Landrian v. State

OPINION

delivered the opinion of the Court

We address the jury unanimity requirement in the context of an aggravated-assault prosecution.1 The evidence at trial showed that Luis Brizuela went to a company Christmas party hosted by appellant’s boss. As the party ended, appellant *533and a drunk “party-crasher” got into a fight outside. Glass from a broken bottle that appellant threw at or in Mr. Brizuela’s direction hit him and caused Mr. Brizuela to lose his left eye. Appellant was charged with the aggravated assault of Luis Brizuela by either (1) intentionally or knowingly causing bodily injury by using a deadly weapon, a bottle, or (2) recklessly causing serious bodily injury by throwing a bottle in his direction. The jury was charged in the disjunctive, and it returned a general verdict. The First Court of Appeals held that the trial judge erred because he did not require the jury to reach a unanimous verdict on whether appellant intentionally or knowingly caused bodily injury by using the bottle as a deadly weapon or whether he recklessly caused serious bodily injury by throwing the bottle in Mr. Brizuela’s direction.2

We conclude that the trial judge did not err. The jury charge required the jury to unanimously find that appellant caused bodily injury to Luis Brizuela. The gravamen of this result-oriented offense is “causing bodily injury.” The jury did not have to be unanimous on the aggravating factors of whether it was a “serious” bodily injury or whether appellant used a deadly weapon.

I.

The evidence at trial was hotly contested. Luis Brizuela testified that he went to a company Christmas party at the Camino Real Apartments clubhouse on December 19, 2003, to pick up his cousin who worked for the company. Mr. Brizuela went inside and visited with friends, including appellant, for a while. Everyone was drinking,3 and Mr. Brizuela had two beers. He got a call on his cell phone, so he went outside and walked around to the back of the clubhouse to answer it. After he finished his call, he returned to the front of the clubhouse where he saw a person lying on the ground. It was Luis Miguel, whom he had met earlier at the party. Luis Miguel was drunk and “asleep.” He had blood all over him. When Mr. Brizuela was five feet from the front door, he saw appellant come outside. Appellant threw a bottle at him. It hit him in the left eye. His eye began to bleed and it hurt a great deal. Soon paramedics arrived and took him to the hospital. He had emergency surgery, but about a week later, he had to have another operation to remove his left eye. Other witnesses for the State largely corroborated Mr. Brizuela’s account of the incident, though some of them testified that appellant threw the bottle at Luis Miguel, but it hit Luis Brizuela instead. One witness stated that appellant smashed the beer bottle against the wall and then threw it into the air, not aiming at anyone in particular.

Witnesses for the defense, including appellant, testified that Mr. Brizuela came to the party with two other men who were drunk. They were loud and angry. The security guard told them to leave the clubhouse and they did so, but they remained outside drinking. As the party ended, appellant helped clean up the clubhouse. When he went outside to gather beer bottles, Luis Miguel attacked him and jumped on top of him. Appellant grabbed an empty beer bottle and “cracked” Luis Miguel on the head with it. The bottle exploded. Luis Miguel was stunned, but he lunged *534toward appellant again. Other guests separated the two men, and appellant went back inside.4 Appellant testified that he had acted solely in self-defense. He said that he had no idea that Luis Brizuela had been hurt until the next day when someone told him that Mr. Brizuela had been hit with a piece of glass during the altercation. Appellant was very concerned and tried to call and visit Mr. Brizuela several times, but he did not answer the door or return appellant’s phone calls.

Dr. Benz testified that he performed the initial operation on Mr. Brizuela’s eye. He thought that the injury was more consistent with an act of throwing a broken bottle into the eye than with the act of breaking a beer bottle over someone’s head and a glass shard flying into the eye. Dr. Benz formed this opinion because “this was the largest intraocular foreign body I had ever taken out of an eye. In order for it to penetrate the eye it would take a significant amount of force.”

Officer Le, the initial investigator, testified that Mr. Brizuela told him, a day after the incident, that it was “an accident.” Mr. Brizuela said that appellant threw the beer bottle at another man and a shard of glass hit Mr. Brizuela in the face. Officer Le also said that a bottle thrown or “slashed” at another person could cause death or serious bodily injury.

The trial judge instructed the jury on aggravated assault and self-defense. The abstract portion of that charge read as follows:

A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another.

A person commits the offense of aggravated assault if the person commits assault, as hereinbefore defined, and the person:

(1) causes serious bodily injury to another; or

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

In the application section, the trial judge submitted the two aggravating factors in disjunctive paragraphs.5 The jury was not required to be unanimous on which aggravating factor it had found, “serious bodily injury” or “use of a deadly weapon.” The trial judge also submitted a special “deadly weapon” issue because he was concerned about a potential unanimity problem. He reasoned that, if the jury found that appellant had used the bottle as a deadly weapon, it would necessarily be unanimous on the second aggravating factor, causing *535bodily injury by using a deadly weapon.6

After lengthy deliberations and several notes requesting clarification, the jury returned a “guilty” verdict. It also found that appellant had used a deadly weapon. The jury assessed a sentence of seven years’ imprisonment, but recommended community supervision.

On appeal, appellant argued that he was “denied the right to a unanimous jury verdict because the charge allowed the jury to convict him of aggravated assault without unanimously determining whether [he] (1) intentionally or knowingly caused bodily injury with a deadly weapon or (2) recklessly caused serious bodily injury.”7 The court of appeals agreed, concluding that “the jury charge presented two types of aggravated assault without requiring the jury to determine unanimously whether appellant caused serious bodily injury as alleged in paragraph one or whether appellant caused bodily injury as alleged in paragraph two.”8 It held that the error was harmful and remanded the case for a new trial.9

II.

Under the Texas Constitution and Code of Criminal Procedure, a Texas jury must reach a unanimous verdict.10 The jury must agree that the defendant committed one specific crime.11 That does not mean, however, that the jury must unanimously find that the defendant committed that crime in one specific way or even with one specific act.12 The Legislature has considerable discretion in defining crimes and the manner in which those crimes can be committed. That discretion is limited only by the Due Process Clause of the federal constitution and the Due Course of Law provision of the Texas Constitution.13

*536In deciding what elements and facts a jury must unanimously agree on, courts implement the legislative intent behind the penal provision. Both Texas and federal courts have held that the jury must be unanimous in finding that the defendant committed a specific statutory crime.14 But it is the legislature, not the courts, that defines the forbidden act, the required culpability, and the particular result, if any.15

The Texas Legislature has defined the crime of assault in Section 22.01 of the Penal Code. Subsection (a) of that provision sets out three separate and distinct assaultive crimes, two of which are relevant to the present discussion:

(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[.]

Subsection (1) — “bodily injury” assault is a result-oriented assaultive offense and normally a Class A misdemeanor. Subsection (2) is conduct-oriented, focusing upon the act of making a threat, regardless of any result that threat might cause.16 It is normally a Class C misdemeanor.17

Section 22.02 of the Penal Code then defines the crime of aggravated assault as being an assault under Section 22.01, and the person

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

(2) uses or exhibits a deadly weapon during the commission of the assault.18

Normally, Subsection (1) may act as an aggravating factor only for “bodily injury” assault under Section 22.01(a)(1); absent special circumstances,19 one cannot cause serious bodily injury solely by making a *537threat. But the use of a deadly weapon may act as an aggravating factor for “bodily injury” assault under Section 22.01(a)(1), as well as assault by threat under Section 22.01(a)(2). Normally, the offense of aggravated assault, regardless of which aggravating factor is used, is a second-degree felony.20

The gravamen of the offense of aggravated assault is the specific type of assault defined in Section 22.01. Thus, the actus reus for “bodily injury” aggravated assault is “causing bodily injury.” Turning to the eighth-grade grammar test, the subject is “the defendant,” the verb is “cause” and the direct object is “bodily injury.”21 The precise act or nature of conduct in this result-oriented offense is inconsequential.22 “What matters is that the conduct (whatever it may be) is done with the required culpability to effect the result the Legislature has specified.”23

This actus reus must be accompanied by a culpable mental state. In its “bodily injury” assault subsection, the legislature stated that any of three culpable mental states suffices: intentionally, knowingly, or recklessly causing bodily injury. The legislature was apparently neutral about which of these three mental states accompanied the forbidden conduct because all three culpable mental states are listed together in a single phrase within a single subsection of the statute. There is no indication that the legislature intended for an “intentional” bodily injury assault to be a separate crime from a “knowing” bodily injury assault or that both of those differ from a “reckless” bodily injury assault.24 All three culpable mental states are strung together in a single phrase within a single subsection of the statute. All result in the same punishment. They are conceptually equivalent.25 Because the Penal Code explicitly states that proof of a greater culpability is also proof of any lesser culpability,26 it would not matter, for example, if six members of a jury found that the defendant intentionally killed his victim and six members found that he had knowingly killed his victim.27 The same is true with *538“bodily injury” assault.28

Aggravated assault increases the penalty for simple “bodily injury” assault if the victim suffers a significantly greater degree of bodily harm — serious bodily injury, rather than mere bodily injury. The type of injury does not vary, only the degree of the injury. “Serious” is an adjective that modifies “bodily injury.” It does not change the direct object, it merely describes it.

Aggravated assault also increases the penalty for simple “bodily injury” assault if the defendant’s manner of committing that assault increases the likelihood of death or serious bodily injury because he used or exhibited a deadly weapon during the assault.

But, as we have recently held, both of these means of committing aggravated bodily assault involve the use of a deadly weapon:

Aggravated assault may be committed in only two ways: (1) by “causfing] serious bodily injury” or (2) by “us[ing] or exhibiting] a deadly weapon during the commission of the assault.” Each of these involves the use of a deadly weapon. The first way necessarily implies the use of a deadly weapon, which is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” The second way specifies the use of a deadly weapon. Therefore an allegation that a defendant committed aggravated assault gives him notice that the deadly nature of the weapon alleged in the indictment would be an issue at trial and that the State may seek an affirmative finding on the use of the weapon.29

Thus, both statutory aggravators of simple assault involve the use of a deadly weapon, either because a serious bodily injury is necessarily caused by a deadly weapon or because a deadly weapon is explicitly pled in the indictment.30

In sum, simple “bodily injury” assault is punished more severely depending upon the degree of the victim’s injury or the manner in which the defendant committed the particular assault. The Texas Legislature has evinced no intent that jurors need be unanimous about which aggravating factor or element that they find — severity of injury or manner in which the defendant *539caused the injury.31 It is still the same single criminal act and still the same single bodily injury to the victim. Because the aggravated-assault statute defines two or more circumstances or factors by which the defendant’s punishment for a specific criminal act is increased, the defendant may be convicted if each juror concludes that at least one of the aggravating factors or elements exist.32

Several other states, in analyzing similar aggravated-assault statutes, have also found that their statutes did not set out separate and distinct offenses. Rather, the aggravating factors or elements are simply descriptions of separate means by which a single offense of assault may be committed. As noted by the Alaska Supreme Court in State v. James,33 “Alaska’s codification of the common law crime of first-degree assault prohibits only one act: a physical assault.”34 It may be committed in either of two ways — by using “a dangerous instrument” or by causing “serious physical injury” — but it is still one criminal act with one bodily injury to one victim.35 The same is true when the statutory subsections set out different mental states, but require a single assaultive act.36

*540With that general background, we turn to the present case.

III.

In the court of appeals and in this Court, appellant argues that “bodily injury” aggravated assault is really composed of two separate and distinct criminal offenses. He is mistaken. He begins by correctly noting that the statutory definition of simple assault sets out three distinct criminal offenses under Section 22.01(a)(l)-(3). These are “bodily injury” assault, assault by threat, and “offensive contact” assault. So far, so good. But he then contends that “adding the aggravating elements to the simple assault statute” creates “several different combinations” and “a variety of different ways of having an aggravated assault.”37 That is true only if the underlying simple assault is pled as both “bodily injury” assault and assault by threat. In Marinos v. State,38 Dolkart v. State39 and Gonzales v. State,40 three different courts of appeals properly held that simple “bodily injury” assault is a separate and distinct crime from simple assault by threat.41 Thus aggravated assault under each distinct assaultive crime is a separate crime: aggravated assault with the underlying crime of assault by causing bodily injury and aggravated assault with the underlying crime of assault by threat.42 The first is a result-oriented offense and the second is a conduct-oriented offense.

But once the underlying type of assault is defined, then either of the aggravating factors set out under Section 22.02(a) may elevate that distinct assaultive crime to a second-degree felony. The aggravating factors or elements are simply the way in which the simple assault becomes a more serious offense.

In this case, for example, there is no dispute that appellant committed one single assaultive act — -he caused bodily injury to Luis Brizuela. He caused this result by (1) throwing a broken beer bottle at Mr. Brizuela, (2) throwing a beer bottle at Luis Miguel, (3) throwing a broken beer bottle into the air, or (4) “crashing” a beer bottle on Luis Miguel’s head. Under the State’s version of facts, there was no dispute that appellant wielded a beer bottle and that glass from that bottle hit Mr. Brizuela in the eye.43 Regardless of which version of the facts the jury believed, there was only one criminal act and it involved a beer bottle which blinded Mr. Brizuela in the left eye. There was no dispute that Mr. Brizuela suffered a serious bodily injury. *541There was no dispute that the broken beer bottle was capable of causing (and did cause) a serious bodily injury. Indeed, the jury unanimously found that the beer bottle was a deadly weapon.

The eighth-grade grammar test shows that appellant (the subject) caused (the verb) a bodily injury (the direct object) to one person, Mr. Brizuela. Under one aggravating factor, the degree (but not the type) of the bodily injury suffered by Mr. Brizuela was increased from simple “bodily injury” to “serious bodily injury.” These were not two distinct injuries; they were not two different types of injuries. They were the same bodily injury, but one was more serious in degree than the other and thus deserving of greater punishment.44 Under the other aggravating factor, appellant need not have caused serious bodily injury (though there was no dispute that he did), but he must have used a deadly weapon to cause bodily injury. The second aggravating factor describes “how” he caused a bodily injury and modifies the verb “caused.” Under each theory, the gravamen of the offense was the same.

Yet another way of testing whether the State charged one aggravated assault or two distinct and separate aggravated assault offenses is to ask whether the State could have obtained two aggravated assault convictions stemming from appellant’s criminal conduct. Would double jeopardy allow appellant to be punished for causing serious bodily injury by putting out Mr. Brizuela’s left eye and also punished for putting out Mr. Brizuela’s left eye with a deadly weapon by throwing a bottle at or in his direction? The answer is obvious: appellant committed only one assault during a single incident and may be punished for only one assault.45

Appellant and the court of appeals incorrectly concluded “that the trial court erred in submitting a jury charge without requiring the jury unanimously to agree that appellant either intentionally and knowingly caused bodily injury [while using a deadly weapon] or recklessly caused serious bodily injury.”46 We hold that the *542trial judge did not err in his instructions concerning a unanimous jury verdict.

We therefore reverse the judgment of the court of appeals and remand the case to that court to address appellant’s remaining points of error.