1

See § 22.01(a)(3), TEX. PENAL CODE (person commits an assault if person “causes physical

contact with another when the person knows or should reasonably believe that the other will regard

the contact as offensive or provocative”).

 

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. PD-0969-09 & PD-0811-09

JULIAN MARS MCKITHAN & RALPH FRANKLIN WELSH, Appellants

v.

THE STATE OF TEXAS

ON APPELLANTS’ PETITIONS FOR DISCRETIONARY REVIEW

FROM THE FIRST & SECOND COURTS OF APPEALS

HARRIS & TARRANT COUNTIES

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS,

WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined. COCHRAN, J., filed a concurring

opinion in which HOLCOMB, J., joined. PRICE and JOHNSON, JJ., concurred.

O P I N I O N

In these consolidated cases, we address whether, under the cognate-pleadings approach of

the step-one lesser-included-offense analysis set out in our decision in Hall v. State, 225 S.W.3d 525

(Tex.Cr.App. 2007), offensive-contact assault is a lesser-included offense of the charged offense

1
McKithan/Welsh--2

2

See § 22.01(a)(1), TEX. PENAL CODE (person commits an assault if person causes bodily

injury to another person); § 1.07(a)(8), TEX. PENAL CODE (“bodily injury” means “physical pain,

illness, or any impairment of physical condition”).

3

Welsh’s indictment also alleged that the complainant was a family or household member and

that Welsh had previously been convicted of bodily-injury assault against a family or household

member, which enhanced Welsh’s punishment range from a Class A misdemeanor to a third-degree

felony. See § 22.01(b)(2)(A), TEX. PENAL CODE.

4

See § 22.01(c), TEX. PENAL CODE.

5

See § 12.42(a)(3), TEX. PENAL CODE.

of bodily-injury assault in an indictment alleging bodily injury by “kicking” the complainant (Welsh,

2

PD-0811-09) and of the charged offense of aggravated sexual assault in an indictment alleging that

the complainant was compelled to submit and participate by the use of “physical force and violence”

(McKithan, PD-0969-09). We also address McKithan’s claim that bodily-injury assault is a lesserincluded offense of the charged aggravated-sexual-assault offense. We decide that offensive-contact

assault is a not lesser-included offense of the charged offenses in Welsh and in McKithan and that

bodily-injury assault also is not a lesser-included offense of the charged offense in McKithan.

An indictment charged Welsh with committing bodily-injury assault by “kicking” the

complainant (Welsh’s wife) with his foot. The trial court denied Welsh’s request for a jury 3

instruction on the nonenhanceable Class C misdemeanor offense of offensive-contact assault. A4

jury convicted Welsh of the charged third-degree felony of bodily-injury assault and sentenced him,

as an habitual offender, to eighteen years in prison.5

Welsh claimed on direct appeal that he was entitled to a jury instruction on offensive-contact

assault as a lesser-included offense of the charged offense of bodily-injury assault. The court of
McKithan/Welsh--3

6

See §§§§ 22.021(a)(1)(A), 22.021(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) TEX. PENAL CODE

(person commits aggravated sexual assault if person causes the penetration of the sexual organ of

another person by any means without that other person’s consent by compelling that other person

to submit or participate by the use of physical force or violence and the person by acts or words

places the other person in fear of imminent serious bodily injury).

appeals decided that offensive-contact assault is not a lesser-included offense of the charged bodilyinjury-assault offense because, to establish that Welsh caused bodily injury to the complainant “by

kicking her with his foot, the State was not required to prove that Welsh knew or reasonably should

have believed that [the complainant] would regard the contact as offensive or provocative.” See

Welsh v. State, No. 02-08-169-CR, slip op. at 4-5 (Tex.App.–Fort Worth, delivered May 21, 2009)

(not designated for publication).

McKithan was charged with aggravated sexual assault in an indictment that in six paragraphs

alleged alternative manners and means of committing this offense. The first paragraph of the

indictment alleged that McKithan sexually assaulted the complainant by placing his finger inside the

complainant’s sexual organ and that McKithan compelled the complainant to submit and participate

by the use of “physical force and violence, and by acts and words the Defendant placed the

Complainant in fear that SERIOUS BODILY INJURY would be imminently inflicted on [the

complainant].” (Capitalization in original). The first paragraph of McKithan’s indictment 6

specifically alleged:

The duly organized Grand Jury of Harris County, Texas, presents in the District

Court of Harris County, Texas, that in Harris County, Texas, JULIAN MARS

MCKITHAN, hereafter styled the Defendant, heretofore on or about DECEMBER

17, 2006, did then and there unlawfully, intentionally and knowingly cause the

penetration of the FEMALE SEXUAL ORGAN of [the complainant], hereinafter

called the Complainant, by placing A FINGER in the FEMALE SEXUAL ORGAN

of the Complainant, without the consent of the Complainant, namely, the Defendant

compelled the Complainant to submit and participate by the use of physical force and
McKithan/Welsh--4

7

The five additional paragraphs in the indictment alleged aggravated sexual assault by other

manner and means. For example, paragraph two of the indictment was identical to paragraph one

except that it alleged that “by acts and words the Defendant placed the Complainant in fear that

KIDNAPPING would be imminently inflicted on [the complainant.].” (Capitalization in original).

See §§§§ 22.021(a)(1)(A), 22.021(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) TEX. PENAL CODE. We

further note that McKithan argued in his discretionary-review petition that the “other [four]

paragraphs were variations of the[] themes” in the first two paragraphs.

8

The record reflects that McKithan requested jury instructions on the lesser-included offenses

“of assault, bodily injury, and assault defensive touching.” The State argues on discretionary review

that McKithan failed to preserve the claim that he was entitled to a jury instruction on offensivecontact assault because McKithan requested an instruction on “defensive touching” and “there is no

such offense in the Penal Code.” We note that the State did not make this preservation-of-error

claim in the court of appeals and that the court of appeals addressed the merits of McKithan’s claim

that he was entitled to a jury instruction on offensive-contact assault. See McKithan, slip op. at 3

n.3 (stating that it understood “appellant’s objection to be ‘assault, offensive touching’”) (emphasis

in original). We reject the State’s preservation-of-error claim.

9

See §§ 12.42(d), 22.01(e), TEX. PENAL CODE.

violence, and by acts and words the Defendant placed the Complainant in fear that

SERIOUS BODILY INJURY would be imminently inflicted on [the complainant].

(Emphasis in bold and capitalization in original).7

McKithan testified at trial and denied having sexual contact with the complainant, but

admitted assaulting her by, among other things, “slapping and punching” her. The trial court denied

his request for jury instructions on bodily-injury assault and on offensive-contact assault. A jury 8

convicted McKithan of the charged aggravated-sexual-assault offense and sentenced him, as an

habitual offender, to life in prison.9

We understand McKithan to have claimed on direct appeal that he was entitled to jury

instructions on bodily-injury assault and on offensive-contact assault as lesser-included offenses of

the charged aggravated-sexual-assault offense under the “physical force and violence” allegation in
McKithan/Welsh--5

10

We express no opinion on whether these are lesser-included offenses under the other

paragraphs of the indictment. See Hall, 225 S.W.3d at 531 (“This court has said on a number of

occasions that when the greater offense may be committed in more than one manner, the manner

alleged will determine the availability of lesser-included offenses.”); cf. Feldman v. State, 71 S.W.3d

738, 750-54 (Tex.Cr.App. 2002) (in capital-murder prosecution alleging two alternative means of

committing the offense, defendant not entitled to lesser-included-offense instruction on murder,

under the second step of lesser-included-offense analysis, without evidence negating both alternative

means of committing the offense).

11

McKithan argues in his brief on discretionary review that the court of appeals erred by

focusing exclusively on the “aggravating factors” alleged in the indictment and ignoring the

allegation of “physical force and violence,” which, according to McKithan, “without regard to any

aggravating factors–provide[s] the basis for deducing the elements of the lesser offenses.” McKithan

argues:

The first error, as is apparent from the language of the [court of appeals’s] holding

above, is that the court of appeals focused exclusively on the “aggravating factors”

alleged in the indictment. This is hard to understand, because Appellant’s brief

specifically called the court’s attention to the first paragraph of the indictment: “The

first paragraph then alleged that Appellant ‘compelled the Complainant to submit and

the first paragraph of the indictment. The court of appeals rejected this claim because neither 10

“bodily injury” nor “offensive touching” are “within the elements of aggravated sexual assault as

charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors.”

See McKithan v. State, No. 01-08-00222-CR, slip op. at 9 (Tex.App.–Houston [1 Dist.], delivered

st

June 4, 2009) (not designated for publication) (“However, we must address appellant’s contention

that assault bodily injury and assault offensive touching were lesser-included offenses of aggravated

sexual assault as charged in the indictment. Assault bodily injury requires proof that the defendant

caused bodily injury to the complainant; assault offensive touching requires proof that the defendant

knew or should have reasonably believed that the complainant would regard the contact as offensive

or provocative. Neither of these elements are within the elements of aggravated sexual assault as

charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors.”).11
McKithan/Welsh--6

participate by the use of physical force and violence, and by acts and words the

Defendant placed the Complainant in fear that serious bodily injury would be

imminently inflicted on [the complainant].’” The first portion of that paragraph states

an essential element of sexual assault; is not “an aggravating factor.”

The offense of sexual assault under Penal Code Sec. 22.011(a)(1)(A) requires proof

that the assaultive conduct on the other person is “without that person’s consent,” and

subsection (b) prescribes 11 ways in which that element must be established. The

first way in which it may be alleged that the assaultive conduct was “without

consent” is set out in subsection (b)(1), and the State included that language in

Appellant’s indictment, alleging that in causing physical contact with the

complainant he “compelled the complainant to submit and participate by the use of

physical force and violence.” It makes absolutely no difference that the indictment

“relied on assault bythreat or kidnapping as aggravating factors,” as the lower court’s

opinion stated. (See quoted portion, supra) If the allegations of the indictment, less

the aggravating factors, less any factors and any number of factors in the abstract,

permit a deduction of a lesser offense on those reduced facts, then the cognate

pleadings test [set out in Hall] is satisfied. In this case it happens that the allegations

of the sexual assault–without regard to any aggravating factors–provide the basis for

deducing the elements of the lesser offenses.

(Emphasis in underline in original).

12

The parties have cited published and unpublished intermediate appellate court decisions that

the parties assert demonstrate conflicting intermediate-appellate-court decisions on this issue.

Compare Aguilar v. State, 263 S.W.3d 430, 434-36 (Tex.App.–Houston [1 Dist.] 2008, pet. ref’d) st

(aggravated-robbery indictment alleging that the defendant caused bodily injury “by striking [the

complainant] in the head with his fist” did not include offensive-contact assault because the “facts

required to prove [offensive-contact] assault include two that are not the same as, or less than, those

required to establish the aggravated robbery: that the contact was offensive or provocative and that

[the defendant] knew or should have known that the contact was offensive or provocative”); Ramos

v. State, 981 S.W.2d 700, 701 (Tex.App.–Houston [1 Dist.] 1998, pet. ref’d) (same with respect to st

charged offenses of aggravated sexual assault by penetration and indecency by contact because

neither of these two offenses, as charged, required “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”) with In re A.E.B., 255 S.W.3d 338, 345-47 (Tex.App.–Dallas 2008, pet. dism’d)

We granted discretionary review in these cases and consolidated them. In Welsh, PD-0811-

09, we granted review of the following ground:

The Fort Worth Court of Appeals erred in holding that appellant was not entitled to

an instruction on the lesser included offense of assault by contact.12
McKithan/Welsh--7

(attempted-sexual-assault indictment alleging that juvenile “knocked O.P. [the complainant] to the

ground and physically overpowered her” included offensive-contact assault because “the conduct

element of attempted sexual assault alleged–knocking O.P. to the ground and physically

overpowering her–includes the conduct element of assault–causing physical contact with O.P. when

he knew or should reasonably have believed that O.P. would have regarded the contact as offensive

or provocative”).

13

McKithan also claims in his brief on discretionary review, as he did in the trial court, in the

court of appeals and in his discretionary-review petition, that bodily-injury assault is also a lesserincluded offense of the charged aggravated-sexual-assault offense. We will address this claim.

14

Emphasis supplied.

In McKithan, PD-969-09, we granted review of the following ground:

Was the Court of Appeals correct in saying assault–offensive touching–is not allowed

when the indictment says the defendant used force and violence against the

complainant?13

Article 37.09(1), TEX. CODE CRIM. PROC., provides that an offense is a lesser-included

offense “if it is established by proof of the same or less than all the facts required to establish the

commission of the offense charged.” In Hall, we adopted the cognate-pleadings approach for the 14

first step of the lesser-included offense analysis and recognized that this approach is compatible with,

and is “the better analysis” of, Article 37.09. See Hall, 225 S.W.3d at 533 (Article 37.09 is

compatible with cognate-pleadings approach to lesser-included offenses) and at 535 (holding that

cognate-pleadings approach is the sole test for determining in the first step whether a party may be

entitled to a lesser-included-offense instruction) and at 537 (also recognizing that this is the “better

analysis” of Article 37.09) and at 539 (Hervey, J., dissenting) (“The Court’s decision that Article

37.09(1) requires an examination of the statutory elements of the charged offense as they are

modified by the charging instrument in determining the ‘facts required’ to establish the commission
McKithan/Welsh--8

of the offense charged is consistent with the plain language of Article 37.09(1).”). We further stated

in Hall that the step-one lesser-included-offense analysis must be “capable of being performed before

trial by comparing the elements of the offense as they are alleged in the indictment or information

with the elements of the potential lesser-included offense.” See Hall, 225 S.W.3d at 535-36. We

also stated in Hall that “the elements of the lesser offense do not have to be pleaded [in the

indictment] if they can be deduced from the facts alleged in the indictment.” See Hall, 225 S.W. 3d

at 535.

In an opinion on rehearing in Ex parte Watson, we reaffirmed that Article 37.09(1) and Hall

control the step-one lesser-included-offense analysis. See Ex parte Watson, 306 S.W.3d 259, 273

(Tex.Cr.App. 2009) (op. on reh’g). The opinion on rehearing in Watson stated:

We now reaffirm the principle that we, at least implicitly, recognized in Hall: An

offense is a lesser-included offense of another offense, under Article 37.09(1) of the

Code of Criminal Procedure, if the indictment for the greater-inclusive offense either:

1) alleges all of the elements of the lesser-included offense, or 2) alleges elements

plus facts (including descriptive averments, such as non-statutory manner and means,

that are alleged for purposes of providing notice) from which all of the elements of

the lesser-included offense may be deduced. Both statutory elements and any

descriptive averments alleged in the indictment for the greater-inclusive offense

should be compared to the statutory elements of the lesser offense. If a descriptive

averment in the indictment for the greater offense is identical to an element of the

lesser offense, or if an element of the lesser offense may be deduced from a

descriptive averment in the indictment for the greater-inclusive offense, this

should be factored into [the first step of] the lesser-included-offense analysis in

asking whether all of the elements of the lesser offense are contained within the

allegations of the greater offense.

Id. (footnotes omitted and emphasis supplied).

This emphasized language from the opinion on rehearing in Watson is based on the statement

in Hall that “the elements of the lesser offense do not have to be pleaded [in the indictment] if they

can be deduced from the facts alleged in the indictment.” See Hall, 225 S.W. 3d at 535. Our cases
McKithan/Welsh--9

15

This “functional-equivalence concept” appears to be synonymous with the concepts of

“necessary inclusion” or “subsumption of elements.” See Evans, 299 S.W.3d at 143. 

16

In Salazar, we stated:

In this case, the Court of Appeals did correctly identify Hall as the controlling

standard for assessing lesser-included offenses. However, in its analysis of the first

step, the Court determined that the legal elements of criminal trespass were not

comparable to the elements of burglary of a habitation as they were alleged in the

indictment. According to the Court, the notable element absent from the indictment

have recognized that this statement from Hall approvingly describes what is essentially the

“functional-equivalence concept” as a valid component of the step-one lesser-included-offense

analysis set out in Hall. See Evans v. State, 299 S.W.3d 138, 143 (Tex.Cr.App. 2009) (noting State’s

concession “that Hall approved the use in the lesser-included-offense analysis of a concept similar

to functional equivalence when it stated that ‘the elements of the lesser offense do not have to be

pleaded if they can be deduced from the facts alleged in the indictment.’”) (emphasis added in

original). The “functional-equivalence concept” requires courts to “examine the elements of the 15

lesser offense and decide whether they are functionally the same or less than those required to prove

the charged offense.” See Farrakhan v. State, 247 S.W.3d 720, 722-23 (Tex.Cr.App. 2008) (internal

quotes omitted and emphasis in original) and at 724 (“When it used the term ‘functional

equivalence,’ the court [of appeals] employed the same two-step method of conducting such lesserincluded-offense analyses in its opinion that we described in Hall shortly thereafter.”).

This is consistent with our decision in Salazar v. State in which we held that a habitation

“inherently” provides notice that entry is forbidden for purposes of determining whether criminal

trespass is a lesser-included offense of the charged burglary-of-a-habitation offense. See Salazar v.

State, 284 S.W.3d 874, 875, 878 (Tex.Cr.App. 2009). In other words, the indictment’s allegation 16
McKithan/Welsh--10

was notice of forbidden entry, which is a requirement of criminal trespass and yet

nowhere mentioned in the indictment. In this case, however, it would not have been

necessary to expressly include the language of notice in the indictment because notice

is inherent in a “habitation.” Further, pursuant to Hall, “the elements of the lesser

offense do not have to be pleaded if they can be deduced from the facts alleged in the

indictment.” We believe it can be deduced from the indictment, that the appellant

had notice, quite simply, because notice is inherent to a habitation and the indictment

read “burglary of a habitation.”

See Salazar, 284 S.W.3d at 878 (footnotes omitted and emphasis in original).

in Salazar of a “habitation” was functionally equivalent to an allegation of notice that entry into the

habitation was forbidden making this element of criminal trespass established by the facts required

(i.e., “habitation”) to establish the charged burglary-of-a-habitation offense. See id. Thus, in cases

like this, where an allegation in the indictment is not identical to an element of the lesser offense,

the issue under Hall is whether the indictment’s allegation is functionally equivalent to an element

of the lesser offense. See Watson, 306 S.W.3d at 273 (op. on reh’g); Evans, 299 S.W.3d at 143;

Salazar, 284 S.W.3d at 878; Farrakhan, 247 S.W.3d at 722-23.

I. Is Bodily-Injury Assault or Offensive-Contact Assault a Lesser-Included Offense of the

Charged Offense in McKithan?

The elements of bodily-injury assault are set out in Section 22.01(a)(1) of the Penal Code,

which provides that a person commits the offense of assault if the person causes bodily injury to

another. The elements of offensive-contact assault are set out in Section 22.01(a)(3) of the Penal

Code, which provides that a person commits the offense of assault if the person causes physical

contact with another when the person knows or should reasonably believe that the other will regard

the contact as offensive or provocative.

Initially, we note that McKithan has not claimed that the indictment’s allegation that he

penetrated the complainant’s sexual organ with his finger is the functional equivalent (or requires
McKithan/Welsh--11

17

This could be because McKithan determined that he would not have been entitled to jury

instructions on these offenses under the step-two lesser-included-offense analysis under Hall, since

McKithan testified at trial and denied that he penetrated the complainant’s sexual organ with his

finger. See Hall, 225 S.W.3d at 536 (evidence presented at trial is important to step-two lesserincluded-offense analysis). We express no opinion on whether the allegation in McKithan’s

indictment that he penetrated the complainant’s sexual organ with his finger required the State to

prove bodily-injury assault or offensive-contact assault.

18

For example, McKithan argues:

[T]he language alleging sexual assault in this indictment clearly implies the elements

of Penal Code Sec. 22.01(a)[3], assault by causing physical contact with another

when the actor knows or reasonably should believe the other person will regard the

contact as offensive, as a possible lesser offense. It takes no great leap of the

imagination to infer–that is, to deduce from the language of the indictment–that the

complainant would regard as offensive [McKithan’s] physical contact, which the

indictment alleged that he compelled her to submit to, by the use of force and

violence, and that [McKithan] did know orreasonably should have known she would

regard it as offensive.

19

We note that “infer” is a definition and synonym of the term “deduce.” See Roget’s Desk

Thesaurus 133 (2001); Webster’s II New Collegiate Dictionary 294 (1999).

proof) of bodily-injury assault or of offensive-contact assault. Rather, McKithan claims that these 17

offenses may be deduced or inferred from the indictment’s “physical force and violence” allegation.

McKithan argues in his brief on discretionary review that “[i]t can certainly be inferred from the

indictment’s allegation that [McKithan] used physical force and violence against the complainant

that he caused her pain–one definition of bodily injury” in Section 1.07(a)(8) of the Penal Code and

that “he would know that the complainant would find such contact offensive or provocative.”18

McKithan’s arguments are based on the language from the opinion on rehearing in Watson

that it is relevant to the step-one lesser-included-offense analysis under Hall “if an element of the

lesser offense may be deduced from a descriptive averment in the indictment for the greater- 19
McKithan/Welsh--12

20

We also note that McKithan’s reading of the opinion on rehearing in Watson would be

inconsistent with the “facts required” language in Article 37.09(1) and would change this “facts

required” language into “facts deduced or inferred.” See Hall, 225 S.W.3d at 534 (disapproving of

interpretation of Article 37.09(1) that negates the language of Article 37.09(1) “by changing ‘facts

required’ into ‘facts presented’”) (quoting Jacob v. State, 892 S.W.2d 905, 908 (Tex.Cr.App. 1995)).

inclusive offense.” McKithan’s arguments, however, read too much into this statement from the

opinion on rehearing in Watson, which, as we have already discussed, describes what is essentially

the “functional-equivalence concept” as a valid component of the step-one lesser-included-offense

analysis under Hall. See also Evans, 299 S.W.3d at 143; Salazar, 284 S.W.3d at 878; Farrakhan,

247 S.W.3d at 722-24. The issue under Hall and Watson is not whether bodily-injury assault or 20

offensive-contact assault may be deduced or inferred from the indictment’s allegation that McKithan

used “physical force and violence” but whether this allegation in the indictment is functionally

equivalent to an allegation of bodily-injury assault or to an allegation of offensive-contact assault

(i.e., whether, in establishing the “physical force and violence” allegation in the indictment, the State

was required to prove bodily-injury assault or offensive-contact assault).

And we believe that settled case law supports a decision that the “physical force and

violence” allegation in McKithan’s indictment is not functionally equivalent to an allegation of

bodily-injury and that the State was not required to prove bodily injury to establish this “physical

force and violence” allegation in McKithan’s aggravated-sexual-assault indictment. See Wisdom v.

State, 708 S.W.2d 840, 843 n.3 (Tex.Cr.App. 1986) (the terms “force” and “violence” are

“synonymous when used in relation to assault, and include any application of force even though it

entails no pain or bodily injury and leaves no mark”); Brown v. State, 576 S.W.2d 820, 822-23

(Tex.Cr.App. 1978) (defendant compelling complainant to submit to sexual intercourse by holding
McKithan/Welsh--13

21

McKithan also argues that this Court’s decision in Schmidt v. State “comes close to holding”

that bodily-injury assault is the legal equivalent to the “physical force and violence” allegation in the

indictment. See Schmidt v. State, 278 S.W.3d 353 (Tex.Cr.App. 2009). We understand McKithan

to claim that Schmidt decided that “striking” someone is the “legal equivalent of causing bodily

injury” which, according to McKithan, would support deciding that “physical force and violence”

is also the “legal equivalent of causing bodily injury.” In Schmidt, we assumed without deciding that

the defendant’s act of “striking” the complainant was “the legal equivalent of causing bodily injury,”

because the State did not challenge that decision by the court of appeals. See Schmidt, 278 S.W.3d

at 356 n.6. 

a gun to her head sufficient to show force and threats); Trejo v. State, 242 S.W.3d 48, 50-52

(Tex.App.–Houston [14 Dist.] 2007) (aggravated assault not lesser-included offense of charged th

aggravated-sexual-assault offense because serious bodily injury was not a “fact required” to establish

the “physical force and violence” and “threatening to use force and violence” allegations in the

indictment), overruled on other grounds, Trejo v. State, 280 S.W.3d 258 (Tex.Cr.App. 2009);

Edwards v. State, 97 S.W.3d 279, 291 (Tex.App.–Houston [14 Dist.] 2003, pet. ref’d) (explicit th

verbal threats and physical injury are not required to prove that a defendant compelled the victim’s

participation in a sexual assault by physical force and violence) (and cases cited); Gonzales v. State,

2 S.W.3d 411, 414-16 (Tex.App.–San Antonio 1999, no pet.) (defendant compelling the complainant

to submit to sexual intercourse by laying on top of the complainant and preventing her from moving

sufficient to show physical force and violence). The court of appeals, therefore, did not err to 21

decide that the trial court properly refused McKithan’s requested jury instruction on bodily-injury

assault.

We also believe that this case law supports a decision that the “physical force and violence”

allegation in McKithan’s indictment is not functionally equivalent to an allegation of physical

contact and that the State was not required to prove physical contact in establishing this “physical
McKithan/Welsh--14

force and violence” allegation in McKithan’s aggravated-sexual-assault indictment. See Wisdom,

708 S.W.2d at 843 n.3 (“violence is a general term and includes all sorts of force”); Brown, 576

S.W.2d at 822-23 ( concept of force includes “physical force, threats, or some other type of coercion”

and the defendant compelling the complainant to submit to sexual intercourse by holding a gun to

her head sufficient to show force or threats); Robinson v. State, 149 S.W. 186, 187-88 (Tex.Cr.App.

1912) (“violence” is a general term and includes all sorts of force and noting that the term has also

been defined as “moving or acting with physical strength, urged or impelled with force, acting that

is characterized or produced by improper force”). The court of appeals, therefore, did not err to

decide that the trial court properly refused McKithan’s requested jury instructions on offensivecontact assault.

II. Is Offensive-Contact Assault a Lesser-Included Offense of the Charged Offense in Welsh?

Welsh argues that offensive-contact assault is a lesser-included offense of bodily-injury

assault “because the element of causing bodily injury [by kicking] is legally equivalent to the

complainant’s regarding such contact as offensive or provocative.” We decide that the causingbodily-injury-by-kicking allegation in Welsh’s indictment is not functionally equivalent to an

allegation that Welsh knew or should reasonably have believed that the complainant would regard

this contact as offensive or provocative. The State was not required to prove the latter (i.e., that

appellant knew or should reasonably have believed that the complainant would regard this contact

as offensive) to establish the former (i.e. that appellant caused the complainant bodily injury by

kicking). See also Welsh, slip op. at 4-5 (offensive-contact assault is not a lesser-included offense

of the charged bodily-injury-assault offense as charged because, to establish that Welsh caused

bodily injury to the complainant “by kicking her with his foot, the State was not required to prove
McKithan/Welsh--15

22

See § 22.01(a)(1) (bodily-injury assault); § 22.01(a)(2) (assault by threatening another with

imminent bodily injury); § 22.01(a)(3) (offensive-contact assault).

that Welsh knew or reasonably should have believed that [the complainant] would regard the contact

as offensive or provocative”). In establishing the charged bodily-injury-assault offense, the State

was required to prove only that appellant caused the complainant bodily injury by kicking her. It is

irrelevant whether the defendant knew or should have reasonably believed that the complainant

would consider this contact as offensive or provocative.

We also note that this Court has stated that the three statutory definitions of simple assault

contained in Section 22.01(a)(1)-(3) of the Penal Code are “three distinct criminal offenses.” See

Landrian v. State, 268 S.W.3d 532, 540 (Tex.Cr.App. 2008). A contrary decision in this case 22

would be inconsistent with this legislative intent and would amount to a holding that, in every

bodily-injury-assault case involving physical contact, the State is required to prove, as an element

of that bodily-injury-assault case, that the defendant also knew or should have reasonably believed

that the complainant would regard that contact as offensive.

Our opinion in Hall and the opinions by the court of appeals and by this Court in Farrakhan

support this decision. See Farrakhan v. State, 263 S.W.3d 124, 132-40 (Tex.App.–Houston [1st

Dist.] 2006), aff’d by Farrakhan, 247 S.W.3d at 724. In Farrakhan, this Court approved of the court

of appeals’s pre-Hall lesser-included-offense analysis as being consistent with Hall. See Farrakhan,

247 S.W.3d at 724 (“When it used the term ‘functional equivalence,’ the court [of appeals] employed

the same two-step method of conducting such lesser-included-offense analyses in its opinion that we

described in Hall shortly thereafter. Thus, it reached the same result that Hall would have

mandated.”).
McKithan/Welsh--16

23

See § 545.421(a), TEX. TRANSP. CODE.

24

See § 38.04(a), TEX. PENAL CODE.

25

95 S.W.3d 516, 519 (Tex.App.–Fort Worth 2002, pet. ref’d) (deciding that offense of fleeing

or attempting to elude a police officer is a lesser-included offense of evading detention by use of a

motor vehicle).

The issue in Farrakhan was whether the Class B misdemeanor offense of fleeing or

attempting to elude a police officer is a lesser-included offense of the charged state-jail-felony 23

offense of evading detention by use of a motor vehicle. In relevant part, the indictment for the 24

state-jail-felony offense of evading detention by use of a motor vehicle alleged that the defendant

fled in a vehicle from a police officer who was attempting lawfully to arrest the defendant. See

Farrakhan, 263 S.W.3d at 132. Over the defendant’s objection, the trial court instructed the jury

on the Class B misdemeanor offense of fleeing or attempting to elude a police officer, which

provides that a person commits this offense when “the person operates a motor vehicle and wilfully

fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle

when given a visual or audible signal to bring the vehicle to a stop.” See Farrakhan, 263 S.W.3d

at 129, 132 (internal quotes omitted). This offense is further defined by stating that “the officer’s

signal may be by hand, voice, emergency light, or siren, and the signaling officer must be uniformed,

prominently displaying his badge, and driving a vehicle that is appropriately marked as an official

police vehicle.” See id. (internal quotes omitted).

Declining to follow the Fort Worth Court of Appeals’s decision in Walker v. State, the court

25

of appeals in Farrakhan decided that the State was not required to prove at least three elements of

the fleeing-or-attempting-to-elude-a-police-officer offense in establishing the charged evading-
McKithan/Welsh--17

26

Hall, therefore, decided that shooting and killing a person with a gun is not, in a step-one

detention-by-a-motor-vehicle offense and that “the uncharged offense’s elements requiring proof of

these three facts were neither the functional equivalents of the elements of the charged offense nor

were they included within the charged offense’s elements.” See Farrakhan, 263 S.W.3d at 138-39.

The court of appeals stated that it was irrelevant that the State may have proved the fleeing-orattempting-to-elude-a-police-officer offense “in the process of proving the statutorily required

elements of evading detention is irrelevant.” The court of appeals stated:

For example, as charged here, the offense of evading detention required that the State

prove only that appellant, by using a motor vehicle, intentionally fled from Officer

Roi when appellant knew that Officer Roi was a peace officer attempting to detain

him lawfully. That offense did not require the State to prove, for example, that

Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when

the suspect is in a vehicle); that the officer was uniformed and prominently

displaying his badge; or that, if the officer was using a vehicle, that vehicle was

appropriately marked as an official police vehicle. The fact that the State did prove

these things in the process of proving the statutorily required elements of evading

detention is irrelevant. We respectfully disagree with the Walker court’s conclusion

to the contrary because its conclusion appears to have rested on what evidence the

State actually presented, rather than on what evidence the State was required to

present, to prove the charged offense.

See Farrakhan, 263 S.W.3d at 139 (emphasis in original, footnotes and citation to authority

omitted).

In Hall, we decided that aggravated assault by threatening another with imminent bodily

injury by displaying a gun was not a lesser-included offense of murder as charged in an indictment,

which, in relevant part, alleged that the defendant caused the death of an individual by shooting him

with a gun. We decided in Hall that the “threatening” and “display” elements of the aggravatedassault lesser offense were not “factsrequired” to establish the charged murder offense even though

“the evidence may show threatening and display.” See Hall, 225 S.W.3d at 536-37. In Hall, we 26
McKithan/Welsh--18

lesser-included-offense analysis, functionally equivalent to threatening that person with imminent

bodily injury by displaying a gun.

stated:

The facts required to prove the lesser offense include two that are not the same as,

or less than, those required to establish the offense charged: threatening and display.

It is true that the evidence may show threatening and display. The evidence may

show a number of other lesser offenses as well, such as disorderly conduct by

discharging a firearm in a public place or across a public road or by displaying a

firearm in a public place in a manner calculated to alarm, unlawfully carrying of

weapon, or unlawful possession of weapon. But those offenses likewise are not

established by the same or less than the proof required to prove the allegations in the

indictment for murder. Aggravated assault by threat, like the other offenses

mentioned, requires proof of additional facts.

See Hall, 225 S.W.3d at 536-37 (emphasis supplied and footnotes omitted).

In Farrakhan, we approved of the court of appeals’s decision that the “fleeing” offense was

not a lesser-included offense of the charged “evading” offense even though proof of the charged

“evading” offense may also have shown the “fleeing” offense. See Farrakhan, 247 S.W.3d at 722-

23; Farrakhan, 263 S.W.3d at 138-39. In Hall, we decided that the aggravated-assault-by-threat

offense was not a lesser-included offense of the charged murder offense even though proof of the

charged murder offense may also have shown the aggravated-assault-by-threat offense. See Hall,

225 S.W.3d at 536-37. These were not lesser-included offenses of the charged offenses in both of

these cases because the State was not required to prove these offenses in establishing the charged

offenses, even though the State’s evidence may have shown them. See id.; Farrakhan, 263 S.W.3d

at 138-39.

Thus, as in Farrakhan and Hall where the facts required to show the charged offenses may
McKithan/Welsh--19

27

See Hall, 225 S.W.3d at 536.

28

These same considerations apply in McKithan’s case since the State’s proof of a “physical

force and violence” indictment allegation in McKithan’s case may also have shown bodily injury and

offensive contact. 

also have shown “a number of other lesser offenses as well,” it is not dispositive that the evidence

27

in Welsh’s bodily-injury-assault case may also have shown offensive-contact assault. Compare

Farrakhan, 263 S.W.3d at 139 (charged offense “did not require the State to prove, for example, that

Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when the suspect is

in a vehicle)”). The relevant inquiry is not what the evidence may show but what the State is

required to prove to establish the charged offense. See Hall, 225 S.W.3d at 536-37 (State not

required to prove threatening and display even though these may be shown by the evidence);

Farrakhan, 263 S.W.3d at 139 (relevant inquiry is based on “what evidence the State was required

to present, to prove the charged offense” and that “the State could and did present evidence” of a

lesser offense “does not mean that the State was required to do so”) (emphasis in original). And, 28

in Welsh’s case, we have decided that the State was not required to prove offensive contact in

establishing the charged bodily-injury-assault offense (even though the State’s evidence may have

shown offensive contact).

The judgments of the courts of appeals in McKithan and in Welsh are affirmed.

Hervey, J.

Delivered: November 10, 2010

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