., Penal Code � 6.03. Resisting arrest, search or transportation as offense, see V.T.C.A., Penal Code �

38.03. Self defense, see V.T.C.A., Penal Code � 9.31. Students, expulsion for assault, see V.T.C.A., Education Code � 37.007. LAW REVIEW COMMENTARIES Annual survey of Texas law: Assault offenses. Shirley W. Butts, 35 Sw.L.J. 511 (1981). Deadly blood: Litigation of transfusion-associated AIDS cases in Texas. Gregory N. Woods and Ann V. Thorton, 21 Tex.Tech L.Rev. 667 (1990). Family violence: What lawyers and judges can do. Judge Steve Russell, 49 Tex.B.J. 965 (1986). Futility of eloquence: Selected Texas family violence legislation 1979- 1991. Steve Russell, 33 S.Tex.L.Rev. 353 (1992). Legal remedial alternatives for spouse abuse in Texas. Gerald S. Reamey, 20 Hous.L.Rev. 1279 (1983). Obtaining the intended protection for victims of domestic violence under section 22.01 of the Texas Penal Code. Reynaldo Anaya Valencia, 12 Tex. J. Women & L. 97 (2002). Presumptions in criminal cases. Luther Hugh Solues III, 20 Baylor L.Rev. 277 (1968). New Penal Code for Texas. Page Keeton and Seth S. Searcy III, 33 Tex.B.J. 980 (1970). Presumptions in criminal cases. Luther Hugh Solues III, 20 Baylor L.Rev. 277 (1968). Texas charging instrument law: Recent developments and continuing need for reform. George E. Dix, 35 Baylor L.Rev. 689 (1983). Texas Equal Rights Amendment in courts--1972-1977: A review and proposed principles of interpretation. Rodric B. Schoen, 15 Hous.L.Rev. 537 (1978). Wife abuse legislation. 7 T.Marshall L.Rev. 282 (1982). LIBRARY REFERENCES 2003 Main Volume Assault and Battery 47, 100. Extortion and Threats 25, 33. Westlaw Topic Nos. 37, 165. C.J.S. Assault and Battery �� 62, 130.

C.J.S. Threats and Unlawful Communications �� 2 to 20, 26 to 28. RESEARCH REFERENCES 2006 Electronic Pocket Part Update ALR Library 2002 ALR, Federal 9, Construction and Effect of United States Sentencing Guideline � 2K2.1 (U.S.S.G. � 2K2.1, 18 U.S.C.A.) Pertaining to Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition and to Prohibited... 36 ALR 5th 541, Products Liability: Cigarettes and Other Tobacco Products. 5 ALR 5th 243, Sufficiency of Bodily Injury to Support Charge of Aggravated Assault. 50 ALR 4th 1081, Lesser-Related State Offense Instructions: Modern Status. 39 ALR 4th 983, Sufficiency of Prior Conviction to Support Prosecution Under State Statute Prohibiting Persons Under Indictment For, or Convicted Of, Crime from Acquiring, Having, Carrying, or Using Firearms or Weapons. 31 ALR 4th 504, Power or Duty of State Court, Which Has Accepted Guilty Plea, to Set Aside Such Plea on Its Own Initiative Prior to Sentencing or Entry of Judgment. 58 ALR 3rd 662, Consent as Defense to Charge of Criminal Assault and Battery. 31 ALR 3rd 565, What Constitutes "Custodial Interrogation" Within Rule of Miranda v Arizona Requiring that Suspect be Informed of His Federal Constitutional Rights Before Custodial Interrogation. 33 ALR 3rd 335, Comment Note.--Length of Sentence as Violation of Constitutional Provisions Prohibiting Cruel and Unusual Punishment. 9 ALR 3rd 203, Modern Status of Doctrine of Res Judicata in Criminal Cases. 89 ALR 2nd 540, Plea of Nolo Contendere or Non Vult Contendere. 52 ALR 2nd 1314, What is an Infamous Crime or One Involving Moral Turpitude Constituting Disqualification to Hold Public Office. 169 ALR 315, Comment Note.--Duty in Instructing Jury in Criminal Prosecution to Explain and Define Offense Charged. 125 ALR 605, Necessity of Charging Matter of Aggravation in Indictment or Information, to Justify Imposition of Higher Punishment Under a Statute Which Varies Punishment According to Enormity of Offense. 112 ALR 1303, Right of Owner of Easement of Way to Make Improvements or Repairs Thereon. 102 ALR 1019, Absence of Evidence Supporting Charge of Lesser Degree of Homicide as Affecting Duty of Court to Instruct as To, or Right of Jury to Convict Of, Lesser Degree.

103 ALR 1041, Defendant's Right to Elect as to Punishment Where Statutory Provision as to Punishment is Changed After Commission of Offense, But Before Conviction. 48 ALR 746, What Constitutes Offense of Obstructing or Resisting Officer. Encyclopedias TX Jur. 3d Assault & Battery � 2, Elements. TX Jur. 3d Assault & Battery � 3, Intent. TX Jur. 3d Assault & Battery � 28, Sufficiency. TX Jur. 3d Assault & Battery � 33, Self-Defense. TX Jur. 3d Automobiles � 452, Driver's Duty to Render Aid. TX Jur. 3d Criminal Law � 188, Lesser Included Offenses. TX Jur. 3d Criminal Law � 191, Felony Murder. TX Jur. 3d Criminal Law � 337, Persons on Whom Offenses May be Committed. TX Jur. 3d Criminal Law � 406, Lesser Included Offenses. TX Jur. 3d Criminal Law � 408, Lesser Included Offenses. TX Jur. 3d Criminal Law � 409, Definitions. TX Jur. 3d Criminal Law � 412, Assault by Threats. TX Jur. 3d Criminal Law � 413, Assault by Threats -- Imminent Bodily Injury. TX Jur. 3d Criminal Law � 414, Assault by Threats -- Requirement Differentiated from that Contained Under Robbery. TX Jur. 3d Criminal Law � 415, Assault by Threats -- Use of Weapon in Threatening Manner. TX Jur. 3d Criminal Law � 416, Offensive or Provocative Contact. TX Jur. 3d Criminal Law � 417, Intent, Knowledge, and Recklessness. TX Jur. 3d Criminal Law � 418, Injury to Person Other Than One Accused Intended to Injure; Transferred Intent. TX Jur. 3d Criminal Law � 420, Serious Bodily Injury. TX Jur. 3d Criminal Law � 422, Public Servant's Lawful Discharge of Official Duty. TX Jur. 3d Criminal Law � 429, What Constitutes a Deadly Weapon -- Motor Vehicles. TX Jur. 3d Criminal Law � 430, What Constitutes a Deadly Weapon -- Other Instruments; Parts of Accused's Body. TX Jur. 3d Criminal Law � 431, in General; Assault.

TX Jur. 3d Criminal Law � 456, in General; Accused's Intent. TX Jur. 3d Criminal Law � 457, Means of Assault. TX Jur. 3d Criminal Law � 458, Aggravating Circumstances -- Causing Serious Bodily Injury. TX Jur. 3d Criminal Law � 459, Aggravating Circumstances -- Using Deadly Weapon. TX Jur. 3d Criminal Law � 460, in General; Culpable Mental State. TX Jur. 3d Criminal Law � 461, Lesser Included Offenses. TX Jur. 3d Criminal Law � 464, Defenses. TX Jur. 3d Criminal Law � 465, in General; Degree of Offense. TX Jur. 3d Criminal Law � 466, in General; Degree of Offense -- Evidence. TX Jur. 3d Criminal Law � 477, in General; Degree of Offense. TX Jur. 3d Criminal Law � 775, Lesser Included Offenses. TX Jur. 3d Criminal Law � 1219, Generally; Intent and Knowledge. TX Jur. 3d Criminal Law � 1225, Lesser Included Offenses. TX Jur. 3d Criminal Law � 1227, Sufficiency. TX Jur. 3d Criminal Law � 1574, Consent to Test. TX Jur. 3d Criminal Law � 1628, What Constitutes Custodial Interrogation. TX Jur. 3d Criminal Law � 1838, Same Act or Transaction. TX Jur. 3d Criminal Law � 1842, Greater and Lesser Included Offenses. TX Jur. 3d Criminal Law � 1863, Verdict. TX Jur. 3d Criminal Law � 2267, Entry Into Residence. TX Jur. 3d Criminal Law � 2484, Conditions Related to Victim or Community Safety. TX Jur. 3d Criminal Law � 3058, Disclosure of Jurors' Personal Information. TX Jur. 3d Criminal Law � 3183, Definitions. TX Jur. 3d Criminal Law � 3242, When Charge is Not Required. TX Jur. 3d Criminal Law � 3243, Sufficiency of Evidence. TX Jur. 3d Criminal Law � 3324, Generally; Necessity Of, and Time for Making, Objection. TX Jur. 3d Criminal Law � 4011, Identity of Accused or Victim. TX Jur. 3d Criminal Law � 4155, Verdict or Findings; Affirmative Finding of Use of

Deadly Weapon -- Other Affirmative Findings. TX Jur. 3d Criminal Law � 4201, Excessive Fines and Cruel or Unusual Punishment -Application to Particular Punishments. TX Jur. 3d Criminal Law � 4266, Generally; What Constitutes Prior Conviction. TX Jur. 3d Criminal Law � 4283, Burden of Proof. TX Jur. 3d Criminal Law � 4284, Evidence of Identity of Offender. TX Jur. 3d Criminal Law � 4722, Where Questions Involved Have Become Moot. TX Jur. 3d Criminal Law � 4797, Suppression of Evidence. TX Jur. 3d Family Law � 1756, Criminal Responsibility of Parent for Death or Serious Injury of a Child. TX Jur. 3d Public Aid & Welfare � 46, Definitions. TX Jur. 3d Schools � 328, Expulsion. Forms Texas Jurisprudence Pleading & Practice Forms 2d Ed � 32:1, Introductory Comments. 10 West's Texas Forms � 23.62, Battery Question and Instruction on Privilege of Discipline. 18 West's Texas Forms � 9.20, Statement of Evidence -- Publication. 18A West's Texas Forms � 19.2, Texas Parental Notification Rules and Forms. Treatises and Practice Aids Charlton, 6 Tex. Prac. Series � 1.6, Definitions. Charlton, 6 Tex. Prac. Series � 13.2, Assault and Aggravated Assault. Charlton, 6 Tex. Prac. Series App. A, Appendix A. Penal Code. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.1, Assault -- by Causing Bodily Injury. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.2, Assault -- by Threats. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.3, Assault -- by Physical Contact. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 7.5, Aggravated Assault -Serious Bodily Injury. McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series � 25.3, Unlawful Possession of Firearm. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 102.4, List of Statutory Presumptions.

McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 116.1, Assault. McCormick, Blackwell & Blackwell, 8 Tex. Prac. Series � 131.3, Unlawful Possession of Firearm. Brooks, 23 Tex. Prac. Series � 14.14, Criminal Codes. Koons, 33 Tex. Prac. Series � 25.5, Criminal Penalties. Koons, 33 Tex. Prac. Series � 8.10, Protective Orders -- Family Violence. Dix and Dawson, 40 Tex. Prac. Series � 3.29, Special Rules -- Aggravated Offenses. Dix and Dawson, 40 Tex. Prac. Series � 11.76, Specimens Taken for Treatment Reasons. Dix and Dawson, 41 Tex. Prac. Series � 20.282, Specificity Required by Traditional Case Law. Dix and Dawson, 41 Tex. Prac. Series � 20.383, Alternative Ways of Committing Single Offense -- Distinguishing Different Offenses. Dix and Dawson, 43 Tex. Prac. Series � 31.65, Application of the Hypothetically Correct Jury Charge Analysis -- Specificity Pleaded in the Charging Instrument -Construing Pleadings Alleging Specifics. Dix and Dawson, 43 Tex. Prac. Series � 38.128A, Family Violence Enhancement to Felony. NOTES OF DECISIONS In general 3 Accident or mistake, defenses 23 Admissibility of evidence 29 Aggravated and simple assault, instructions 38 Alarming or threatening acts 8 Bodily injury 6 Bodily injury, instructions 37 Bodily injury, sufficiency of evidence 31 Consent, instructions 35.5 Construction and application 2 Counsel 43.5 Deadly weapon, sufficiency of evidence 31.5

Defenses 21-23 Defenses - In general 21 Defenses - Accident or mistake 23 Defenses - Self-defense 22 Double jeopardy 26 Effective assistance of counsel 43.5 Federal cases 3.5 Findings 43 Guardian and ward 20 Homicide, included offenses 17 Identity of defendant 24 Included offenses 14-17 Included offenses - In general 14 Included offenses - Homicide 17 Included offenses - Indecency with a child 15.5 Included offenses - Reckless conduct 16 Included offenses - Resisting arrest 15 Included offenses - Sexual assault 16.5 Indecency with a child, included offenses 15.5 Indictment 27 Instructions 34-42 Instructions - In general 34 Instructions - Aggravated and simple assault 38 Instructions - Bodily injury 37 Instructions - Consent 35.5 Instructions - Lesser included offense 35 Instructions - Mens rea 36 Instructions - Misdemeanor assault 39 Instructions - Relationship of parties 38.5

Instructions - Resisting arrest 40 Instructions - Robbery 41 Instructions - Self-defense 42 Instructions - Separate offenses 35.7 Jury 46 Law enforcement personnel 18 Law enforcement, sufficiency of evidence 32 Lesser included offense, instructions 35 Means or methods 11 Member of household 42.5 Mens rea 5 Mens rea, instructions 36 Mens Rea, sufficiency of evidence 30 Misdemeanor assault, instructions 39 Physical contacts 7 Preemption 4 Presumptions and burden of proof 28 Public servant, sufficiency of evidence 33.5 Reckless conduct, included offenses 16 Relationship of parties, instructions 38.5 Relationship to defendant, sufficiency of evidence 32.5 Relationship to victim, sufficiency of evidence 32.7 Resisting arrest, included offenses 15 Resisting arrest, instructions 40 Review 45 Right of privacy 9 Robbery, instructions 41 Self-defense, defenses 22 Self-defense, instructions 42

Sentence and punishment 44 Separate offenses, instructions 35.7 Sexual assault, included offense 16.5 Sufficiency of evidence 30-33.5 Sufficiency of evidence - Bodily injury 31 Sufficiency of evidence - Deadly weapon 31.5 Sufficiency of evidence - Law enforcement 32 Sufficiency of evidence - Mens Rea 30 Sufficiency of evidence - Public servant 33.5 Sufficiency of evidence - Relationship to defendant 32.5 Sufficiency of evidence - Relationship to victim 32.7 Sufficiency of evidence - Threatening conduct 33 Teachers and schools 19 Tests 13 Threatening conduct, sufficiency of evidence 33 Validity 1 Verbal threats 10 Weapons 12 Witnesses 25

1. Validity Defendant had standing to bring facial constitutional challenge to statute prohibiting assaults on public servants, claiming that bodily injury was too vague to be constitutionally applied because any defendant could cause police officer some form of pain during course of any arrest, where defendant was convicted for third-degree felony assault on a public servant, rather than misdemeanor, based on officer's claim that he experienced pain as result of defendant's actions. Bryant v. State (App. 10 Dist. 2001) 47 S.W.3d 80, petition for discretionary review refused. Constitutional Law 42.2(1) Statute prohibiting assault of public servant was not unconstitutionally vague for failing to define "bodily injury," "pain," or "impairment of physical condition" defendant was capable of determining from the common meanings of those terms that he was prohibited from rushing at officer while trying to escape, and officer was able to determine that he suffered pain when his fingers were slammed back and bruised during defendant's assault. Bryant v. State (App. 10 Dist. 2001) 47 S.W.3d

80, petition for discretionary review refused. Assault And Battery Constitutional Law 82(6.1)

48;

Constitutional challenge by defendant convicted of assault-family violence to statute requiring trial courts to enter family violence findings once it was determined an offense involved family violence was not ripe for review, as statute had not yet been applied to defendant; though finding of family violence had been entered, the finding would only affect defendant by allowing a higher penalty range if defendant was convicted for a subsequent assault-family violence, and because it was contingent on a remote possibility of a future conviction the statute had not been unconstitutionally applied to defendant. Butler v. State (App. 2 Dist. 2005) 162 S.W.3d 727, petition for discretionary review granted, affirmed 189 S.W.3d 299. Constitutional Law 46(1) Evidence was sufficient to establish that defendant acted knowingly or intentionally in assaulting his girlfriend and her husband and thus supported conviction for aggravated assault; evidence showed that, after defendant's girlfriend and her husband, from whom she was separated, entered defendant's home to retrieve their children, defendant pointed kitchen knife at husband in course of argument and said, while standing close enough to stab husband, he was "going to get him some," and that defendant pushed girlfriend and screamed in her face, and on her return to the house told her, "I knew you were going to pull this." Castillo v. State (App. 5 Dist. 2003) 2003 WL 1918972, Unreported. Assault And Battery 91.6(2) 2. Construction and application Dates of defendant's prior convictions for assault, family violence, unlike fact of prior convictions, were not elements of defendant's subsequent enhanced charge of assault, family violence, under current statute, which stated that prior offense would be deemed committed before effective date of statute if any element occurred before effective date of statute, and thus court had discretion to confine defendant to jail under revised statute, even though prior convictions had occurred under prior version of law that would not have given court discretion to sentence defendant to jail. Sheppard v. State (App. 6 Dist. 1999) 5 S.W.3d 338. Sentencing And Punishment 1828 Although Texas was among a minority of states that allowed a mens rea of recklessness for aggravated assault, Texas penal code defined aggravated assault as that term was ordinarily, contemporarily, and commonly understood, and thus, defendant's prior Texas conviction for aggravated assault constituted a crime of violence for purposes of enhancement under sentencing guidelines of his sentence for attempted illegal reentry by a previously-deported alien. U.S. v. FuentesBerlanga, C.A.5 (Tex.)2005, 149 Fed.Appx. 258, 2005 WL 2285313, Unreported, certiorari denied 126 S.Ct. 1800, 164 L.Ed.2d 538. Sentencing And Punishment 793 3. In general A single difficulty may embrace plural assaults, and a conviction may be had for each. State v. Bradley (1871) 34 Tex. 95; Samuels v. State (1888) 25 Tex.Crim. 537, 8 S.W. 656; Ashton v. State (1893) 31 Tex.Crim. 482, 21 S.W. 48. An assault can be committed under law of Texas only when act is coupled with ability to commit a battery. Vietnamese Fishermen's Ass'n v. Knights of Ku Klux

Klan, S.D.Tex.1981, 518 F.Supp. 993. Assault And Battery

4

An "assault" is an attempt to do something, as, for example, an intentional attempt to do injury, by violence, to the person of another, or simply, an attempt to commit a battery. Robinson v. State (App. 4 Dist. 1982) 630 S.W.2d 394, review refused. Assault And Battery 48 Prior conviction for assault against a household member could be used to enhance current conviction, although prior conviction occurred before effective date of enhancement statute; date of prior conviction was not an element of current crime, and the state was required to prove only defendant's status as having committed prior assault. Manning v. State (App. 14 Dist. 2003) 112 S.W.3d 740, petition for discretionary review refused. Sentencing And Punishment 16 Simple assault by means of grabbing and falling on victim was not a lesserincluded offense of aggravated assault by striking victim with a baseball bat; proof that defendant grabbed and fell on victim was not required to prove aggravated assault by hitting victim with bat, as alleged in indictment. Irving v. State (Cr.App. 2005) 176 S.W.3d 842. Indictment And Information 189(2) 3.5. Federal cases Prior Texas offense of misdemeanor assault, which required causing bodily injury, necessarily involved use or attempted use of physical force, as required for such offense to be predicate for federal offense of unlawful possession of firearm following misdemeanor conviction of domestic violence. U.S. v. Shelton, C.A.5 (Tex.)2003, 325 F.3d 553, rehearing and rehearing en banc denied 67 Fed.Appx. 250, 2003 WL 21145726, certiorari denied 124 S.Ct. 305, 540 U.S. 916, 157 L.Ed.2d 210, certiorari denied 125 S.Ct. 866, 543 U.S. 1057, 160 L.Ed.2d 782. Weapons 4 4. Preemption City ordinance making it illegal to, in any manner oppose, molest, abuse or interrupt a police officer in the execution of his duty, which also made it unlawful for any person to "assault" or "strike" such a police officer, was partially preempted by V.T.C.A., Penal Code �� 22.01 and 22.02, prohibiting assault and aggravated assault. City of Houston, Tex. v. Hill, U.S.Tex.1987, 107 S.Ct. 2502, 482 U.S. 451, 96 L.Ed.2d 398. Municipal Corporations 592(1) 5. Mens rea Where one intending to commit an assault with his fists, is so confused by a blow that he uses a knife without knowing what he is doing, he may be convicted of simple assault. Brewer v. State (Cr.App. 1913) 68 Tex.Crim. 483, 153 S.W. 622. Assault And Battery 54 Statute making a person guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury to another [V.T.C.A., Penal Code �� 22.01(a)(1), 22.02(a)(1)] expresses the three culpable mental states disjunctively and, therefore, requires that there be proof of any one of the three to support a conviction. Perez v. State (App. 13 Dist. 1986) 704 S.W.2d 499. Assault And Battery 49

Indictment charging defendant with assault, by alleging that defendant recklessly caused bodily injury to another by striking victim with a belt, gave defendant sufficient notice of wrongful conduct charged; indictment adequately informed defendant of act relied upon by state to constitute recklessness, and was not required to allege how striking with a belt was done in a reckless manner. State v. Emanuel (App. 5 Dist. 1994) 873 S.W.2d 108. Assault And Battery 77 In prosecution for aggravated assault with deadly weapon, state was not required to prove culpable mental state in connection with aggravating element of use of deadly weapon; culpable mental states of intent, knowledge, and recklessness relate to assault element of causing bodily injury to another, and second culpable mental state is not required to be included with deadly weapon element. Butler v. State (App. 2 Dist. 1996) 928 S.W.2d 286, rehearing overruled, petition for discretionary review refused. Assault And Battery 56 To be guilty of assault, one must intend the result of the conduct, not just the conduct itself. Brooks v. State (App. 3 Dist. 1998) 967 S.W.2d 946. Assault And Battery 49 Assault requires proof that the defendant knew or reasonably believed that the complainant would regard the contact as offensive or provocative at the time of the contact. Ramos v. State (App. 1 Dist. 1998) 981 S.W.2d 700, petition for discretionary review refused. Assault And Battery 48 Assaultive behavior consummated by threat was not a result-oriented offense, which would require proof of culpable mental state with respect to results of conduct; rather, culpable mental state only had to be proved with respect to the nature of conduct. Guzman v. State (App. 13 Dist. 1999) 988 S.W.2d 884. Assault And Battery 49 6. Bodily injury Prior Texas offense of misdemeanor assault, which required causing bodily injury, necessarily involved use or attempted use of physical force, as required for such offense to be predicate for federal offense of unlawful possession of firearm following misdemeanor conviction of domestic violence. U.S. v. Shelton, C.A.5 (Tex.)2003, 325 F.3d 553, rehearing and rehearing en banc denied 67 Fed.Appx. 250, 2003 WL 21145726, certiorari denied 124 S.Ct. 305, 540 U.S. 916, 157 L.Ed.2d 210, certiorari denied 125 S.Ct. 866, 543 U.S. 1057, 160 L.Ed.2d 782. Weapons 4 Statutory definition of "bodily injury" for purposes of assault is purposefully broad and seems to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching. York v. State (App. 2 Dist. 1992) 833 S.W.2d 734, rehearing denied. Assault And Battery 48 An assaultive offense, whether it be simple or aggravated, requires that the actor cause bodily injury to another. Juneau v. State (App. 2 Dist. 2000) 49 S.W.3d 387, petition for discretionary review refused, habeas corpus denied 2002 WL 31875602. Assault And Battery 48; Assault And Battery 54 "Bodily injury" within meaning of statute criminalizing assault on public servant by causing bodily injury encompasses even relatively minor physical contacts as long as they constitute more than mere offensive touching. In re M.C.L. (App. 3 Dist. 2003) 110 S.W.3d 591. Assault And Battery 48

7. Physical contacts Genuine issues of material fact regarding whether gas station manager caused plaintiff to suffer an offensive physical touching, by suggesting to police officer at scene that plaintiff should orally siphon from his car gasoline for which he had been unable to pay and by eagerly supplying the implements requested by police officer to facilitate siphoning, precluded summary judgment on assault claim against manager under Texas law. Hutchison v. Brookshire Bros., Ltd., E.D.Tex.2003, 284 F.Supp.2d 459. Federal Civil Procedure 2515 Where defendant knocked the prosecutor down with a milk bucket, there was an assault and battery. Marrow v. State (Cr.App. 1897) 37 Tex.Crim. 330, 39 S.W. 944. A man's taking hold of a woman without her consent, and in such a way as to cause in her a sense of shame, or a disagreeable emotion of the mind, is sufficient to constitute an assault, and the slightest degree of force would constitute a battery. Poldrack v. State (Cr.App. 1919) 86 Tex.Crim. 272, 216 S.W. 170. Assault And Battery 48 Defendant's placing his hand on prosecutrix' thigh and later in her pants to arouse her in accordance with their previous mutual agreement to engage in intercourse would not constitute "offensive conduct" as defined by subd. (a)(3) of this section so that defendant's testimony to that effect did not raise issue of offensive conduct as a lesser included offense in prosecution for aggravated rape. Conner v. State (App. 6 Dist. 1982) 636 S.W.2d 214. Rape 59(20.1) Evidence was factually sufficient to support misdemeanor assault conviction; eyewitness testified that she observed defendant push alleged victim over a table, eye-witness testified that defendant reached over the table and pushed alleged victim into a wall, other eye-witness testified that defendant shoved alleged victim into a wall and that alleged victim hit the ground, and when asked if he observed defendant being provoked into pushing alleged victim, other eye-witness stated he did not. Modica v. State (App. 9 Dist. 2004) 151 S.W.3d 716, petition for discretionary review refused, rehearing on petition for discretionary review denied, certiorari denied 2006 WL 1002770. Assault And Battery 91.2 8. Alarming or threatening acts The flourish of a knife in a threatening manner sometimes constitutes an assault. Stockton v. State (1860) 25 Tex. 772. Where accused had threatened to beat prosecutor to death the first time they met again, and a few days thereafter he approached him on the highway, in an angry and threatening manner, telling him, if he had a knife, to use it, and the prosecutor was afraid to do so, and then ran his hand into his pocket, but suddenly stopped when prosecutor pointed a pistol at him, an assault was established. Bristow v. State (Cr.App. 1899) 40 Tex.Crim. 505, 51 S.W. 393. Assault And Battery 48 Where one approaches another in a threatening manner and uses threatening language and gestures, it is an assault. Bristow v. State (Cr.App. 1899) 40 Tex.Crim. 505, 51 S.W. 393. An owner of animals, who by threatened use of violence took them from one who had

taken them up for depredating on his crop, did not violate Rev.P.C.1895 art. 600 (now, this section). Franklin v. State (Cr.App. 1911) 61 Tex.Crim. 235, 134 S.W. 702. Drawing back or lifting the arm to strike one who could have been hit is an assault. Western Union Telegraph Co. v. Bowdoin (Civ.App. 1914) 168 S.W. 1. Assault And Battery 2 A threat is essentially conditional in one way or another, and because this section defines intentional threat of imminent bodily injury as "assault," conditional aspect does not prevent threat from constituting "assault." Tanksley v. State (App. 3 Dist. 1983) 656 S.W.2d 194. Assault And Battery 48 Threats required for assault may be communicated by action or conduct as well as words. Green v. State (App. 13 Dist. 1992) 831 S.W.2d 89, rehearing overruled. Assault And Battery 48 9. Right of privacy An "assault" is an offense against the peace and dignity of the state as well as an invasion of private rights. Texas Bus Lines v. Anderson, 1950, 233 S.W.2d 961, ref. n.r.e.. Assault And Battery 2 Conduct described in this section as constituting an assault is also an invasion of private rights constituting a civil tort; however, definition of assault is the same whether it is the subject of a criminal prosecution or a civil suit for damages. Hogenson v. Williams (Civ.App. 1976) 542 S.W.2d 456. Assault And Battery 2 Assault is both an offense against peace and dignity of state as well as an invasion of private rights; definition of assault, whether in civil or criminal trial, is the same. Moore's, Inc. v. Garcia (Civ.App. 1980) 604 S.W.2d 261, ref. n.r.e.. Assault And Battery 2; Assault And Battery 48 10. Verbal threats Defendant who went to witness to secure his impounded stock, and who, in reply to witness' threat to turn stock over to officers, stated that he would turn witness over to undertaker, was not guilty of assault within Rev.P.C.1911 art. 1013 (now, this section), where at time of making remark defendant was going away from witness and distance was not shown, nor was it claimed that he made any demonstration with gun in his possession. Clark v. State (Cr.App. 1925) 99 Tex.Crim. 73, 268 S.W. 731. Assault And Battery 48 In order to prove assault by verbal threats, State had to show that defendant threatened police officer with imminent bodily injury. Hill v. State (App. 11 Dist. 1992) 844 S.W.2d 937. Assault And Battery 48 Showing of "imminent" bodily injury as required to prove assault by verbal threats means a danger which must be instantly met and which is near at hand, in that it is on the verge of happening. Hill v. State (App. 11 Dist. 1992) 844 S.W.2d 937. Assault And Battery 48 The validity of officers' attempt to arrest defendant for the crime of interfering

with the performance of their public duties was not a defense to crime of assault on a public servant in the lawful discharge of his official duties, even if defendant's alleged interference involved speech only. Tucker v. State (App. 13 Dist. 2003) 114 S.W.3d 718, petition for discretionary review refused, rehearing on petition for discretionary review denied. Assault And Battery 67 11. Means or methods An assault may be committed by one or more persons at the same time by the same act. State v. Bradley (1871) 34 Tex. 95. The offense of assault with a motor vehicle must arise out of the collision of the vehicle with a person, or a causing of injury to a person; and the assault may consist of the vehicles striking a person's body or its striking a vehicle in which a person is riding, or its striking a vehicle that is thereby caused to strike the victim. Perez v. State (Cr.App. 1977) 545 S.W.2d 839. Automobiles 347 Assault under subd. (a)(2) of this section may be accomplished through use of animate object, such as a dog. Garrett v. State (Cr.App. 1981) 619 S.W.2d 172. Assault And Battery 48 Despite defendant's claim of self-defense, conviction for assault was supported by legally sufficient evidence that defendant hit victim before victim ever attempted to pull gun from back seat of car. Williams v. State (App. 1 Dist. 1995) 911 S.W.2d 191, petition for discretionary review refused. Assault And Battery 91.2; Assault And Battery 91.13(5) 12. Weapons The use of a loaded gun which was incapable of being fired because of a broken firing pin was a simple assault and not an aggravated assault with a deadly weapon. Pearce v. State (Cr.App. 1897) 37 Tex.Crim. 643, 40 S.W. 806. Defendant, who went to witness to secure his impounded stock with a gun, which he carried with barrel pointed at ground, and who made no demonstration with it and used no threatening language and who replied in affirmative whether he had brought gun to secure his stock, without changing his position or raising gun or making threat to use it, was not guilty of assault within Rev.P.C.1911, arts. 1008, 1013 (now, this section). Clark v. State (Cr.App. 1925) 99 Tex.Crim. 73, 268 S.W. 731. Assault And Battery 53 Where the instrument used in an alleged assault is not a deadly weapon and no serious injury is inflicted, the issue of simple assault arises. Brown v. State (Cr.App. 1950) 155 Tex.Crim. 233, 233 S.W.2d 578. Assault And Battery 48 Automobile can be "deadly weapon". Butler v. State (App. 2 Dist. 1996) 928 S.W.2d 286, rehearing overruled, petition for discretionary review refused. Automobiles 347 Although a knife is not per se a "deadly weapon" for purposes of the aggravated assault statute, a knife can be found to be a deadly weapon based on the nature of its use or intended use. Garcia v. State (App. 1 Dist. 1999) 17 S.W.3d 1, petition for discretionary review refused. Assault And Battery 56

Evidence in aggravated assault prosecution supported finding that defendant used or exhibited "deadly weapon"; defendant stabbed correctional officer with spearlike sharpened metal object, and officer testified weapon was capable of causing death or serious bodily injury. Simmons v. State (App. 6 Dist. 2003) 106 S.W.3d 756. Assault And Battery 91.10(1) Evidence was factually sufficient to support conviction for aggravated assault with a deadly weapon, even though police did not find knife in vicinity of altercation; alleged victim and two witnesses testified that defendant got out of his car with a knife and used knife to stab alleged victim and that when police arrived, defendant ran around the corner with knife in his hands and returned a few moments later without knife. Trevino v. State (App. 2 Dist. 2004) 2004 WL 452259, Unreported, rehearing overruled. Assault And Battery 91.6(2) Evidence was legally sufficient to support conviction for aggravated assault with a deadly weapon; alleged victim and two witnesses testified that defendant got out of his car with a knife and used knife to stab alleged victim. Trevino v. State (App. 2 Dist. 2004) 2004 WL 452259, Unreported, rehearing overruled. Assault And Battery 91.6(2) 13. Tests Hospital worker's taking of blood specimen from motorist, who was not in condition which might justify emergency action and had not given his consent, was an assault, in violation of state law, requiring suppression of the results. Hailey v. State (App. 10 Dist. 2001) 50 S.W.3d 636, petition for discretionary review granted, reversed 87 S.W.3d 118, certiorari denied 123 S.Ct. 2218, 538 U.S. 1060, 155 L.Ed.2d 1111, rehearing denied 124 S.Ct. 373, 540 U.S. 941, 157 L.Ed.2d 261. Assault And Battery 2; Automobiles 419 14. Included offenses--In general The terms "simple assault" and "assault and battery" are used synonymously, and the latter term does not include an aggravated assault. Foster v. State (1863) 27 Tex. 236. Aggravated assault and battery necessarily includes simple assault and battery. One cannot be heard to complain of conviction of the latter on proof sufficient to establish the former. Foster v. State (App. 1888) 8 S.W. 664. An "affray", an "assault and battery", and an "aggravated assault" were separate and distinct offenses. McCraw v. State (Cr.App. 1914) 73 Tex.Crim. 45, 163 S.W. 967. Evidence that defendant's mother and sister had not observed a gun in defendant's apartment and that victim vacillated when describing handgun defendant allegedly held to her head did not require jury instruction on lesser included offense of aggravated assault in prosecution for aggravated assault with deadly weapon; testimony of mother and sister did not negate defendant's use of handgun on day of offence, and victim was unwavering in her observation of handgun in defendant's hand that he pointed at her head. Moss v. State (App. 2 Dist. 1996) 919 S.W.2d 907, petition for discretionary review refused, rehearing on petition for discretionary review denied. Assault And Battery 96(8)

Assault is not a lesser-included offense of either aggravated assault or indecency with a child because (1) neither charged offense requires proof that the defendant knew or reasonably believed that the complainant would regard the contact as offensive or provocative at the time of the contact; (2) assault differs more from the charged offenses than simply in injury or risk of injury; (3) assault differs more from the charged offenses than solely by having a less culpable mental state; and (4) assault does not consist of an attempt to commit either of the charged offenses. Ramos v. State (App. 1 Dist. 1998) 981 S.W.2d 700, petition for discretionary review refused. Indictment And Information 189(2); Indictment And Information 191(.5) Aggravated assault with which defendant was charged did not constitute a lesserincluded offense of manslaughter, and thus such aggravated assault could serve as predicate offense for felony murder, where state alleged in indictment that defendant committed the aggravated assault with an intentional and knowing mind set. Lawson v. State (App. 7 Dist. 2000) 26 S.W.3d 920, petition for discretionary review granted, petition for discretionary review refused, affirmed 64 S.W.3d 396. Homicide 597; Indictment And Information 191(4) Felony offense of deadly conduct was not lesser included offense of aggravated assault by threat, but rather aggravated assault by threat was lesser included offense of felony deadly conduct, even though aggravated assault required proof of higher culpable mental state, and felony deadly conduct had lesser potential sentence, in light of fact that aggravated assault required only proof that defendant used or exhibited weapon, whereas felony deadly conduct required proof that defendant discharged firearm at or in direction of complainant, which created more serious risk of injury. Rogers v. State (App. 6 Dist. 2001) 38 S.W.3d 725, petition for discretionary review refused, appeal after new sentencing hearing 87 S.W.3d 779. Indictment And Information 189(2) Misdemeanor assault was not lesser included offense of aggravated assault of public servant, where defendant used and exhibited deadly weapon during his assault on detective. Schreyer v. State (App. 5 Dist. 2005) 2005 WL 1793193, Unreported, petition for discretionary review refused. Indictment And Information 189(2) 15. ---- Resisting arrest, included offenses Resisting arrest is a lesser included offense of assault on a public servant. Lofton v. State (App. 3 Dist. 1999) 6 S.W.3d 796, petition for discretionary review granted, reversed 45 S.W.3d 649. Indictment And Information 191(7) Resisting arrest was not lesser included offense of charged offense of assault of a public servant, as elements of the alleged lesser offense were not functionally the same or less than those required to prove the charged offense, which required bodily injury and included a reckless mental state, and alleged testimony of defendant's witness regarding a chase and a subsequent encounter were not facts required to establish the charged offense and, thus, was not evidence of any alleged lesser included offense of the charged offense. Gilmore v. State (App. 9 Dist. 2001) 44 S.W.3d 92, petition for discretionary review refused. Indictment And Information 191(.5) Defendant was not entitled to lesser-included offense instruction, in his prosecution for assault on a public servant, on theory of resisting arrest; defendant used force to prevent officers from effecting his arrest, resulting in injury to an officer. Oiler v. State (App. 13 Dist. 2002) 77 S.W.3d 849, petition

for discretionary review refused. Criminal Law

795(2.30)

Resisting arrest is not a lesser included offense of assault on a public servant. Jones v. State (App. 7 Dist. 2002) 83 S.W.3d 386, petition for discretionary review refused. Indictment And Information 191(.5) Regardless of whether defendant's arrest was lawful or unlawful under the search and seizure provisions of federal and state constitutions, deputy constable was in the lawful discharge of his duty when he attempted to arrest defendant in defendant's home, and thus, defendant could be convicted of crime of assault on a public servant for his actions in resisting that arrest. Tucker v. State (App. 13 Dist. 2003) 114 S.W.3d 718, petition for discretionary review refused, rehearing on petition for discretionary review denied. Assault And Battery 48 15.5. ---- Indecency with a child, included offenses Offense of misdemeanor assault by means of touching victim's back in a non-sexual way was not a lesser-included offense of indecency with a child by means of sexual contact; proof that defendant touched victim's back was not required to prove indecency charge, rather the indecency charge required the State to prove that defendant acted with intent to arouse or gratify the sexual desire of some person, not that he knew or should have reasonably believed that victim would have regarded his touching as offensive or provocative, which was required for assault offense. Silber v. State (App. 13 Dist. 2006) 2006 WL 347167, Unreported, petition for discretionary review filed. Indictment And Information 191(0.5) 16. ---- Reckless conduct, included offenses Offense of assault was not lesser included offense to reckless conduct, and trial court did not err, in prosecution for reckless conduct, in refusing to charge on offense of assault. Gallegos v. State (Cr.App. 1977) 548 S.W.2d 50. Assault And Battery 96(1) Under this chapter, reckless conduct is lesser and included offense to assault. Gallegos v. State (Cr.App. 1977) 548 S.W.2d 50. Indictment And Information 189(2) Reckless conduct is a proof of same or less charged; disapproving 1985) 693 S.W.2d 434. lesser included offense of assault if it is established by than all facts required to establish commission of offense Gallegos v. State, 548 S.W.2d 50. Bell v. State (Cr.App. Indictment And Information 191(6)

16.5. ---- Sexual assault, included offense Aggravated assault with a deadly weapon was not a lesser included offense of aggravated sexual assault, but rather was a separate and distinct offense; the state was not required to prove that the defendant caused bodily injury to the complainant, threatened to cause bodily injury to the complainant, or caused physical contact with the complainant, knowing the contact would be regarded as offensive to prove aggravated sexual assault. Williamson v. State (App. 5 Dist. 2006) 2006 WL 894873, Unreported. Indictment And Information 189(2)

17. ---- Homicide, included offenses If accused placed a child, to which his sister-in-law had just given birth, in an exposed position near his house, without any intent to kill it, but to hide his sister-in-law's shame and his own paternity of it until it could be carried away, he would not be guilty of assault to murder, but of some lesser degree of assault, if of anything. Martin v. State (Cr.App. 1909) 57 Tex.Crim. 264, 122 S.W. 558. Homicide 730 In prosecution of passenger for murder of street car conductor, where there was evidence that the conductor, while the car was in motion pushed passenger off from platform, causing him to fall on his back, instruction that, if the conductor ejected passenger, causing him bodily pain, "such as was reasonably calculated to produce passion," the passenger could not be convicted of higher degree of homicide than manslaughter, was erroneous, since such ejection from car constituted an assault and battery, and was sufficient to reduce the crime to manslaughter without specific proof of pain and without proof that it was calculated to produce passion. Mickle v. State (Cr.App. 1921) 88 Tex.Crim. 405, 227 S.W. 491. Homicide 679 Defendant charged by information with criminally negligent homicide could not be found guilty of simple assault on lesser included offense theory since simple assault, because it requires more culpable mental state to establish its commission than criminal negligence, cannot be lesser included offense of criminally negligent homicide. Bayona v. State (Cr.App. 1976) 544 S.W.2d 155. Indictment And Information 191(4) Assault was a lesser-included offense of murder as charged in indictment in murder prosecution; in proving defendant caused victim's death, state necessarily had to prove defendant caused bodily injury to victim, and in making its case, state relied heavily on defendant's videotaped statement in which defendant claimed she wrestled with victim, hit him with her hands, and swung at him, which were sufficient facts to show defendant assaulted victim. Hayward v. State (App. 14 Dist. 2003) 117 S.W.3d 5, rehearing overruled, petition for discretionary review granted, reversed 158 S.W.3d 476, on remand 2006 WL 162582. Indictment And Information 191(4) 18. Law enforcement personnel Police officer did not commit assault against arrestee under Texas law by pointing his pistol at arrestee in course of his official duties. Hinojosa v. City of Terrell, Tex., C.A.5 (Tex.)1988, 834 F.2d 1223. Assault And Battery 2 In prosecution for aggravated assault on a police officer, court did not err in overruling defendant's motion to be punished under this section proscribing assault generally, rather than � 38.03 proscribing use of force against peace officer. Johnson v. State (Cr.App. 1977) 548 S.W.2d 700. Assault And Battery 100 Uniformed police officer was public servant, for purposes of statute prohibiting assault on public servant, even though he was responding to call outside his jurisdiction, as officer had authority to arrest outside his jurisdiction defendant who committed felony in officer's presence. Hoitt v. State (App. 6 Dist. 2000) 28 S.W.3d 162, petition for discretionary review granted, petition for discretionary review dismissed with per curiam opinion 65 S.W.3d 59, rehearing on petition for discretionary review denied. Assault And Battery 48

Police officers were "lawfully discharging" their official duties as peace officers when they restrained defendant in attempt to prevent her from interfering with other officers' interview with defendant's husband, as required to support conviction for assault of public servant, in that separation was standard police procedure when responding to 911 call related to domestic disturbance. Johnson v. State (App. 3 Dist. 2005) 172 S.W.3d 6, rehearing overruled, petition for discretionary review refused. Assault And Battery 91.10(2)

19. Teachers and schools Teacher walking on campus during school day was "in the performance of educational duty" within meaning of statutory prohibition against assaulting teacher in the performance of educational duty. Trujillo v. State (App. 4 Dist. 1991) 809 S.W.2d 593. Assault And Battery 48 Teacher's presence at school-related function away from campus receives full protection of statutory prohibition against assaulting teacher in performance of educational duty. Trujillo v. State (App. 4 Dist. 1991) 809 S.W.2d 593. Assault And Battery 48 Evidence was sufficient to support finding that juvenile knew that person he assaulted in classroom was an education assistant, thus supporting delinquency adjudication for assault on a public servant, even though juvenile did not know that assistant's employment gave her special legal standing under the penal code. In re J.L. O. (App. 3 Dist. 2002) 2002 WL 1804951, Unreported. Infants 176 20. Guardian and ward Defendant, on going to a hospital, turned over his 6 year old child to one to be taken care of until he was able to leave the hospital and care for the child, and was arrested on a charge of vagrancy, and sued out a writ of habeas corpus, and obtained an agreement whereby such person was to keep the child until the charge was disposed of. The charge was dismissed on agreement that defendant would not interfere with the child's custody until it was determined whether he was entitled thereto. On the refusal of the one in possession to surrender the child and in attempting to get possession of the child, he had no right to strike the person in possession. Carrel v. State (Cr.App. 1915) 77 Tex.Crim. 344, 178 S.W. 331. A guardian having for a long time had no care or custody of his ward, but having emancipated her, as concerns care, custody, and control of her, cannot justify an assault and battery on her, on the ground of the relationship and the right to punish. Eitel v. State (Cr.App. 1916) 78 Tex.Crim. 552, 182 S.W. 318. 21. Defenses--In general That defendant was restrained before he made battery is no defense. Goss v. State (Cr.App. 1897) 40 S.W. 725. Violence to the person may be lawful and does not always amount to an assault or battery. Pitts v. State (Cr.App. 1946) 149 Tex.Crim. 608, 197 S.W.2d 1012. Assault

And Battery

48

Provocation bringing about an assault means that treatment by another which arouses anger or passion, and self-defense does not enter in. Godwin v. Stanley (Civ.App. 1959) 331 S.W.2d 341, ref. n.r.e.. Assault And Battery 12 In action to recover for alleged assault allegedly arising when school football coach for seventh grade team struck student player's helmet and grabbed his face mask, phrase "for the purpose of instruction and encouragement," although coming close to expressing legitimate purposes of privileged force, was neither entirely accurate nor complete and was conductive to misunderstanding. Hogenson v. Williams (Civ.App. 1976) 542 S.W.2d 456. Assault And Battery 43(2) There is no appearance of legislative purpose to exclude justification of necessity in cases of assault. Williams v. State (Cr.App. 1982) 630 S.W.2d 640. Criminal Law 38 Voluntary intoxication was not defense to commission of assault with bodily injury. Schumacher v. State (App. 3 Dist. 1991) 814 S.W.2d 871. Criminal Law 53

No evidence existed, in prosecution for assault with bodily injury arising from incident at defendant's ex-husband's apartment, to show that victim was a danger to defendant's daughter and thus provide a basis for a "defense of others" defense; victim and defendant's daughter had developed close relationship during the time victim had been dating defendant's ex-husband, victim and defendant's daughter were already asleep on night of assault, and defendant could point only to her "intuition" as a mother to support a belief that daughter was in danger. Wilhite v. State (App. 2 Dist. 2003) 2003 WL 21666691, Unreported. Assault And Battery 91.13(6) 22. ---- Self-defense, defenses For defendant, after there was no danger of violence from one who had been knocked down and was being held, to kick at him was an assault. Marrow v. State (Cr.App. 1897) 37 Tex.Crim. 330, 39 S.W. 944. Assault And Battery 67 Fact that automobile passenger was detained by police officer in order that officer might check on license of driver and verify whether traffic offense warrants were outstanding against passenger furnished no defense to assault upon officer, if officer had used no force and had not touched passenger or restrained him by force. Randall v. State (Cr.App. 1969) 447 S.W.2d 912. Assault And Battery 63 To use firearms defensively when attacked is not an assault under Texas law. Lester v. State (Cr.App. 1973) 498 S.W.2d 927. Assault And Battery 67 Even if department store security officer's attempted arrest of defendant was result of unlawful search, that would not have warranted defendant's use of force to prevent an unlawful arrest and, since no force was used against defendant by security officer, who merely requested defendant to return the stolen merchandise, defendant was not entitled to rely upon self-defense when charged with assault for spraying mace in face of security officer. Lambert v. State (App. 4 Dist. 1981) 625 S.W.2d 31. Assault And Battery 67 Court of Appeals would not engage in factual review of evidence presented in assault proceeding to determine whether defendant proved self-defense, where

defendant did not bear burden of proof on issue of self-defense. Williams v. State (App. 1 Dist. 1995) 911 S.W.2d 191, petition for discretionary review refused. Criminal Law 1134(3) Evidence was sufficient to disprove self-defense beyond reasonable doubt and to sustain conviction for assault despite testimony of defendant and his companions that, while they were in their car leaving parking lot, complainant confronted them with shovel and pulled knife on them, in light of testimony by complainant that he did not pull pocket knife from his pocket until after he was attacked and since, even if jury did believe the testimony of defendant and his companions, it could have concluded that the four men could simply have driven away. Sterry v. State (App. 5 Dist. 1997) 959 S.W.2d 249. Assault And Battery 91.13(5); Assault And Battery 91.6(2) Homosexual conduct was lesser included offense of charged sexual assault under circumstances clearly indicating that both defendant and victim were males, that nothing in record would contradict conclusion that they engaged in deviate sexual intercourse, and that only issue for jury was whether intercourse was consensual. Valdez v. State (App. 8 Dist. 1999) 993 S.W.2d 346, rehearing overruled, petition for discretionary review refused. Indictment And Information 191(.5) Evidence was insufficient to support claim that defendant was acting in selfdefense during altercation with victim, even though victim testified that defendant put arm out and pushed her away defensively as she swung at him, and sheriff's deputy testified that defendant told him substantially same story on night of incident, where victim's friend testified that, on night after incident, victim painted defendant as aggressor, and jury also heard victim's testimony regarding nature of relationship, other violent incidents between them, and fact that victim tried to leave defendant before and after incident, but continued to stay with him because she loved him. Zuliani v. State (App. 3 Dist. 2001) 52 S.W.3d 825, petition for discretionary review granted, reversed 97 S.W.3d 589, on remand 2003 WL 21023105. Assault And Battery 91.13(5) If in the justifiable self-defense of himself, the accused unintentionally injured a bystander, he would be guilty of no offense. Plummer v. State (1878) 4 Tex.Crim. 310; Clark v. State (1885) 19 Tex.Crim. 495; Powell v. State (1893) 32 Tex.Crim. 230, 22 S.W. 677. Evidence was factually sufficient to support conviction for misdemeanor assault, even though defendant claimed self-defense, and victim recanted her police statement and testified that defendant's actions toward her involved only pushing and that he only did so in self-defense; victim told police officers at scene that defendant pinned her against wall with his arm on her neck, struck her with his hand, bit her, and locked her in bathroom for about one hour, officers saw that victim's lip was cut and found bite marks on victim's back and buttocks, photographs of injuries were provided to jury, and defendant admitted to officers that he struck victim with his fist. Bufkin v. State (App. 14 Dist. 2005) 179 S.W.3d 166, petition for discretionary review granted. Assault And Battery 91.13(5) Evidence was factually sufficient to support jury's implicit rejection of defendant's theory of self-defense, in prosecution for aggravated assault; victim was holding child, had no weapon, made no verbal threats, and made no physical gestures toward defendant, based on evidence before it, jury could have concluded that it was not reasonable for defendant to believe that use of force was immediately necessary to defend himself from victim, and even if defendant could have reasonably believed that victim was threatening him with deadly force, he was unable to bring forth evidence he could not have retreated. Yarborough v. State

(App. 6 Dist. 2005) 178 S.W.3d 895, petition for discretionary review refused. Assault And Battery 91.13(5) Evidence was legally sufficient to support jury's implicit rejection of defendant's theory of self-defense, in prosecution for aggravated assault; defendant presented no evidence victim threatened him with any amount of force, and in defendant's videotaped statement at hospital, he explained twice that victim had been "standing off to the side" when he leaned toward victim to let her have child when child's mother stabbed him, and thus, evidence did not establish defendant was reasonable in believing that use of force was necessary to protect himself from victim. Yarborough v. State (App. 6 Dist. 2005) 178 S.W.3d 895, petition for discretionary review refused. Assault And Battery 91.13(5) Defendant did not adequately raise self-defense in domestic assault prosecution; defendant did not reasonably believe it was immediately necessary to strike victim repeatedly to protect himself from her. Daisy v. State (App. 5 Dist. 2002) 2002 WL 31528723, Unreported, habeas corpus denied 2004 WL 3167743. Assault And Battery 67 Any harm arising from jury instruction at assault trial that erroneously instructed jury that defendant's right to act in self-defense had to be based on bodily injury was not egregious, so as to warrant reversal of the conviction, given uncontroverted evidence that the victim had struck defendant so that he had a reasonable expectation of some bodily injury. Eck v. State (App. 1 Dist. 2004) 2004 WL 1171978, Unreported, petition for discretionary review refused. Criminal Law 1038.1(4) Evidence that defendant choked victim by the neck until she urinated on herself, after she had initiated an argument and become physically violent, was legally sufficient to support jury's rejection of defendant's self-defense theory on the ground that the degree of forced used by defendant was more than immediately necessary to protect himself. Eck v. State (App. 1 Dist. 2004) 2004 WL 1171978, Unreported, petition for discretionary review refused. Assault And Battery 91.13(5) 23. ---- Accident or mistake, defenses If, in a difficulty he brought on, accused, in an effort to strike an antagonist, accidentally strikes and injures a third party, he is guilty of assault and battery on the latter. Powell v. State (Cr.App. 1893) 32 Tex.Crim. 230, 22 S.W. 677. To warrant a conviction for accidentally striking another when correcting a child, evidence must show the correction immoderate. Turner v. State (Cr.App. 1896) 35 Tex.Crim. 369, 33 S.W. 972. If one who begins an affray strikes a blow or does an act intended for his original assailant, but which takes effect on another, he cannot claim justification for such accidental blow, but would be guilty of an offense thereby. Savage v. State (Cr.App. 1925) 100 Tex.Crim. 361, 272 S.W. 193. Defendant who intentionally shot at a third person, allegedly in self-defense, but hit plaintiff, would not be excused from liability for assault and battery on ground that defendant did not intentionally fire his pistol at plaintiff. Morrow v. Flores (Civ.App. 1949) 225 S.W.2d 621, ref. n.r.e.. Assault And Battery 3

24. Identity of defendant Evidence proved defendant's identity as perpetrator of assault on correctional officer who had earlier observed infraction by inmate with name matching defendant's; although officer could not identify assailant because she closed eyes and covered face during assault, she saw same inmate involved in infraction as she entered restroom where assault occurred, a second officer testified the perpetrator was pictured in photograph showing an inmate lying stomach down on floor, and a third officer testified the person in photograph was defendant and was the person removed from scene of assault. Clark v. State (App. 9 Dist. 2001) 47 S.W.3d 211. Assault And Battery 91.10(1) Evidence was sufficient to identify defendant as perpetrator of aggravated robbery and aggravated assault, even though defendant argued that eyewitnesses did not describe his facial appearance; one victim described defendant as smaller man wearing white T-shirt and jeans and identified him as same man who had pointed gun at her based on his clothing, fit of clothing, and his height and build, eyewitness identified defendant based on his clothing and testified that his Tshirt was torn and that he had facial cuts, officer identified defendant based on his clothing, height, and build, defendant fled from scene, and other officer identified defendant based on his clothing and build. Sosa v. State (App. 1 Dist. 2005) 177 S.W.3d 227. Criminal Law 566; Robbery 24.40 Whether jury's affirmative finding of family violence, by a preponderance of the evidence, in prosecution for misdemeanor assault would sustain an increased penalty in a future prosecution of defendant was not ripe for appellate review. Word v. State (Cr.App. 2006) 2006 WL 1639115. Criminal Law 1134(3) 25. Witnesses Defense counsel's eliciting testimony that complainant might have been aggressor in stormy relationship opened the door to evidence of defendant's prior misdemeanor convictions for assault of complainant, even if those convictions did not involve moral turpitude within meaning of rule governing impeachment evidence. Hardeman v. State (App. 3 Dist. 1993) 868 S.W.2d 404, petition for discretionary review granted, petition for discretionary review dismissed 891 S.W.2d 960. Criminal Law 396(1) Misdemeanor assault committed by man against woman is crime of moral turpitude and is admissible for impeachment purposes. Hardeman v. State (App. 3 Dist. 1993) 868 S.W.2d 404, petition for discretionary review granted, petition for discretionary review dismissed 891 S.W.2d 960. Witnesses 345(2) 26. Double jeopardy Introduction of defendant's prior conviction for assault, allegedly against a family member, at his trial for assault of a household member did not subject defendant to multiple prosecutions or punishments for his previous offense and thus did not violate double jeopardy prohibitions. State v. Cagle (App. 14 Dist. 2002) 77 S.W.3d 344, petition for discretionary review refused. Criminal Law 27 Offense of deadly conduct based on discharge of a firearm at, or in direction of,

one or more individuals was lesser included offense of aggravated assault for purposes of double jeopardy claim because elements required to prove deadly conduct were same as elements required for aggravated assault; both offenses required showing that defendant acted knowingly and evidence that defendant shot gun in direction of group of persons and hit one person causing him bodily injury proved both aggravated assault and deadly conduct. Honeycutt v. State (App. 4 Dist. 2002) 82 S.W.3d 545, petition for discretionary review refused. Double Jeopardy 162 Prosecution for assault on a police officer after defendant pleaded nolo contendere to resisting arrest did not violate prohibition against double jeopardy, where each offense required proof of a fact that the other did not. Ortega v. State (Cr.App. 2005) 171 S.W.3d 895. Double Jeopardy 141 Trial court's sentence on assault conviction, which imposed an additional 20 days' confinement and restitution of victim's medical expenses as condition of community service on probated 180 day term of confinement assessed by jury, was not second punishment for same offense, as would violate double jeopardy clause; sentence was authorized by provisions of criminal procedure code governing community service and restitution. Burris v. State (App. 2 Dist. 2005) 172 S.W.3d 75. Double Jeopardy 31 27. Indictment Where indictment charged intentional or knowing assault by threat, not reckless assault by bodily injury, manner and means specificity was not required in indictment. Hare v. State (App. 8 Dist. 1986) 713 S.W.2d 396, petition for discretionary review refused. Assault And Battery 77 Allegation that defendant threatened to release snakes into residence of another was sufficient to state the offense of making a terroristic threat, even though the information did not allege that the snakes were poisonous, since threat was calculated to raise reasonable apprehension of bodily harm on the part of person threatened by threatening an assault. (Per Cornelius, C.J., with one Justice concurring in the result.) Redfearn v. State (App. 6 Dist. 1987) 738 S.W.2d 28, petition for discretionary review refused. Extortion And Threats 30 In prosecution for aggravated assault with a deadly weapon on a public servant, State's error in reading original indictment, rather than amended indictment, which contained a different description of weapon used by defendant, did not make the evidence insufficient under Gollihar state law standard for measuring sufficiency of the evidence; variance between indictment read to jury and proof offered at trial was immaterial in that there was no indication that defendant was surprised by State's evidence regarding weapon State alleged he used, and variance would not subject defendant to another prosecution for same offense since weapon used was admitted into evidence and described in great detail by victim. Simmons v. State (App. 6 Dist. 2003) 106 S.W.3d 756. Indictment And Information 171 Defendant suffered no actual harm as a result of erroneous omission in the application paragraph on misdemeanor assault in trial for aggravated assault with a deadly weapon on a public servant; jury found defendant guilty of aggravated assault with a deadly weapon on a public servant, as charged in the indictment, and thus, jury would never have considered defendant's guilt of misdemeanor assault. Simmons v. State (App. 6 Dist. 2003) 106 S.W.3d 756. Criminal Law 1173.2(1)

Burglary with intent to commit assault was a lesser included offense of burglary with intent to commit aggravated assault, and thus there was no fatal variance between the indictment and the proof at trial; the offenses had the same elements except for burglary with intent to commit assault a defendant intended to cause bodily injury while a defendant who committed burglary with intent to commit aggravated assault intended to cause serious bodily injury. Koshel v. State (App. 5 Dist. 2002) 2002 WL 31247179, Unreported, petition for discretionary review refused, denial of habeas corpus affirmed 2005 WL 2038207. Indictment And Information 191(2) 28. Presumptions and burden of proof An intent to commit a criminal assault can be presumed from the fact of actual injury to prosecutrix. Miller v. State (Cr.App. 1912) 67 Tex.Crim. 654, 150 S.W. 635. Assault And Battery 82 The State no longer must prove the ability to commit a battery for an accused to be convicted of assault. Miller v. State (App. 13 Dist. 1987) 741 S.W.2d 501, petition for discretionary review refused. In prosecution for assault on public servant, state was required to show that police officer was lawfully attempting to arrest defendant when assault occurred, even though such a requirement was not element of charged offense, as state alleged in indictment that officer was attempting to arrest defendant, allegation described essential element of offense, and proving allegation would not unnecessarily increase state's burden of proof. Hoitt v. State (App. 6 Dist. 2000) 28 S.W.3d 162, petition for discretionary review granted, petition for discretionary review dismissed with per curiam opinion 65 S.W.3d 59, rehearing on petition for discretionary review denied. Criminal Law 80 29. Admissibility of evidence Evidence that defendant previously assaulted victim, and judgment in that case, were admissible in assault prosecution to contradict defendant's claim that his motive for striking victim was love and compassion rather than malice, and there was no showing that evidence should be excluded as prejudicial. Moreno v. State (App. 4 Dist. 1997) 961 S.W.2d 512, rehearing overruled, petition for discretionary review refused. Criminal Law 371(12) Extraneous misconduct evidence that defendant assaulted his girlfriend with razoredged box-cutter five hours before he assaulted complainant was admissible in aggravated assault prosecution; such evidence was relevant to issue of motive, as evidence showed that defendant yelled at girlfriend and attempted to strike her after she danced with complainant once and that defendant's assault on girlfriend occurred after she danced with complainant again, and such evidence was also necessary to jury's understanding of stabbing because defendant's assault of girlfriend showed events that led up to his stabbing of complainant. Garcia v. State (App. 1 Dist. 1999) 17 S.W.3d 1, petition for discretionary review refused. Criminal Law 369.2(4); Criminal Law 371(12) Evidence of first inmate's sexual misconduct was irrelevant in prosecution of second inmate for assault of public servant, where evidence did not have tendency to make existence of fact of consequence more or less probable than it would otherwise have been. Williams v. State (App. 10 Dist. 2000) 27 S.W.3d 599,

petition for discretionary review refused. Criminal Law

338(4)

Even if evidence of first inmate's sexual misconduct was relevant in prosecution of second inmate for assault of public servant, probative value of evidence was outweighed by prejudicial effect, where evidence of first inmate's masturbation had no inherent probative value and was in no way similar to evidence regarding second inmate's assault on servant and jury's attention was diverted from offense on trial. Williams v. State (App. 10 Dist. 2000) 27 S.W.3d 599, petition for discretionary review refused. Criminal Law 338(7) Erroneous admission in prosecution of inmate for assault of public servant of evidence of another inmate's sexual misconduct affected inmate's substantial rights and mandated reversal, where state emphasized erroneously admitted evidence and asked for consideration of such evidence when assessing inmate's punishment. Williams v. State (App. 10 Dist. 2000) 27 S.W.3d 599, petition for discretionary review refused. Criminal Law 1169.1(7) Notation on prior assault judgment that family violence was "not applicable or not available" was not an admission that there was no family relationship between defendant and victim, but rather was simply a sign that family violence was not an issue in the prior case and was not litigated or determined, and thus notation did not collaterally estop state from introducing evidence of the prior conviction at defendant's trial for assault on a household member and litigating issue of whether that victim was a family member, which if proven would elevate current charge to a felony. State v. Cagle (App. 14 Dist. 2002) 77 S.W.3d 344, petition for discretionary review refused. Judgment 751 Trial court's erroneous exclusion of evidence that a State's witness, represented as being a disinterested witness, was on deferred adjudication was not harmless error in prosecution for assault on a public servant, even though testimony of witness was somewhat cumulative, and other corroborating evidence existed; State presented only three witnesses to prove defendant's conduct, unlimited crossexamination would have revealed to jury that witness had a potential motive or interest to testify for the State, and it was the role of jury to determine whether testimony was influenced by inherent coercion or intimidation. Jones v. State (App. 7 Dist. 2002) 83 S.W.3d 386, petition for discretionary review refused. Criminal Law 1170.5(1) Notation on defendant's prior assault judgment that family violence was "not applicable" indicated that family violence was not an issue in the case, and thus the State was not collaterally estopped from introducing evidence that defendant's prior assault conviction was based on the assault of a family member, which would elevate defendant's current conviction for assault on a household member to a felony. Collesano v. State (App. 1 Dist. 2002) 2002 WL 2026055, Unreported, petition for discretionary review refused. Judgment 751 Inmate failed to show that evidence of correctional officer's prior reprimand for filing non-work related workers' compensation claim was relevant as to officer's bias or prejudice in inmate's prosecution for assault of public servant, where incident for which workers' compensation claim was denied occurred five years before alleged assault on officer and workers' compensation claim was denied not because accident did not occur but because it occurred during officer's break period. Johnson v. State (App. 14 Dist. 2002) 2002 WL 31318668, Unreported. Witnesses 344(4) Victim's out-of-court statements to police officer were offered to prove that victim was assaulted by defendant, and thus were inadmissible hearsay, in domestic assault prosecution. Daisy v. State (App. 5 Dist. 2002) 2002 WL 31528723,

Unreported, habeas corpus denied 2004 WL 3167743. Criminal Law

419(1.5)

Victim's out-of-court hearsay statements to police officer were admissible as excited utterances, in domestic assault prosecution, where officer testified that when he arrived in response to victim's 911 call, she was very scared and seemed frightened by the events that had just taken place, and officer further testified that victim told him that she did not want to return to the apartment as long as defendant was there. Daisy v. State (App. 5 Dist. 2002) 2002 WL 31528723, Unreported, habeas corpus denied 2004 WL 3167743. Criminal Law 366(6) 30. Sufficiency of evidence--Mens Rea Substantial proof only of the means used in an assault is sufficient to support the charge. Chisom v. State (Cr.App. 1915) 77 Tex.Crim. 397, 179 S.W. 103. Assault And Battery 91.2 Evidence that defendant grabbed the alleged injured female with one hand, and put his other hand on her body at or near her privates, accompanying such acts with an insulting proposal to her, if believed by the jury, would justify a verdict of guilty of assault and battery. Poldrack v. State (Cr.App. 1919) 86 Tex.Crim. 272, 216 S.W. 170. Assault And Battery 91.9 Evidence was sufficient to support finding that defendant knew or reasonably should have known that his contact with child was offensive or provocative; complainant testified that alleged contact made her uncomfortable, and defendant himself stated he was at "point of panic," concerned that it might appear that he was doing something wrong. McCullough v. State (App. 14 Dist. 1986) 710 S.W.2d 142, petition for discretionary review refused. Sentencing And Punishment 2021 There was sufficient evidence to support conviction of defendant for assault with motor vehicle, based on evidence that defendant drove vehicle which rammed into rear of automobile, seriously and permanently incapacitating its driver, at high rate of speed despite knowledge that its brakes were defective. Beaubrum v. State (App. 3 Dist. 1987) 735 S.W.2d 489, petition for discretionary review refused. Automobiles 355(14) Uncontroverted testimony of assault victim that defendant took running leap off a porch onto victim's back, forcing her to the ground and causing injuries to her legs, could support conviction for assault with bodily injury, even though victim also characterized action as reckless; testimony that defendant took running leap, as opposed to stumbling, supported finding of conscious intent. Schumacher v. State (App. 3 Dist. 1991) 814 S.W.2d 871. Assault And Battery 91.2 Evidence was sufficient to prove beyond a reasonable doubt that defendant intentionally or knowingly threatened victim with imminent bodily injury using motor vehicle and later a knife; defendant suddenly accelerated in automobile toward victim in open parking lot forcing victim to run inside store and, although no specific threats were made with regard to knife incident, defendant returned to scene of earlier assault in disguise, continued to approach victim even though he was told to stop, and at same time defendant drew knife which he had concealed behind him. Green v. State (App. 13 Dist. 1992) 831 S.W.2d 89, rehearing overruled. Automobiles 355(14); Automobiles 355(14); Assault And Battery 91.6(2) Assault conviction could be sustained if evidence existed in record that defendant's actions were voluntary where charging instrument alleged that

defendant intentionally and knowingly caused bodily injury to victim. York v. State (App. 2 Dist. 1992) 833 S.W.2d 734, rehearing denied. Assault And Battery 91.7 Evidence was sufficient to establish that defendant intentionally or knowingly threatened police officers with a deadly weapon while they were in the line of duty and, thus, sustained conviction for aggravated assault of police officers; defendant pointed gun at officers who were pursuing him in attempt to make arrest. Cantu v. State (App. 13 Dist. 1997) 953 S.W.2d 772, rehearing overruled, petition for discretionary review refused. Assault And Battery 91.10(1) Evidence supported finding that defendant swung her hand at police officer either with intention of injuring him or with knowledge that injury was reasonably certain to occur, and thus factually sustained conviction for assault on a public servant, notwithstanding testimony of defendant and her husband that defendant's conduct was accidental. Brooks v. State (App. 3 Dist. 1998) 967 S.W.2d 946. Assault And Battery 91.10(1) Evidence was sufficient to support finding that defendant acted recklessly when she kicked and pushed police officers who were trying to prevent her from interfering with other officers' interview of defendant's husband in course of investigating domestic disturbance, as required to support conviction for assault of public servant; in course of attempts to restrain defendant, she flailed her arms and kicked police officers. Johnson v. State (App. 3 Dist. 2005) 172 S.W.3d 6, rehearing overruled, petition for discretionary review refused. Assault And Battery 91.10(1) Evidence was sufficient to support the trial court's finding that the enhancement paragraph against defendant, which alleged that defendant had a previous conviction for assault on a household member, was true, in prosecution for assault on a household member; stipulation from officer who arrested defendant for previous assault established that officer was familiar with defendant and his former wife, that they were married at the time defendant committed his previous assault, and defendant showed no evidence of surprise or prejudice. Collesano v. State (App. 1 Dist. 2002) 2002 WL 2026055, Unreported, petition for discretionary review refused. Sentencing And Punishment 1381(3) Evidence that defendant punched and kicked victim repeatedly after victim told defendant to leave her ex-husband's apartment was legally sufficient, in prosecution for assault with bodily injury, to show that defendant intentionally attacked victim. Wilhite v. State (App. 2 Dist. 2003) 2003 WL 21666691, Unreported. Assault And Battery 91.7 31. ---- Bodily injury, sufficiency of evidence Under Texas law, gas station owner and police officer's alleged insistence that customer siphon ten gallons of gasoline out of his vehicle by mouth resulted in bodily injury sufficient to support claim for assault and battery against officer, where activity allegedly caused customer's eyes to water constantly, and made his mouth, tongue, throat, and stomach burn. Hutchison v. Brookshire Bros., Ltd., E.D.Tex.2002, 205 F.Supp.2d 629. Assault And Battery 2 There was sufficient evidence supporting defendant's conviction for assault causing bodily injury; victim testified that defendant convinced her to come to his apartment where he accused her of stealing money and drugs and having relationship with one of his friends and pushed her and then hit her in face with

his fist, fracturing her jaw, despite defendant's testimony that victim was high and suicidal and that he did not hit her but merely threw her on bed to stop her from jumping out window. McGarity v. State (App. 4 Dist. 1999) 5 S.W.3d 223. Assault And Battery 91.2 Police officers' testimony that defendant kicked them, causing them pain, was sufficient to find that defendant inflicted "bodily harm" on officers, and was sufficient to support assault convictions. Letson v. State (App. 14 Dist. 1990) 805 S.W.2d 801. Assault And Battery 91.10(1) Finding that assault defendant's conduct intentionally, knowingly or recklessly caused bodily injury was not error; defendant did not point out evidence which suggested that his actions were accidental or involuntary and, based upon victim's testimony, trial court could have properly inferred that defendant intentionally and knowingly caused bodily injury. York v. State (App. 2 Dist. 1992) 833 S.W.2d 734, rehearing denied. Assault And Battery 91.7 Victim suffered identifiable impairment of her physical condition when defendant's actions restricted victim's breathing causing her to believe that she was about to pass out and, therefore, evidence was sufficient to support finding beyond a reasonable doubt in assault prosecution that defendant caused bodily injury to victim; defendant choked victim for period of one to ten seconds, cutting off her breath and causing her to believe that she was about to pass out and victim testified that she was "scared to death" by the assault. York v. State (App. 2 Dist. 1992) 833 S.W.2d 734, rehearing denied. Assault And Battery 91.7 State need not prove ability to commit battery for defendant to be convicted of assault. De Leon v. State (App. 13 Dist. 1993) 865 S.W.2d 139. Assault And Battery 50 Bodily injury element of defendant's conviction for assault was supported by police officer's testimony that defendant was very belligerent and uncooperative as police officers attempted to give him traffic ticket for parking his vehicle in fire lane, that defendant pushed officer in chest when officer attempted to have defendant sign traffic ticket. Wawrykow v. State (App. 9 Dist. 1993) 866 S.W.2d 87, petition for discretionary review refused. Assault And Battery 91.10(1) Finding that "bodily injury" element of assault charge had been proven was supported by police officer's testimony that defendant jumped on officer's back and hit officer in head with her fists as officers attempted to place defendant's father under arrest, even though there was no direct evidence that defendant's blows caused officer physical pain or impairment. Wawrykow v. State (App. 9 Dist. 1993) 866 S.W.2d 96. Assault And Battery 91.10(1) Defendant's repeated verbal threats to kill police officer and defendant's violent conduct consisting of kicking, biting and attempting to take officer's holstered gun satisfied threat of imminent bodily injury requirement for assault conviction. Lister v. State (App. 12 Dist. 1994) 894 S.W.2d 771, petition for discretionary review refused. Assault And Battery 48 There was sufficient evidence that defendant caused bodily injury to peace officer by striking him with his hand and fist and pushing him to support conviction for aggravated assault of peace officer, where it was unrefuted that peace officer suffered contusions on his head and face, large bruises on leg and physical pain as result of struggle with defendant, and officer testified that he arrived at defendant's premises in full police uniform to settle domestic dispute, and that defendant initiated struggle when officer tried to arrest him. Hernandez v. State (App. 2 Dist. 1995) 903 S.W.2d 109, rehearing overruled, petition for

discretionary review refused. Assault And Battery

91.10(1)

Evidence that behavioral orientation instructor grabbed juvenile in attempt to prevent continuation of a fight between the juvenile and another and that the juvenile kneed the counselor in the face in an effort to get away so that he could continue the fight was sufficient to show an assault. Matter of M.M.R. (App. 8 Dist. 1996) 932 S.W.2d 112. Infants 176 Evidence was legally sufficient to support assault conviction, even though complainant testified she could not remember any events leading to defendant's arrest, where officer stated that when he responded to call of domestic disturbance, he found complainant crying and in pain, and that complainant's hair was messed up in back, complainant made accusatory statement wherein she said defendant hit her in head with fist, officer also testified to defendant's inculpatory statement in response to complainant's accusation, and complainant testified that she remembered arguing with defendant, who was her husband, calling police, and crying while she spoke to officer. Salley v. State (App. 14 Dist. 2000) 25 S.W.3d 878. Assault And Battery 91.2 There was factually sufficient evidence that defendant caused physical injury to officer during scuffle, after defendant attempted to flee, to support conviction for assaulting a public servant; evidence included officer's written report that his fingers were injured when defendant rushed at him and testimony that officer was unable to use fingers for three to four days. Bryant v. State (App. 10 Dist. 2001) 47 S.W.3d 80, petition for discretionary review refused. Assault And Battery 91.10(1) Sufficient evidence supported assault conviction, where evidence indicated that victim testified that after she had refused to perform sexual favor for defendant, she felt sharp, painful blow to back, victim indicated that she did not see object that defendant used to hit her, but assumed that it was side of fist, contusion resulting from attack was in size and shape of hand, and defendant testified that he pushed complainant with palm of hand. Rose v. State (App. 13 Dist. 2002) 76 S.W.3d 573. Assault And Battery 91.2 Evidence that defendant pushed victim down, hit her several times with his closed fist, and stomped on her back was sufficient to support conviction of misdemeanor causing bodily injury to another, where variance between information and proof at trial resulting from inclusion in information of surplus language identifying victim as family member of defendant, was not material. Wilson v. State (App. 12 Dist. 2003) 113 S.W.3d 785. Assault And Battery 91.7 Evidence was sufficient to support conviction for aggravated assault; paramedic testified that victim stated she had been hit by defendant, victim had a contusion on her head and paramedic testified that a fist hitting a person's head could be capable of causing serious bodily injury, and victim told officer that defendant had struck her several times with a closed fist to back of her head and kicked her in the stomach and back. Lane v. State (App. 11 Dist. 2003) 111 S.W.3d 203, petition for discretionary review granted, affirmed 151 S.W.3d 188. Assault And Battery 91.7 Deputy constable's testimony supported conclusion that shackled and handcuffed juvenile kicked probation officer, even though the officer did not testify to that fact and the constable allegedly was behind car door, but the evidence failed to establish bodily injury and, therefore, failed to support adjudication for assault on public servant; the officer testified that he did not suffer any injuries during the struggle. In re M.C.L. (App. 3 Dist. 2003) 110 S.W.3d 591. Infants 176

Evidence was insufficient to show that juvenile intentionally placed victim in reasonable apprehension of imminent bodily injury when she approached him with baseball bat, as required to support conviction for aggravated assault; victim testified juvenile never got closer than within 15 feet of him, and thus, juvenile was never close enough to hit him, and he never felt threatened with imminent injury because of where juvenile was standing. In re S.B. (App. 2 Dist. 2003) 117 S.W.3d 443. Infants 176 Evidence was sufficient to support conclusion that defendant's hands, in manner of their use or intended use, were capable of causing victim serious bodily injury, as necessary to sustain conviction for aggravated assault; victim testified that defendant choked her several times during criminal episode, and that she started to black out, could not breathe, and thought that defendant was going to kill her, and peace officer testified that use of hands around person's neck to choke that person constituted use of deadly weapon. Vela v. State (App. 13 Dist. 2004) 159 S.W.3d 172, rehearing overruled, petition for discretionary review granted. Assault And Battery 91.6(2) Evidence was legally sufficient to support defendant's conviction for felony assault on a family member, his long-term girlfriend; officer observed girlfriend at the scene with a "bloody lip," with blood on her shirt, and with mud and grass on her clothing, girlfriend informed officer that defendant had pushed her down, grabbed her by the face holding her mouth shut, and dragged her through the mud, girlfriend testified that defendant had been previously convicted of assaulting her, defendant stipulated to the prior assault, and girlfriend testified that she and defendant had two children together. Carter v. State (App. 6 Dist. 2004) 150 S.W.3d 230. Assault And Battery 91.8 Legally sufficient evidence supported defendant's conviction for aggravated assault; victim testified defendant stabbed her four times with a knife, and officer testified that he examined the knife and that it was capable of causing serious bodily injury or death. Yarborough v. State (App. 6 Dist. 2005) 178 S.W.3d 895, petition for discretionary review refused. Assault And Battery 91.6(2) Evidence was legally and factually sufficient to support finding that defendant caused bodily injury to victim, as required to support assault-family violence conviction; photographs showed victim with two scrapes down her chest, right above her breasts, such photographs were taken by officer the same morning that the scrapes occurred as victim resisted defendant's efforts to force her into his vehicle by grabbing her arm, and victim told the jury she received the two scrapes when she tried to pull away from defendant. Gomez v. State (App. 12 Dist. 2005) 183 S.W.3d 86. Assault And Battery 91.8 Evidence was factually sufficient to support conviction for aggravated assault; tenant who resided in apartment directly below defendant and victim testified that he heard a struggle that lasted five to eight minutes, he repeatedly heard victim beg her assailant to stop, and he heard an angry male voice, emergency room doctor who treated victim testified that her injuries were consistent with being struck or hit multiple times in the head, and the victim's neurosurgeon, who performed emergency brain surgery on victim, testified that victim had severe brain swelling which was consistent with a severe impact to the brain. Denman v. State (App. 1 Dist. 2006) 193 S.W.3d 129, petition for discretionary review filed. Assault And Battery 92(1) Evidence was sufficient to support defendant's conviction for domestic assault despite contention that assault was justified by self-defense; police officer testified to, and the photographic evidence confirmed, victim's injuries, officer testified that victim told him that defendant had caused the injuries by striking

her, and officer further testified that he saw defendant after interviewing victim and that he could not remember seeing any markings on defendant that might evidence injuries caused by victim. Daisy v. State (App. 5 Dist. 2002) 2002 WL 31528723, Unreported, habeas corpus denied 2004 WL 3167743. Assault And Battery 91.8 Purported evidence that defendant's ex-husband viewed pornography on Internet was not relevant, in prosecution for assault with bodily injury arising from attack on ex-husband's girlfriend at his apartment, to show as basis for a "defense of others" defense that defendant had reasonable fear that girlfriend was dangerous to defendant's daughter, who was also at apartment on night of charged incident, where defendant's sole claim as to relevancy was that ex-husband met girlfriend on Internet and also viewed pornography on Internet. Wilhite v. State (App. 2 Dist. 2003) 2003 WL 21666691, Unreported. Assault And Battery 83(4) Evidence was factually sufficient to support conviction for assault with bodily injury, where defendant admitted that she struck victim with fist after victim told her she needed to leave her ex-husband's apartment, and ex-husband testified that after he dragged defendant from apartment, defendant was yelling, "How can you be with her? What happened to us? I thought we were happy." Wilhite v. State (App. 2 Dist. 2003) 2003 WL 21666691, Unreported. Assault And Battery 91.7 Police officer's testimony that defendant had choked victim by the neck until she urinated on herself, pictures showing bruising around victim's neck as well as a scratch behind her ear and a bruise on her chest, and evidence that defendant had fresh scratches on the inside of his wrists was legally sufficient to support assault conviction. Eck v. State (App. 1 Dist. 2004) 2004 WL 1171978, Unreported, petition for discretionary review refused. Assault And Battery 91.2 Evidence was legally and factually sufficient to support conviction for assault against a public servant; record indicated that defendant cursed officer and repeatedly hit him about the face and head after officer gave defendant traffic ticket and that officer suffered minor cuts and bruises in the struggle to subdue defendant, and officer testified that the blows were painful. Owens v. State (App. 12 Dist. 2004) 2004 WL 1416286, Unreported. Assault And Battery 91.10(1) Evidence was factually sufficient to support finding that defendant caused domestic violence victim physical pain, thus supporting conviction for felony assault with family violence; even though victim refused at trial to acknowledge the veracity of her abuse allegations, victim had told 911 operator that she was slapped, victim had told officer that defendant grabbed her by the hair and slapped her three or four times, and victim's written statement stated that the slap "hurt at the time." Fonseca v. State (App. 3 Dist. 2005) 2005 WL 3440730, Unreported. Assault And Battery 91.8 Evidence was legally sufficient to support convictions for aggravated assault; numerous witnesses testified that defendant drove an 18-wheeler that collided with car containing victims, that defendant was speeding and was weaving in and out of lanes of traffic, and that he was driving too closely or nearby another 18-wheeler that was also speeding and weaving lane to lane. Johnson v. State (App. 5 Dist. 2006) 2006 WL 349496, Unreported. Automobiles 355(14) 31.5. ---- Deadly weapon, sufficiency of evidence Evidence was sufficient to support finding that firearm defendant used and exhibited while threatening victim was a deadly weapon by design or per se, as

required to support aggravated assault conviction; victim identified the weapon as a black revolver, defendant admitted she hid a gun in the closet, search of closet revealed a .22 revolver, while defendant claimed that gun she used to threaten victim was a BB gun, victim testified that the revolver defendant used to threaten him did not appear to be a BB gun, and the .22 revolver was consistent with victim's description of the firearm. Tidwell v. State (App. 6 Dist. 2006) 187 S.W.3d 771, petition stricken. Assault And Battery 91.6(3) 32. ---- Law enforcement, sufficiency of evidence Evidence, that accused at point of pistol held complaining witness awaiting the arrival of officers, was insufficient to support a charge of assault by striking with the pistol. Arbetter v. State (Cr.App. 1916) 79 Tex.Crim. 487, 186 S.W. 769. Assault And Battery 80 Evidence that as plaintiff started toward car after going to apartment building to see friend who was not at home, employee of patrol company stopped him and asked for identification, frisked and handcuffed plaintiff's hands behind his back, took plaintiff before woman for possible identification, pulled pistol out and told plaintiff to get in car and shut up, shoved plaintiff onto floor of back seat of the employee's automobile and locked him inside the automobile for 15 or 20 minutes until police arrived, and that plaintiff suffered from loss of sleep so severe that he felt it caused him to lose his job sustained jury finding that the employee committed assault and battery on plaintiff and falsely imprisoned plaintiff causing compensative damage. Levine v. Enlow (Civ.App. 1970) 462 S.W.2d 50. Assault And Battery 35; False Imprisonment 31 In action in which customer sought to recover against retail store for false imprisonment and assault after store security agent arrested customer for destruction of private property, breach of the peace and interfering with lawful arrest, evidence that security guard grabbed customer by the arm while arresting him was sufficient to support finding that an assault was committed. Moore's, Inc. v. Garcia (Civ.App. 1980) 604 S.W.2d 261, ref. n.r.e.. Assault And Battery 35 Evidence was sufficient to sustain trial court's revocation of defendant's probation on ground that he had committed both assault and evading arrest in that, after defendant was stopped for traffic violation and police officer had informed defendant that he was under arrest, defendant turned and ran, and after being pursued, climbed wall and repeatedly kicked police officer in face and chest. Grim v. State (App. 13 Dist. 1983) 656 S.W.2d 542. Sentencing And Punishment 2021 Evidence was sufficient to support conviction of defendant for assaulting his spouse where police officer testified that he was dispatched to a family disturbance and shortly thereafter found defendant and his wife in the driveway arguing, where officer described wife's emotional state as very upset and noticed a cut above her eye and bruises on her leg and arm, where officer testified to wife's excited utterance at the scene that husband had hit her, and where there was physical evidence circumstantially linking defendant to assault of his wife. Tejeda v. State (App. 4 Dist. 1995) 905 S.W.2d 313, petition for discretionary review refused. Assault And Battery 91.8 Evidence in prosecution for assault on public servant was sufficient to show that police officer, who was outside his jurisdiction, was lawfully discharging an official duty by attempting to arrest defendant when defendant assaulted him, as officer, who was in uniform, was recognizable as public servant, and officer had probable cause to arrest defendant. Hoitt v. State (App. 6 Dist. 2000) 28 S.W.3d

162, petition for discretionary review granted, petition for discretionary review dismissed with per curiam opinion 65 S.W.3d 59, rehearing on petition for discretionary review denied. Assault And Battery 91.10(2) Legally sufficient evidence supported defendant's conviction as a repeat felony offender for assaulting a public servant; arresting officer testified to each of the elements of offense of assault of a public servant, since defendant struck uniformed officer while officer was in the process of detaining him in response to public-disturbance complaint, defendant's assault bruised officer and chipped his tooth, convenience store clerk corroborated officer's testimony, and defendant stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Gearhart v. State (App. 13 Dist. 2003) 122 S.W.3d 459, petition stricken, petition for discretionary review refused. Assault And Battery 91.10(1); Sentencing And Punishment 1381(2) There was sufficient evidence that person defendant injured was a police officer, so as to support conviction for assault on a public servant; evidence showed that victim and his partner were on duty, working patrol, and wearing uniforms when they were dispatched to a reported disturbance. Evans v. State (App. 14 Dist. 2002) 2002 WL 1822436, Unreported, petition for discretionary review refused. Assault And Battery 91.10(2) Evidence was legally and factually sufficient to support conviction for assault on a public servant; police officer testified that while struggling to arrest defendant, he suffered scrapes on his hands and arms as a result of being struck by defendant. Goodacre v. State (App. 12 Dist. 2002) 2002 WL 1902229, Unreported. Assault And Battery 91.10(1) Evidence was factually sufficient to support defendant's conviction for assault on a public servant; police officers were in uniform when they transported defendant from motel to jail, and officers testified that defendant intentionally headbutted and kicked one of the officers during transport. Adekanbi v. State (App. 5 Dist. 2002) 2002 WL 31688962, Unreported. Assault And Battery 91.10(1) 32.5. ---- Relationship to defendant, sufficiency of evidence Evidence that assault victim identified defendant as her common law husband and that defendant had prior family-assault conviction for assaulting same victim was factually sufficient to support conviction for assaulting family member, despite physician's statement based on notes that he "believed" that victim had referred to defendant as her "boyfriend." Hudson v. State (App. 14 Dist. 2005) 2005 WL 2149295, withdrawn and superseded 179 S.W.3d 731. Assault And Battery 92(2) 32.7. ---- Relationship to victim, sufficiency of evidence Evidence that victim told police officers that defendant was her common-law husband was factually sufficient to establish that defendant was member of victim's family, so as to support conviction for assault of family member, even though victim was intoxicated at time she spoke with police, and physician testified that he "believed" victim referred to defendant as her "boyfriend." Hudson v. State (App. 14 Dist. 2005) 179 S.W.3d 731. Assault And Battery 91.8 Victim's statements to police officers, telling them that defendant was responsible for the harm and that defendant was her common-law husband,

constituted legally sufficient evidence that victim and defendant were family members and supported conviction for assault of family member. Hudson v. State (App. 14 Dist. 2005) 179 S.W.3d 731. Assault And Battery 91.8 33. ---- Threatening conduct, sufficiency of evidence A verdict of guilty of simple assault is amply supported by evidence of an attempt to commit a battery with an open knife which was prevented only by the interference of bystanders. Yawn v. State (Cr.App. 1897) 37 Tex.Crim. 205, 39 S.W. 105. Assault And Battery 50 In a prosecution for assault, evidence that defendants ordered prosecuting witness to desist in working upon a public road, one having in his possession a large rock and the other a stick, and threatening him with injury if he failed, showed an offense. Haverbekken v. State (Cr.App. 1919) 86 Tex.Crim. 260, 216 S.W. 397. Assault And Battery 91.2 In probation revocation hearing, evidence was sufficient to show that defendant committed assault on one or more complaining witnesses by threatening to have his dog attack them. Garrett v. State (Cr.App. 1981) 619 S.W.2d 172. Sentencing And Punishment 2021 In proceeding to revoke probation based on allegation of assault, evidence was sufficient to sustain finding that defendant threatened victim with imminent body injury by actively trying to force his way into victim's car while exposing blade of knife, and that defendant tried to open the car door while "brandishing a knife in his hand," and thus evidence was sufficient to sustain finding of defendant's commission of an assault. Hillburn v. State (App. 7 Dist. 1982) 627 S.W.2d 546. Sentencing And Punishment 2021 Evidence that defendant pointed gun at police officer was sufficient to sustain conviction of using deadly weapon to assault officer; proof of verbal threats was unnecessary. Preston v. State (App. 5 Dist. 1984) 675 S.W.2d 598, petition for discretionary review refused, certiorari denied 106 S.Ct. 389, 474 U.S. 982, 88 L.Ed.2d 341. Assault And Battery 91.10(1) Act of pointing loaded gun at officer in pursuit is, by itself, threatening conduct which supports conviction for aggravated assault of police officer, and proof of verbal threats is unnecessary. Cantu v. State (App. 13 Dist. 1997) 953 S.W.2d 772, rehearing overruled, petition for discretionary review refused. Assault And Battery 54 Evidence was legally sufficient to support finding that defendant pointed a gun at police officer, in prosecution for aggravated assault with a deadly weapon upon a police officer; police officer testified that he saw defendant turn towards his partner with a gun in his hands, and that defendant was pointing the gun at police officer's partner. (Per Walker, C.J., with one justice concurring). Edwards v. State (App. 9 Dist. 2001) 57 S.W.3d 677, petition for discretionary review refused. Assault And Battery 91.10(1) Evidence did not support finding that hospital committed an assault by drawing defendant's blood following defendant's motorcycle accident without obtaining his consent, and thus statutory exclusionary rule did not require results of blood test to be suppressed for purposes of driving while intoxicated (DWI) prosecution; defendant made no attempt to argue or explain how the hospital knew or should have reasonably believed that he would have regarded the physical contact involved in

the drawing of blood as offensive or provocative, as no evidence existed that defendant indicated to any hospital personnel that he did not want his blood drawn. Mayfield v. State (App. 5 Dist. 2003) 124 S.W.3d 377, rehearing overruled, petition for discretionary review refused. Automobiles 411 Evidence was sufficient to show that defendant threatened victim with imminent bodily injury, as required for conviction for aggravated assault, even though victim did not testify; two eyewitnesses testified that defendant held gun in his hands and demanded money while walking in and out of bedroom where victim was located. Sosa v. State (App. 1 Dist. 2005) 177 S.W.3d 227. Assault And Battery 91.6(3) Evidence was sufficient to establish that victim understood defendant's statement to be imminent threat of harm so as to support burglary conviction; defendant left messages on victim's cell phone stating that he was going to beat her, he beat on her door, came into her apartment after he 'busted open' the door, snatched phone from her as she was attempting to call police, stated he was going to get knife, punched her, pushed her on couch, and choked her, and officer testified that when he arrived, he observed defendant with victim in choke hold and after defendant was arrested, victim was crying hysterically. Harris v. State (App. 14 Dist. 2005) 164 S.W.3d 775, petition for discretionary review refused. Burglary 41(1) Evidence was sufficient to show that defendant threatened security monitor at facility where defendant was committed as sexually violent predator with imminent bodily injury, as required to establish offense of assault, in violation of defendant's commitment requirements; defendant told security monitor that he would "kick [security monitor's] butt," and when defendant told security monitor to come into day room from porch because of "some unfinished business" and security monitor refused, defendant punched wall in room. Adams v. State (App. 3 Dist. 2005) 2005 WL 2978174. Mental Health 465(1) Evidence was factually sufficient to support aggravated assault conviction; evidence indicated that defendant threatened to shoot victim unless he left her property, victim was lawfully and properly on defendant's property when threat was made, defendant had in her possession a black revolver when she made threat, and even though defendant did not point the gun toward victim, victim testified that the threat placed him in fear of bodily harm and that he backed away for his own safety. Tidwell v. State (App. 6 Dist. 2006) 187 S.W.3d 771, petition stricken. Assault And Battery 91.6(3) Evidence was legally sufficient to support finding that defendant's threat to victim, which was that she would shoot him unless he left her property, caused a reasonable apprehension by victim of imminent bodily injury, as required to support aggravated assault conviction; defendant had in her possession a black revolver when she made threat, victim was lawfully and properly on victim's property when threat was made, and even though defendant did not point the gun toward victim, victim testified that the threat placed him in fear of bodily harm and that he backed away for his own safety. Tidwell v. State (App. 6 Dist. 2006) 187 S.W.3d 771, petition stricken. Assault And Battery 91.6(3) Evidence was legally sufficient to support defendant's conviction for aggravated assault; defendant was driving a car and became angry and agitated with victim, who was riding his bike and blocking her way, defendant followed behind victim for some period of time at an unsafe distance, making victim uncomfortable, and after victim came to a stop, defendant began screaming at him, accelerated her car, hit his rear tire, and knocked victim to the ground, and when victim fell, defendant's car pushed him and the bicycle along the street for a few feet, leaving a gouge in the concrete. Dolkart v. State (App. 5 Dist. 2006) 2006 WL 2062896. Automobiles

355(14) Evidence was sufficient to support finding that juvenile's violent attempts to resist restraint after making threatening movements and verbal threats were reckless, thus supporting delinquency adjudication for assault on a public servant; juvenile swore at his teachers and threatened to hurt them, juvenile bucked his torso violently and wrenched himself from teachers' grip when they tried to restrain him, and juvenile's actions caused injury to teacher's thumb and knee. In re J.L. O. (App. 3 Dist. 2002) 2002 WL 1804951, Unreported. Infants 153 Evidence was sufficient to support finding that education assistant was a public servant discharging a public duty when she attempted to assist teacher in restraining juvenile who made threatening motions after being asked to obey classroom rules, thus supporting delinquency adjudication for assault on a public servant; assistant was employed by school district, and assistant responded to juvenile's unruly and potentially threatening behavior by attempting to restrain him until he calmed down. In re J.L. O. (App. 3 Dist. 2002) 2002 WL 1804951, Unreported. Infants 153 Evidence was sufficient to support finding that defendant intentionally or knowingly threatened police officers with imminent bodily harm, as would support aggravated assault conviction; after squad car chased defendant who was driving a stolen vehicle, defendant backed into the car at a high rate of speed, knowing that officers were within. Davis v. State (App. 5 Dist. 2003) 2003 WL 367904, Unreported. Automobiles 355(14) Evidence was sufficient to support defendant's conviction for aggravated assault with a deadly weapon; despite defendant's claim of self-defense, that victim "came at" him with the knife and was accidentally cut when he managed to get the knife away from her, victim testified that defendant pushed his way into her apartment, tied up her hands and feet and cut "across her throat," and treating physician testified that victim suffered a "life-threatening" injury, and that the knife as used was a deadly weapon. Jefferson v. State (App. 5 Dist. 2006) 2006 WL 40780, Unreported. Assault And Battery 91.13(5) Evidence that defendant said he had something for the victims and that they didn't know what they were getting themselves into and then pointed a gun at them was sufficient to support conviction for aggravated assault. Wegner v. State (App. 1 Dist. 2006) 2006 WL 727707, Unreported. Assault And Battery 92(3) 33.5. ---- Public servant, sufficiency of evidence Evidence including testimony of victim's co-workers at psychiatric unit of Department of Criminal Justice, Institutional Division (TDCJ) was factually sufficient to support finding that victim was a public servant, as required to support conviction for assault on a public servant; there was no contradictory evidence in the record. Buster v. State (App. 12 Dist. 2004) 144 S.W.3d 71, rehearing overruled. Assault And Battery 91.10(2) Evidence was legally sufficient to support finding that victim was a public servant, as required to support conviction for assault on a public servant; record showed that victim was a mental health liaison who was employed by university medical center with the official duty of interviewing inmates at her assignment in psychiatric unit of Department of Criminal Justice, Institutional Division (TDCJ), witness testified that witness worked at same unit and that she and victim worked in same office, another witness testified that he found victim in the unit, and

defendant admitted going to the "psych" unit to request a transfer. Buster v. State (App. 12 Dist. 2004) 144 S.W.3d 71, rehearing overruled. Assault And Battery 91.10(2) Evidence was sufficient to establish that defendant knew that individual was peace officer as required to support conviction for aggravated assault on a public servant; deputies were wearing their uniforms and badges when they knocked on defendant's door, identified themselves as law enforcement officers, and entered house when the door was opened, and prior to aggravated assault, deputies also explained to defendant that they were there to arrest him on warrant. Dunklin v. State (App. 12 Dist. 2006) 2006 WL 1119304. Assault And Battery 92(2) 34. Instructions--In general One was not entitled to a charge on simple assault, in that he only used his hands and feet, where he helped one who was using a knife. Cukierski v. State (Cr.App. 1913) 68 Tex.Crim. 367, 153 S.W. 313. Assault And Battery 96(1) Court's charge on assault should only submit whether defendant was guilty of assault in manner and by means set forth in indictment or information. Martin v. State (Cr.App. 1930) 115 Tex.Crim. 618, 28 S.W.2d 140. Assault And Battery 96(1) Since defendant testified that he deliberately struck injured party with beer bottle, he was not entitled to a charge on this section relating to the causing of physical contact when one knows or reasonably should believe that the other will regard contact as offensive and provocative. Eanes v. State (Cr.App. 1977) 546 S.W.2d 312. Assault And Battery 96(1) Evidence did not warrant instruction on misdemeanor assault by intentionally causing physical contact with another knowing other person will find it offensive or provocative, as lesser included offense of sexual assault; defense that sex was consensual precluded jury finding defendant not guilty of sexual assault, but guilty of assault. Pitre v. State (App. 11 Dist. 2001) 44 S.W.3d 616, petition for discretionary review refused. Criminal Law 795(2.80) Jury instruction containing statement that a mental health liaison was a public servant did not deprive defendant of the right to a finding beyond reasonable doubt on all elements of offense of assault on a public servant; statement was a correct statement of law under facts of case, and State was still required to prove that victim was a mental health liaison. Buster v. State (App. 12 Dist. 2004) 144 S.W.3d 71, rehearing overruled. Assault And Battery 48; Assault And Battery 96(1) Issue of propriety of trial court's denial of defendant's requested jury instruction on consent as a defense to charge of misdemeanor assault with respect to biting allegation was not moot on appeal, even though defendant was charged with two methods of committing the assault, that being biting and hitting, and State was only required to prove one method to obtain a conviction. Bufkin v. State (App. 14 Dist. 2005) 179 S.W.3d 166, petition for discretionary review granted. Criminal Law 1134(3) Erroneous instruction in aggravated assault prosecution that failed to require juror unanimity on whether defendant was guilty based on finding that defendant had committed aggravated bodily injury assault or aggravated assault by threat, as such constituted two different statutory offenses rather than two methods of committing single offense of aggravated assault, did not deny defendant a fair and

impartial trial; while trial began and ended with prosecutor telling jurors that they did not have to agree as to whether defendant was guilty of aggravated bodily injury assault or aggravated assault by threat, to find defendant guilty of aggravated assault under either theory of the offense a juror had to find defendant guilty under both theories. Marinos v. State (App. 3 Dist. 2006) 186 S.W.3d 167, rehearing overruled, petition for discretionary review filed. Criminal Law 798(0.7) 35. ---- Lesser included offense, instructions Defendant's testimony that he neither assaulted police officer nor resisted arrest did not warrant instruction on the lesser-included offense of resisting arrest, in prosecution for assault on a public servant. Lofton v. State (Cr.App. 2001) 45 S.W.3d 649. Criminal Law 795(2.30) Defendant was not entitled to instruction on the lesser-included offense of resisting arrest, in prosecution for assault on a public servant, even if defendant had intended only to prevent his arrest, where the force used by defendant to prevent his arrest recklessly, if not intentionally, caused police officer to suffer bodily injury. Lofton v. State (Cr.App. 2001) 45 S.W.3d 649. Criminal Law 795(2.30) Defendant, in murder prosecution, was not entitled to jury instruction on lesserincluded offense of aggravated assault; evidence showed defendant intentionally caused serious bodily injury and committed an act clearly dangerous to human life that caused victim's death. Salazar v. State (App. 4 Dist. 2002) 87 S.W.3d 680. Assault And Battery 96(1) Trial court's failure to include jury instruction on assault as lesser-included offense in murder prosecution was reversible error; record revealed that jury deliberated for more than a day and had difficult time reaching a unanimous verdict, and thus, defendant was harmed since divided jury was not allowed to consider lesser-included offense of assault in connection with charge of murder. Hayward v. State (App. 14 Dist. 2003) 117 S.W.3d 5, rehearing overruled, petition for discretionary review granted, reversed 158 S.W.3d 476, on remand 2006 WL 162582. Criminal Law 1173.2(4) Defendant was entitled to jury instruction on assault as lesser-included offense in murder prosecution, where evidence was presented that would allow jury to rationally find that, if defendant was guilty, she was guilty of only assault; defendant's contention that three people, in addition to victim, were present was arguably corroborated by neighbor's testimony that after she heard two people exit apartment, she heard loud noise as if someone was in apartment searching for something, and absence of marks on defendant's body arguably supported defendant's position that she did not stab victim. Hayward v. State (App. 14 Dist. 2003) 117 S.W.3d 5, rehearing overruled, petition for discretionary review granted, reversed 158 S.W.3d 476, on remand 2006 WL 162582. Assault And Battery 96(1) Defendant was not entitled to instruction on assault as a lesser-included offense of murder; defendant claimed that she had wrestled with victim and had hit him with her fists, and hitting with fists could be a lesser-included offense of murder, but not as the murder had been charged, given that, whether defendant had assaulted victim with her fists was not an issue that was included in indictment, i.e., under indictment at issue, state could not have secured a valid conviction for assault that defendant alleged she committed. Hayward v. State (Cr.App. 2005) 158 S.W.3d 476, on remand 2006 WL 162582. Criminal Law 795(2.50)

Error in trial court's failure to give jury instruction on reckless driving as lesser-included offense of aggravated assault on a public servant was harmless; jury was instructed on aggravated assault and lesser-included offense of deadly conduct, which required recklessness, jury was thus confronted with whether defendant engaged in intentional or knowing conduct versus reckless conduct, and because jury found defendant guilty of aggravated assault, and thus that he engaged in intentional or knowing conduct, jury never reached lesser offense of deadly conduct and would not have reached lesser offense of reckless driving. Brown v. State (App. 1 Dist. 2005) 183 S.W.3d 728, rehearing overruled, petition for discretionary review refused. Criminal Law 1173.2(4) At least a scintilla of evidence suggested that defendant committed reckless driving, as required for defendant to be entitled to jury instruction on reckless driving as lesser-included offense of aggravated assault on a public servant; defendant drove toward police officer in parking lot, second officer fired shot that struck windshield of defendant's vehicle, second and third officers testified that defendant's driving was at least reckless, and third officer testified that, after gunshot struck vehicle, defendant leaned to right and sped off and did not testify that gunshot caused vehicle to swerve in any direction, suggesting that defendant drove straight toward exit of parking lot. Brown v. State (App. 1 Dist. 2005) 183 S.W.3d 728, rehearing overruled, petition for discretionary review refused. Criminal Law 795(2.1) Defendant was not entitled to jury instruction on Class A misdemeanor assault as lesser-included offense of attempted sexual assault; defendant offered no evidence to refute clear showing that he intended to commit sexual assault, in that he approached victim in deserted parking lot, rubbed himself against her, masturbated, ignored her entreaty to back off, unzipped her dress, grabbed her breast, and, after she pushed him away, returned to shove his tongue into her mouth, and although defendant eventually struck victim and caused her bodily injury, he did so only after she resisted his efforts to sexually assault her. Alexander v. State (App. 5 Dist. 2006) 2006 WL 14269, Unreported, petition stricken, petition for discretionary review refused. Assault And Battery 96(1) Evidence supported either that defendant acted intentionally in threatening the victims in prosecution for aggravated assault or that defendant did not commit an offense at all, thus instruction on lesser-included offense of deadly conduct was not warranted; victims testified that defendant pointed a shotgun at them and threatened them and defendant testified he did not point the gun at them or say anything to them. Wegner v. State (App. 1 Dist. 2006) 2006 WL 727707, Unreported. Assault And Battery 96(1) 35.5. ---- Consent, instructions Error in trial court's refusal to give jury instruction on consent as a defense to charge of misdemeanor assault with respect to biting allegation was not harmless, where jury was allowed to find defendant guilty based on hitting victim or biting her, and appellate court could not tell whether jury convicted defendant based on the biting or the hitting allegations. Bufkin v. State (App. 14 Dist. 2005) 179 S.W.3d 166, petition for discretionary review granted. Criminal Law 1172.1(4) Defendant was entitled to jury instruction on consent as a defense to charge of misdemeanor assault with respect to biting allegation; alleged victim testified that bite marks were result of consensual sexual activity that occurred night before alleged assault, and jury was allowed to find defendant guilty based on

hitting victim or biting her, so it was possible that jury found defendant guilty based solely on biting. Bufkin v. State (App. 14 Dist. 2005) 179 S.W.3d 166, petition for discretionary review granted. Assault And Battery 96(1) 35.7. ---- Separate offenses, instructions Defendant, who did not object to charge, suffered egregious harm as result of erroneous jury charge in which the state told the jury that it did not have to agree whether defendant committed assault by threat or bodily injury assault; the evidence was contested, and some jurors could have believed defendant and determined that she did not intend to threaten or injure victim, but concluded that her conduct in driving so close to victim was reckless and resulted in his injury. Dolkart v. State (App. 5 Dist. 2006) 2006 WL 2062896. Criminal Law 1038.1(3.1) 36. ---- Mens rea, instructions Rule that trial court's refusal to limit definitions of culpable mental states to aspect relating to result of conduct had little or no application to prosecution for assault with bodily injury; jury charge would not have misled anyone into believing that defendant could be convicted if he intentionally or knowingly engaged in conduct without intending result. Schumacher v. State (App. 3 Dist. 1991) 814 S.W.2d 871. Assault And Battery 96(1) Jury charge incorporating "nature of conduct" language into definitions of "intentionally" and "knowingly" was harmless error, even though charged offense, assault with bodily injury, was "result" offense rather than "nature of conduct" offense, where erroneous definition was limited by application paragraph of charge so that jury could not have convicted accused without finding he intended result or knew what result would be, evidence provided strong inference that accused did intend to cause bodily injury, and both prosecutor and defense counsel stated in their summations that defendant must intend the result to be found guilty. Fuller v. State (App. 3 Dist. 1991) 819 S.W.2d 254, petition for discretionary review refused. Criminal Law 1172.1(3) In harmless error analysis, the Court of Appeals reviews the record for actual, not just theoretical, harm to the accused. Mendenhall v. State (App. 10 Dist. 2000) 15 S.W.3d 560, rehearing overruled, petition for discretionary review granted, affirmed 77 S.W.3d 815. Criminal Law 1165(1) Jury charge in assault against public servant, which incorporated second type of assault against a public servant, was improper, where indictment only charged defendant with one type of assault against public servant. Sherman v. State (App. 6 Dist. 2000) 20 S.W.3d 96. Criminal Law 814(20) 37. ---- Bodily injury, instructions Where the evidence showed beyond doubt that serious bodily injury was inflicted, the court properly refused to charge on simple assault. Solis v. State (Cr.App. 1915) 76 Tex.Crim. 230, 174 S.W. 343. Where defendant testified that the shooting was done with no intent to kill but

only to scare the injured party and another person he believed to be in the house, and that before and after the shooting he had ample opportunity to kill the injured party had he so desired and the evidence failed to show that the discharge of the gun by the defendant inflicted any serious bodily injury on the injured party, the jury should have been instructed on the issue of simple assault as it was raised by the evidence. Brown v. State (Cr.App. 1950) 155 Tex.Crim. 233, 233 S.W.2d 578. Assault And Battery 96(1) Where evidence showed that employee struck supervisor in face with iron bar when informed that he had been fired, charge on simple assault was not required. Watson v. State (Cr.App. 1965) 386 S.W.2d 803. Assault And Battery 96(1) Defendant who was shown to have been with a group of boys driving around in attempt to find the person stabbing defendant's friend and who shot into crowd, fatally wounding a person, after driver backed vehicle to where the crowd stood, was not entitled to simple assault instruction. Smith v. State (Cr.App. 1967) 418 S.W.2d 683. Assault And Battery 96(1) In proceeding in which defendant was convicted of murder, refusal to give charge on assault was proper, in light of fact that victim had died from the injuries inflicted on him. DeRusse v. State (Cr.App. 1979) 579 S.W.2d 224. Assault And Battery 96(1) Application paragraph of jury charge in trial for assault with bodily injury correctly stated requisite mental state, where it required that jury find beyond reasonable doubt that defendant intentionally, knowingly, or recklessly caused bodily injury to victim by pushing her, and thus fact that definitions in charge permitted conviction of defendant for simply intentionally or knowingly pushing victim was not harmful. Zuliani v. State (App. 3 Dist. 2001) 52 S.W.3d 825, petition for discretionary review granted, reversed 97 S.W.3d 589, on remand 2003 WL 21023105. Assault And Battery 96(1); Criminal Law 1172.1(3) 38. ---- Aggravated and simple assault, instructions In prosecution for aggravated assault, evidence that as prosecuting witness was returning to her home defendant stepped out of some grass and weeds and grabbed her by the arm, and that prosecuting witness struck defendant with her umbrella, started screaming and ran away from him required submission to jury of issue of simple assault. Hennington v. State (Cr.App. 1941) 141 Tex.Crim. 449, 149 S.W.2d 587. Assault And Battery 96(1) Court is not required to give charge on simple assault unless there is some doubt that greater offense of aggravated assault has been committed. Watson v. State (Cr.App. 1965) 386 S.W.2d 803. Assault And Battery 96(1) Defendant who was convicted of aggravated assault was not entitled to charge on simple assault where physician testified that weapon was capable of causing death and could be a deadly weapon through the manner of its use, where he further testified that stab wound was six inches long, penetrated through cartilage of rib cage, and required approximately 30 stitches to close, and where defendant offered no evidence that knife was not used in such manner as to render it a deadly weapon. McElroy v. State (Cr.App. 1975) 528 S.W.2d 831. Assault And Battery 96(1) In proceeding in which defendant was convicted of injury of a child, refusal to charge on lesser included offense of assault was proper, in light of fact that it was established that the child was two and one-half years old at time of the

offense and that an assault was aggravated if committed on a child less than 14 years old. Skelton v. State (App. 6 Dist. 1981) 626 S.W.2d 589. Assault And Battery 96(7) In prosecution for aggravated assault, trial court did not err in submitting to jury issue of lesser included offense of simple assault which omitted culpable mental state of recklessness from charge where particular theory of reckless assault was not raised by evidence consisting of defendant's testimony that slapping victim was only playful gesture. Sanford v. State (Cr.App. 1982) 634 S.W.2d 850. Assault And Battery 96(1) There was no proof of either simple assault or reckless conduct, as required for instruction thereon, as lesser included offense of aggravated assault on a police officer, where State made proof that peace officer was stabbed with a knife by defendant and defendant denied any assault whatsoever on the officer and denied having a knife. Redmon v. State (App. 9 Dist. 1988) 748 S.W.2d 531. Criminal Law 814(20) Juvenile court did not err in refusing to instruct jury on simple assault as lesser included offense of aggravated robbery where there was no evidence in record that, if juvenile was guilty of injuring robbery victim, he was guilty of inflicting only bodily injury and not serious bodily injury; victim died of subdural hemorrhage in brain after juvenile and his companions "jumped" him and kicked him in the head. Matter of S.D.W. (App. 1 Dist. 1991) 811 S.W.2d 739. Infants 203 Evidence in aggravated assault prosecution would not support jury instruction on lesser-included offense of assault, despite claim that box-cutter with which defendant cut complainant was not deadly weapon per se; defendant's girlfriend testified that defendant threw her to ground, held razor-edged box-cutter to her throat and threatened to cut it, she and another witness testified that complainant bled profusely after he was stabbed, doctor who treated complainant testified that laceration on left side of his chest was clean cut wound caused by sharp object, that stabbing wound was close to spleen and base of lung, and that stabbing wound could have created substantial risk of serious bodily injury, and there was no evidence that injury was merely bodily injury instead of serious bodily injury. Garcia v. State (App. 1 Dist. 1999) 17 S.W.3d 1, petition for discretionary review refused. Assault And Battery 96(1) Error in charging jury on assault on family member without providing statutory definitions of consanguinity and affinity did not result in egregious harm that could result in reversal even though defendant did not object to charge; jury heard evidence that defendant was victim's common-law husband, and it was commonly understood that one's spouse was a member of one's family. Hudson v. State (App. 14 Dist. 2005) 179 S.W.3d 731. Criminal Law 1038.1(6) Elements of reckless driving were included in facts required to establish aggravated assault on a public servant as charged in indictment, as required for defendant to be entitled to jury instruction on reckless driving as lesserincluded offense; the state attempted to establish that defendant used his vehicle as deadly weapon in manner that he drove it, thus meeting "driving" element of reckless driving, and defendant would have acted with deliberate and conscious indifference to victim's safety by intentionally and knowingly threatening him with imminent bodily injury, thus meeting "reckless" element of reckless driving. Brown v. State (App. 1 Dist. 2005) 183 S.W.3d 728, rehearing overruled, petition for discretionary review refused. Indictment And Information 191(.5) Charge instructing jury to find defendant guilty of aggravated assault if

defendant unlawfully, intentionally or knowingly threatened victim or if defendant intentionally, knowingly or recklessly caused bodily injury to victim was erroneous because assault by threat and assault by injury were different statutory offenses and charge allowed the jury to convict defendant without requiring the jury to unanimously agree on whether defendant committed aggravated bodily injury assault or aggravated assault by threat. Const. art. Dolkart v. State (App. 5 Dist. 2006) 2006 WL 2062896. Criminal Law 798(0.6) 38.5. ---- Relationship of parties, instructions Error in charging jury on assault on family member without providing statutory definitions of consanguinity and affinity did not result in egregious harm that could result in reversal even though defendant did not object to charge, since jury heard evidence that defendant was victim's common law husband and that defendant had prior family-member assault conviction involving same victim; reasonable juror could have concluded that victim was defendant's family member. Hudson v. State (App. 14 Dist. 2005) 2005 WL 2149295, withdrawn and superseded 179 S.W.3d 731. Criminal Law 1038.1(6) Jury charge on assault of a family member should have contained the statutory definitions for consanguinity and affinity. Hudson v. State (App. 14 Dist. 2005) 2005 WL 2149295, withdrawn and superseded 179 S.W.3d 731. Criminal Law 772(2) 39. ---- Misdemeanor assault, instructions Defendant was entitled to instruction on misdemeanor assault, as lesser-included offense to aggravated assault, though victim fell, hit his head on floor, and died after defendant hit him in head with beer bottle, where defense expert testified that victim did not suffer serious bodily injury when struck with beer bottle and that beer bottle was not capable of causing significant or lethal head injury in manner it was used, and defendant testified that he did not intend to kill victim or cause him serious injury but only wanted him to get away. Ferrel v. State (App. 14 Dist. 2000) 16 S.W.3d 861, petition for discretionary review granted, reversed 55 S.W.3d 586, on remand 2002 WL 480594. Assault And Battery 96(1) Defendant's actions caused serious injury, and thus jury instruction on lesserincluded offense of misdemeanor assault was not warranted on aggravated assault charge arising from bar altercation in which defendant hit victim in mouth with full beer bottle and victim fell straight back, hit his head on floor, and died at scene; defendant's expert conceded that victim suffered serious bodily injury simply from impact by bottle, and evidence reflected that victim would not have died but for blow from beer bottle causing him to fall back and hit his head. Ferrel v. State (Cr.App. 2001) 55 S.W.3d 586, on remand 2002 WL 480594. Assault And Battery 96(1) 40. ---- Resisting arrest, instructions Evidence could rationally be interpreted to support either mental state necessary for assault on public servant or mental state necessary for resisting arrest, and thus defendant was entitled in assault trial to have jury charged on lesser offense of resisting arrest, where officer testified that he pinned defendant up against door jamb and was trying to grab him when defendant pushed himself away,

that defendant struck officer in face, and that, as officer was going back, he tried to regrab defendant and defendant struck officer again and knocked his glasses off. Lofton v. State (App. 3 Dist. 1999) 6 S.W.3d 796, petition for discretionary review granted, reversed 45 S.W.3d 649. Criminal Law 795(2.30) Failure of district court, in prosecution for assault on public servant, to submit defendant's requested written jury charge on lesser offense of resisting arrest constituted reversible error, where evidence was sufficient to raise issue of resisting arrest notwithstanding evidence which supported proof of greater offense of assault. Lofton v. State (App. 3 Dist. 1999) 6 S.W.3d 796, petition for discretionary review granted, reversed 45 S.W.3d 649. Criminal Law 1173.2(4) 41. ---- Robbery, instructions In prosecution for robbery, where the testimony of the injured party showed a robbery by assault and the defendant by his testimony denied having committed any assault upon the injured party, the issue of simple assault was not raised, and there was no error in the court's refusal to charge the jury on simple assault. Curtis v. State (Cr.App. 1959) 167 Tex.Crim. 536, 321 S.W.2d 587. Assault And Battery 96(1) While simple assault is a lesser included offense within a charge of robbery, there must be some evidence raising the issue before a charge thereon is required. Curtis v. State (Cr.App. 1959) 167 Tex.Crim. 536, 321 S.W.2d 587. Assault And Battery 96(1) 42. ---- Self-defense, instructions See, also, Notes of Decisions under � 9.31. In homicide prosecution, refusal to instruct, in connection with self-defense, that relative size and strength of deceased and defendant were to be considered, was not error, where instructions given accorded defendant the right to defend himself against any unlawful attack, regardless of its character. Johnson v. State (Cr.App. 1940) 140 Tex.Crim. 145, 143 S.W.2d 771. Criminal Law 829(5) In prosecution for assault and battery, instruction on self-defense was not objectionable as making defendant's right to defend himself against violence dependent upon jury's standpoint rather than defendant's standpoint as to degree of violence, if any, necessary to effect defendant's defense. Garcia v. State (Cr.App. 1960) 169 Tex.Crim. 138, 332 S.W.2d 734. Assault And Battery 96(3) Evidence including testimony that as defendant was being forced into sheriff's automobile he placed his hand over defendant's face and put fingers into her mouth and that she bit in self-defense entitled defendant to self-defense instruction. Banker v. State (Cr.App. 1967) 413 S.W.2d 393. Assault And Battery 96(3) Automobile driver's testimony as to events preceding defendant's assault upon police officer required instruction as to defendant's right to use such force as was reasonably necessary to defend his person from unlawful attack or to extricate himself from unlawful detention, and failure to submit issue was reversible error. Randall v. State (Cr.App. 1969) 447 S.W.2d 912. Assault And Battery 96(3); Criminal Law 1173.2(3)

In prosecution for assault, defendant's testimony that he had to strike or push complainant to keep her from wrecking the vehicle which he was driving was sufficient to raise defense of necessity, and trial court erred in not instructing jury on necessity. Williams v. State (Cr.App. 1982) 630 S.W.2d 640. Assault And Battery 96(2) Insufficient evidence existed to raise issue of self-defense so as to warrant instruction on self-defense in defendant's trial for misdemeanor assault for hitting former girlfriend with motorcycle and dragging her, even though defendant testified that he wanted to leave, that former girlfriend was blocking him, and he took opportunity to leave when she moved, and that former girlfriend had slapped him, where there was no evidence that defendant ran over former girlfriend in order to protect himself, there was no evidence that he was in fear of bodily harm, and defendant was unaware that former girlfriend had been injured until later that night when former girlfriend's son called defendant. Clifton v. State (App. 2 Dist. 2000) 21 S.W.3d 906, rehearing overruled, petition for discretionary review refused. Automobiles 347; Automobiles 357(14); Automobiles 357(14); Automobiles 357(14) Jury instruction in civil assault case, asking whether jury believed an assault was committed, was improper, where, as worded, instruction failed to instruct the jury that they were to find that no assault had been committed if they believed an assault was committed but that it was committed in self-defense or was justified. Gibbins v. Berlin (App. 2 Dist. 2005) 162 S.W.3d 335. Assault And Battery 43(2) Defendant was not entitled to instruction on self defense in prosecution for aggravated assault, where defendant admitted only that he got out of his truck while holding a shotgun and denied that he had committed the conduct, threatening another with imminent bodily injury, giving rise to the offense. Wegner v. State (App. 1 Dist. 2006) 2006 WL 727707, Unreported. Assault And Battery 96(3) 42.5. Member of household Evidence was legally sufficient to support finding that assault victim was a member of defendant's household; in weeks preceding assault, victim lived with defendant and his mother at mother's house, and did not have access to other apartment where she had lived. Manning v. State (App. 14 Dist. 2003) 112 S.W.3d 740, petition for discretionary review refused. Assault And Battery 48 Variance between allegation in information charging defendant with causing bodily injury to another, that victim was member of defendant's family, and proof at trial that victim was not member of defendant's family was not material; needless allegation did not mislead defendant, defendant's defense, namely defense of another, did not depend on whether or not victim was family member, and there was no risk of defendant being prosecuted again for same assault on same victim. Wilson v. State (App. 12 Dist. 2003) 113 S.W.3d 785. Assault And Battery 80 43. Findings Statute requiring court to make an affirmative finding of family violence in the judgment of conviction for assault offense involving family violence was intended to simplify prosecution of subsequent family assault cases by making it unnecessary to relitigate details of previous assault in subsequent prosecution, rather, state may rely on affirmative finding in prior judgment to prove that

victim of defendant's previous assault was a family member. State v. Eakins (App. 3 Dist. 2002) 71 S.W.3d 443. Assault And Battery 83(1) Although better practice would have been for trial court to make and enter required family violence finding in the judgment for previous conviction of assault involving family violence, in absence of such state could enter extrinsic evidence of defendant's previous conviction involving family violence in subsequent prosecution for assault of a family member. State v. Eakins (App. 3 Dist. 2002) 71 S.W.3d 443. Assault And Battery 83(1) Trial court's entry of affirmative finding, in absence of finding by jury, that defendant committed family violence in course of committing assault, did not violate defendant's Sixth Amendment rights, where family violence finding had no effect on defendant's punishment. Henderson v. State (App. 3 Dist. 2006) 2006 WL 952374, petition for discretionary review filed. Jury 34(1) 43.5. Effective assistance of counsel Prosecutor's statement at voir dire that defendant may be guilty of aggravated assault by threatening victim with imminent bodily harm with knife without actually stabbing or cutting her and that the two ways to prove offense were by threatening and by actually stabbing or cutting was accurate statement of law, even though prosecutor was not accurately stating the two means of committing aggravated assault; prosecutor was stating that two means by which assault, which was essential element of aggravated assault, could be committed were by causing bodily injury or by intentionally or knowingly threatening another with imminent bodily injury. Flowers v. State (App. 9 Dist. 2004) 133 S.W.3d 853. Criminal Law 717 Defense counsel's failure to collect additional evidence, his alleged lack of a firm command of the facts of the case, and his failure to request a jury instruction on the lesser included offense of misdemeanor assault did not prejudice defendant, and thus could not amount to ineffective assistance, in prosecution for assault on a public servant; defendant offered no explanation for counsel's alleged failure to collect additional evidence, he failed to explain the manner in which counsel allegedly lacked a firm command of the facts, and defendant never disputed that the victim was a public servant. Adekanbi v. State (App. 5 Dist. 2002) 2002 WL 31688962, Unreported. Criminal Law 641.13(2.1); Criminal Law 641.13(6) 44. Sentence and punishment Trial court's order, granting defendant's plea in bar and suppressing evidence that victim in previous assault conviction was a family member, was appealable in present case against defendant, who was indicted on charges of assault on a household member; order effectively negated enhancement paragraph of the current indictment, and thus the felony indictment itself, as the charged offense would be a misdemeanor without the enhancement. State v. Cagle (App. 14 Dist. 2002) 77 S.W.3d 344, petition for discretionary review refused. Criminal Law 1024(1) A prior assault on a family or household member is a sentence enhancement at a trial for assault on a family or household member, rather than an element of the offense; the operative statutory language is prefaced with the phrase, "if it is shown on the trial of the offense." State v. Cagle (App. 14 Dist. 2002) 77 S.W.3d

344, petition for discretionary review refused. Assault And Battery Sentencing And Punishment 94

48;

Defendant's prior assault conviction amounted to conviction of family violence assault, for purposes of enhancement of his sentence on subsequent conviction of felony family violence assault, despite lack of affirmative finding in prior judgment of conviction that offense involved family violence, where extrinsic evidence established that prior offense was committed against woman with whom he was cohabiting at time of assault. Mitchell v. State (App. 3 Dist. 2003) 102 S.W.3d 772, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Sentencing And Punishment 323 Victim's testimony regarding defendant's prior assault conviction was sufficient to support finding that she had been member of defendant's household at time defendant assaulted her, for purposes of enhancement of defendant's sentence for instant conviction of felony family violence; victim, who had been cohabiting with defendant at time of prior assault and was married to him at time of instant assault, was obviously reluctant witness for the state, but her somewhat ambiguous testimony was not so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in jury's determination. Mitchell v. State (App. 3 Dist. 2003) 102 S.W.3d 772, rehearing overruled, petition for discretionary review refused, rehearing on petition for discretionary review denied. Sentencing And Punishment 323 Using defendant's successfully completed deferred adjudication to enhance punishment for a later family violence offense violated the prohibition against ex post facto laws; provision permitting such enhancement did not exist at the time adjudication was deferred. Munoz v. State (App. 8 Dist. 2004) 133 S.W.3d 836. Constitutional Law 203; Sentencing And Punishment 16 Family violence finding could not increase defendant's sentence such that jury rather than trial court was required to make the finding, in prosecution of defendant for assault; finding would have impacted defendant's sentence only if he had previously committed a family-violence assault, State did not attempt to prove that defendant had previously been convicted of an assault involving family violence, and additional requirements that defendant was ordered to perform, such as attending a batterer's intervention program, only were conditions of probation, and trial court could impose any reasonable condition on probation. Butler v. State (App. 2 Dist. 2005) 162 S.W.3d 727, petition for discretionary review granted, affirmed 189 S.W.3d 299. Jury 34(7) Sentence of 60 years' imprisonment for assault on a public servant was not grossly disproportionate in violation of Eighth Amendment prohibition against cruel and unusual punishment; sentence was within range of punishment, evidence was presented regarding defendant's previous violent felonies, and jury found both enhancement paragraphs for felony convictions in state to be true. Buster v. State (App. 12 Dist. 2004) 144 S.W.3d 71, rehearing overruled. Sentencing And Punishment 1485 Defendant's successful completion of community supervision in lieu of incarceration for assault of family member did not erase conviction for that offense, and thus, application of amended enhancement statute to allow use of prior conviction to enhance subsequent convictions for assault of family member, which statute did not exist at time defendant was placed on community supervision, did not constitute ex post facto law. Comeaux v. State (App. 9 Dist. 2004) 151 S.W.3d 710. Constitutional Law 203; Sentencing And Punishment 17(1)

Whether jury's affirmative finding of family violence, by a preponderance of the evidence, in prosecution for misdemeanor assault would sustain an increased penalty in a future prosecution of defendant was not ripe for appellate review. Word v. State (Cr.App. 2006) 2006 WL 1639115. Criminal Law 1134(3) 45. Review Issue of whether, to elevate a second family assault offense to a felony, a prior assault conviction must affirmatively reflect on the judgment that it was committed against a family or household member, and questions as to the sufficiency of a prior judgment as evidence to prove the enhancement fact and/or the relevance of extrinsic evidence of a family/household relationship of a prior victim, depending on whether the prior judgment must reflect a family violence finding, were not presented to, or decided by, the trial court, and thus were not properly before the Court of Appeals for review. State v. Cagle (App. 14 Dist. 2002) 77 S.W.3d 344, petition for discretionary review refused. Criminal Law 1042 Trial court's pre-trial rulings did not contain error in prosecution for assaulting a public servant, where record reflected that court did not make any ruling adverse to defendant; record reflected that court heard defendant's discovery motion regarding production of videotape from arresting officer's squad car and any audiotape of emergency call made by convenience store clerk, state responded that it had no such evidence in its custody or control, and court ruled it would permit defendant to subpoena any relevant videotapes or audiotapes for trial. Gearhart v. State (App. 13 Dist. 2003) 122 S.W.3d 459, petition stricken, petition for discretionary review refused. Criminal Law 627.6(3) Defendant's "in pari materia" claim in prosecution for felony aggravated assault relating to alleged hazing incident as part of victim's initiation into college fraternity, that defendant had due process right to be prosecuted under hazing statute because it was special statute that irreconcilably conflicted with assault statute, was not cognizable in application for pretrial writ of habeas corpus, because claim was not ripe for review; State had not had opportunity to develop complete factual record during trial, and it was apparent that State had more evidence to present, about which reviewing court could only speculate. Ex parte Smith (Cr.App. 2006) 185 S.W.3d 887, rehearing denied. Habeas Corpus 275.1 Defendant's contention that trial court's entry of affirmative finding that defendant committed family violence in course of committing assault violated defendant's Sixth Amendment rights was preserved for appellate review where, before sentence was imposed, defendant objected to trial court's stated intention to make affirmative finding on ground that there had been no jury finding. Henderson v. State (App. 3 Dist. 2006) 2006 WL 952374, petition for discretionary review filed. Criminal Law 1035(1) Remand for development of the record and reconsideration of sentence enhancement imposed upon conviction for illegal reentry after deportation following conviction for an aggravated felony was required, where Court of Appeals was unable to determine from the record on appeal the elements of assault to which defendant pleaded guilty in his underlying Texas conviction for Class A misdemeanor assault. U.S. v. Ramirez-Aguilar, C.A.5 (Tex.)2006, 171 Fed.Appx. 449, 2006 WL 684433, Unreported. Criminal Law 1181.5(8) 46. Jury

Trial court committed no error during venire examination of jurors in prosecution for assaulting a public servant; although review of voir dire examination showed that 16 venire members knew prosecutor or his family, they all indicated they would consider facts of case and not base their decision on their knowledge of prosecutor or his family, neither state nor defendant raised challenge for cause, and court did not limit defendant's questioning of jury. Gearhart v. State (App. 13 Dist. 2003) 122 S.W.3d 459, petition stricken, petition for discretionary review refused. Jury 91; Jury 131(4) V. T. C. A., Penal Code � 22.01, TX PENAL � 22.01 Current through the end of the 2006 3rd Called Session of the 79th Legislature. � 2006 Thomson/West END OF DOCUMENT (C) 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.