### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00621- CR

Ke nneth P. M iller, Appellant

v. The State of Texas, App ellee

F ROM CO UNTY COURT AT LAW NO . 4 O F TRAVIS CO UNTY NO. C-1 -CR- 09- 2006 37, H ONO RAB LE MI KE DENTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
A jury convicted appellant Kenne th P. Miller of the misdemeanor offe nse of assault causing bodily injury
. See Tex. Penal Code Ann. § 22.01(a) (1) (West Supp. 2010). Punishm ent was assessed at confine ment in the county jail for one y ear. I n a single issue on appea l, Miller asser ts that the trial cour

t erre d by ref using to c harg e the jury on what Miller claims is the lesser- included offe nse of a ssault by

contac t. We will affirm the judg ment. The State char g ed Miller with assaulting Channdell L ofton, the mother of his infant child, and ca

using he r injury . Specifica lly , the information conta ined the following alleg ations:
KENNET H MI L L ER, the Def endant, on or about J anuar y 9, 2009, did then and there intentionally , knowing ly , and rec klessly cause bodily injury to Channdell L ofton by seizing Channdell L ofton o n and about the head with Def endant’ s hand, and by pushing Channdell L ofton on and about the head with the Def endant’ s hand, and byhitting Channdell on and about the hea d with the Def endant’ s hand, and by

seizing Channdell L ofton on and a bout the torso with the Def endant’ s leg
. . . . 1
At trial, the State prese nted evidenc e supporting the alleg ations, including the testimony of L ofton. L ofton testified that on the day in question, she and Miller wer e talking outside of Miller’s house when they g ot into an arg ument over money . Acc ording to L ofton, the arg ument
soon esca lated into a phy sical alterc ation and Miller beca me violent—he g rabbe d her arm, pushed her to the g round, and proce eded to beat her, bang ing her head ag ainst t h e s i d e of the house, repe atedly punching her in the fac e, and drag g ing her by her hair into the backy ard, wher e he continued to assault her. L ofton testified that she sustained inj u ries as a result of the assault, including “contusi o ns all over the place ,” two black ey es with “blood vessels bursting in one of them,” and a

strained c ervix. Miller’s s t ra t egy at trial was to portray L ofton as the ag g ressor. Miller’s friend, Dar nell McClain, testified that he had witnessed the alterc ation and that L ofton had g rabbe d Miller’s shirt and then his pants and had pulled money out of his poc ket. Acc ording to McClain, afte r that, Miller and L ofton beg an “tussling for the money ” and “g oing, y ou know, blow for blow, she hit him and he hit her.” McClain char acte rized the alterc ation as Miller “just try ing to g et awa

y from her, g et his money

back.” Miller testified in his defe nse and claimed that L ofton initiated the violence by biting him and h i t t i n g him in the head. Miller explained, “I tried to pull her awa y by her hair, she was

The infor

mation contained a second parag raph a lleg ing the same c onduct but adding the 1 alleg ation that Miller and L ofton wer e invol ved in a dating relationship at t he time of the of fense
. Howeve r, the jury

was una ble to rea ch a ve rdict on this alleg ation.

2biting into my wrists and I g rabbe d her by her hair and pulled, she still wouldn’t let g o and that

seeme d kind of painful so I hit her in the chin.” Then, Miller asser ted, L ofton hit him under his ey e. Miller denied that he was try ing to hurt L ofton and claimed that he was using only the amount of forc e nec essar

y to defe nd himself from her
. During the char g e confe renc e, Miller arg ued that he was entitled to a jury instruction
on the offe nse of assault by conta ct wh i ch , he claimed, was a lesser- included offe nse of assault causing bodily injury
. See Tex. Penal Co d e An n . § 2 2.01(a) (3) (def ining offe nse of assault by contac t). The trial court denied the reque sted instruction and Miller was subsequently convicted of the cha rg ed off ense. This a

ppeal f ollowed. After this case was briefe d by the parties, the Texas Court of Criminal Appea ls decide d the very issue that is now befor e u s . I n Mc K i than v. State , the court held that assault by contac t wa s n ot a lesser- included offe nse of assault causing bodily injury
. See Nos. PD-0969-09 & PD-0811-09, 2010 Tex. Crim. App. L EXI S 1392, at *26 (Tex. Cri m . Ap p . Nov. 10, 2010). Apply ing the cog nate- pleading s approa ch it had fi rs t ad o p t ed in Hall v. State , 225 S.W .3d 524 (T ex . C ri m . App. 2007), the court conclude d that the offe nse of assault by contac t contained an additional element that the State was not require d to prove in order to establish the char g ed offe nse of assault causing bodily injury
. See McKithan , 2010 Tex. Crim. App. L E XIS 1392, at *26-27. Specifica lly , in an assault-by -conta ct case , the State is require d to prove that the defe ndant knew or should have rea sonabl y b el ieved that the complainant would reg ard the contac t as offe nsive or provocative. See Tex. Penal Code Ann. § 22.01(a) (3). On the other hand, “[ i ] n establishing the char g ed bodily -injury -assa ult offe nse, the State was require d to prove only that appellant cause d the

3complainant bodily injury by [assaulting] her. I t is irrele vant whether the defe ndant knew or should

have rea sonably believed that the complainant would consider this contac t as off en s i v e or provocative.” McKithan , 2010 Tex. Crim. App. L EXI S 1392, at *27. The court added that “it is not dispositi ve th at t h e evidenc e in [appellant’s] bodily -injury -assa ult case may also have shown offe nsive-conta ct assault. The rele vant inquiry is not what the evidenc e may show but what the State is require d to prove to establish the c harg ed off ense.” Id . at *33-34 (inter nal citations omitted). Following McKithan , we conclude that the State was not require d to prove that Miller knew or should have rea sonably believed that L ofton would regard h i s contact as offe nsive or provocative. Miller was thus not entitled to an instruction on the offe nse of assault by contac t. We
overr ule Miller’s sole issue on a ppeal. We affir m the judgme nt of the trial cour t.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: January

5, 2011 Do Not Publish

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