### 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. 03-15-00223- CV

In re The State of Texas ex re l. Jennif er A . Tharp

ORI GINAL P ROCEEDI NG F ROM CO MAL CO UNTY

D I S S E N T I N G O P I N I O N

For the re asons that follow, I respe ctfully

dissent from the majority ’s opinion. Wit hout question, the relief reque sted by the State in this case can only be descr ibed

as extraordinary

. I n fac t, when discussing the possibili t y t h at an appellate court might interce de into the proce eding s of an ong oing criminal trial in or der to c orre ct jury -cha rg e err or, J ustice Price from the court of criminal appeals ex p l ained that allowing this ty pe of judicial oversig ht can only open the door to appellate interfe renc e in a host of other decisions m ade by the trial court in a criminal proce eding

. In re State ex rel. W eek s , 391 S.W .3d 117, 126-27 (Tex. Crim. App. 2013) (orig. procee ding) (Price, J ., dissenting) (noting that opening this appellate doorwa y could l ead t o mandamus revie w of evidentiar y deter minations, ruling s on reque sts for continuance s, and decisions reg arding defe ndant’s right t o counsel). Moreove r, he stated t hat allowing appellate courts to use their ma n d a mu s a u th o rity to conduct an end run around the statutory prohibition g ener ally forbidding the State from appea ling judicial ruling s in criminal proce edings would usurp the leg islature’s ultimat e au t h o ri t y to decide what ty pes of case s are indeed appea lable. Id. at 127-28 (discussing Sta t e ex r el

. Healey v. McM eans , 884 S.W .2d 772, 778 (Tex. Crim. App. 1994) (Mey ers, J .,dissenting) ). These conce rns seem all the more problematic to me g iven that the ty pe of mandamus revie w that could be perf ormed of an ong oing trial wi l l be signific antly hamper ed by the limit ed

rec ord that is available in a mandamus proc eeding from which a decision is to be made. Howeve r, the court of criminal appea ls has in clea r terms mandated that the State has the rig ht to mandamus relief conce rning a jury char g e “whe n the fac ts and circ umstances dictate but

one rational decision ‘under unequivoca l, well-settled (i.e., from extant statutory , constitutional, or
case law sources), and clea rly controlling leg al principles.’” Id. at 122 (quoting Bowen v. Carnes , 343 S.W .3d 805, 810 (Tex. Cr i m . Ap p . 2 0 1 1 )). Moreove r, the court explained that this ty pe of

reme dy is neede d, in part, beca use the State has no adequate reme dy by appea l to challeng e the trial court’s ruling

. Id. at 123. For the rea sons that follow, I believe that the require ments for mandamus revie w of a

jury char g e as ide ntified by

the cour t of criminal appe als are satisfied in this case. During the ch ar ge conferenc e, S.M. reque sted that the char g e include the lesser included offe nse of assault, and the trial court g rante d that reque st. As a result, the jury char g e contained ins t ru ct i o ns for the offe nses of murder, manslaug hter, and assault. I n rele vant part, the P enal Code provides that an individual is g uilty of assault if he “intentionally , knowing ly , o r
rec klessly cause s bodily injury to another .” T ex . P enal Code § 22.01(a) (1). Fur ther, the Code define s “[b] odily inj ury ” as “phy sical pain, illness, or any impairment of phy sical condition.” Id. § 1

. 0 7 ( a ) ( 8 )

. H o w e v e r , th e Pe n a l Co d e a ls o d is ti n g u is h e s b o d il y in

ju r y f r o m “ [s ]e r io u s b o d il y in

ju r y ”

as that term is used in the statutes g overning ag g rava ted assault and murder. See id. § 1.07(a) (46); see also id. §§ 19.02(b) ( providing that person c ommits murder if he intentionally

cause s death of another person or “intends t o cause serious bodi ly inj u ry and commit s an act clea rly dang erous to

2human l i fe t h at cause s the death of an individual”), 22.02 (explaining that person commits

ag g rava ted assault if he commits assault and “ca uses serious bodily injury to another ”). I n particula r, the Code define s “[s] erious bodily injury ” as me aning “bodily injury that cre ates a substantial r isk of death or that cause s death, serious perma nent disfigur ement, or protrac ted loss or impairment of the func tion of any

bodily member or

org an.” Id. § 1.07(a) (46). I n t h i s ca s e, acc ording to the limit ed rec ord provided to this Court, the evidenc e establishes that S.M. punched L .D. twice in the fac e and that those strikes resulted in L .D.’s death. Acc ording ly , reg ardle ss of what the evidenc e might show S.M. i ntended to do, the jury cannot rationally conclude that S.M. inflicted mere bodily injury

. Cf. Ferrel v. State , 55 S.W .3d 586, 591 (Tex. Crim. App. 2001) (explaining that beca use evidenc e established that defe ndant cause d serious bodily injury , “a rea sonable jury could not have found [defendant] g uilty only of mis demea nor assault”)

. For that rea son, I believe that the fac ts and circ umstances of this case under unequivoca l,

we l l -settl ed, and controlling leg al principles dictate that S.M. is not entitled to an instruct i o n fo r assault and that the trial court abused its discretion by including the assault instruction within the jury char g e. See W

eek s , 391 S.W .3d at 122; see a l s o De Jarnette v. State , 706 S.W .2d 680, 682 (Tex. App.—Houston [14t h Dist.] 1986) (conc luding that “a char g e on the m i s d em eanor assault
was not raised by the evidence because the complainant sustained se rious bodily injury as a r esult of t he assault”), aff’d on other grounds , 732 S.W .2d 346 (Tex. Crim. App. 1987). Acc ording ly , I would g rant mandamus relief in this case and order the trial court to remove the assault instruction from the c harg e.

For the re asons g iven above , I respe ctfully

dissent from the majority ’s opinion.

3__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Filed: Apr il 23, 2015

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