Marshall v. State
Nos. PD-0509-14 & PD-0510-14
Case Summary written by Kayla Hackerott, Staff Member.
JUDGE KEASLER delivered the opinion of the court, joined by JUDGES JOHNSON, HERVEY, ALCALA, RICHARDSON, and NEWELL. JUDGE YEARY filed a concurring and dissenting opinion, jointed by JUDGE MEYERS, and jointed as to Part I only by PRESIDING JUDGE KELLER. PRESIDING JUDGE KELLER dissented.
The facts were not in dispute in this case. On September 5, 2005, Marshall and his wife, Shawne, began physically fighting. Marshall pushed Shawnee onto the bed where “he straddled her and put a pillow over her face, holding down each side of the pillow.” Shawne testified that while she remained conscious and “never lost the complete ability to breath,” she could not take deep breaths due to the pillow. The jury charge informed the jury that Marshall was guilty if they found:
That the defendant, Patrick James Marshall. . . . did then and there intentionally, knowingly, or recklessly impede the normal breathing or circulation of the blood of Shawne Marshall by blocking the nose or mouth of Shawne Marshall with a pillow, and the said Shawne Marshall was then and there a member of the defendant’s family or household.
Despite the omission of “bodily injury” from the jury charge, Marshall’s counsel did not object. Marshall was convicted under Penal Code § 22.01, felony assault against a family member.
On appeal, Marshall argued that the state was relieved from their burden of proving every essential element by omitting “bodily injury” from the charge, thus allowing the jury to find Marshall guilty without finding he caused bodily injury. He further argued that the evidence was insufficient to support the jury’s verdict. The court of appeals rejected the insufficient evidence claim, yet they “agreed that the jury charge was erroneous, found the error resulted in egregious harm, vacated the conviction, and remanded for a new trial.”
Issues: Whether the jury’s verdict was sufficiently supported by the evidence, and “whether omitting bodily injury from the jury charge’s application portion caused egregious harm”?
Egregious Harm.
If an error in the jury charge is found, there are different standards of review depending on if the defendant timely objected to the instructions. When the defendant fails to timely object, reversal occurs if the error caused egregious harm, resulting in an unfair and biased trial. Several factors are used to determine whether the error is egregious: (1) the entirety of the jury charge itself, (2) the state of the evidence, (3) counsel’s arguments, and (4) any other relevant information revealed by the entire record. Courts must examine “the relevant portions of the entire record to determine whether appellant suffered actual harm.”
According to §22.01:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse
. . .
(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:
. . .
(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:
. . .
(B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth . . . .
Bodily injury is defined as any physical pain, illness or impairment of physical condition, which includes hindering a person’s ability to breath. According to Black’s Law Dictionary, impairment is defined as a damaged, weakened, or diminished condition.
The court found that while the charge omitted “bodily injury,” the jury had to find Marshall impeded the breathing of Shawne, which constituted an actual bodily injury, bodily injury per se. The jury in this case found that Marshall impeded Shawne’s breathing by holding the pillow over her face. Thus, the court overruled the court of appeals’ holding that Marshall suffered egregious harm.
Legal Sufficiency.
The evidence must be viewed in the light most favorable to the jury verdict. Based on the evidence, the court had to determine “whether a rational jury could find all the requisite elements beyond a reasonable doubt.” During trial, Shawnee testified that she was unable to take deep breaths due to the pillow over her head, and while she never lost consciousness, her breathing was hindered. The court held the evidence was sufficient for a reasonable jury to find that Marshall impeded Shawne’s normal breathing.
JUDGE YEARY filed a concurring and dissenting opinion.
Judge Yeary dissented because he believed the jury charge error, which he found using a different method, caused Marshall egregious harm. Judge Yeary concurred that the evidence was legally sufficient, however, he reached the conclusion using a different rationale.
Jury Charge Error.
Judge Yeary rejected the court’s finding that impeding Shawne’s breathing constituted bodily injury per se. According to Judge Yeary, impeding the normal breathing of an individual is a description of the type of conduct, or method, used to reach the result of causing a bodily injury. Thus, while a jury could find a defendant impeded a person’s breathing, it still must find that that method actually caused bodily injury, by finding that the method used caused “physical pain, illness, or any impairment of physical condition.” According to Judge Yeary, “an impediment [such as to a person’s breathing] does not necessarily amount to an impairment.” Judge Yeary explained that while a person’s breathing can be impeded, if the hindrance is removed, the person’s “trachea and lungs will ordinarily resume their normal functions immediately, ‘unimpaired.’”
Egregious Harm.
According to Judge Yeary, to determine egregious harm, the court must determine “whether it is likely that the jury could have convicted [Marshall] simply for impeding Shawne’s normal breathing momentarily, without ever going on to ask itself whether that impediment was sufficiently protracted, or occurred with sufficient force, as to cause ‘bodily injury,’” defined as physical pain or an impairment of physical condition. The court of appeals found on multiple occasions the prosecutor informed the jury that all the State had to prove for a guilty verdict was that Marshall impeded Shawne’s breathing by blocking her nose and mouth with the pillow. Judge Yeary explained that the evidence did not demonstrate that Marshall caused Shawne any pain, or any impairment of physical condition by impeding her breathing. Thus, according to Judge Yeary, because the jury most likely convicted Marshall based on the evidence that he impeded Shawne’s breathing, without finding it caused pain or impairment, the jury charge caused Marshall egregious harm.
Legal Sufficiency.
The evidence pointed out that before Marshall impeded Shawne’s breathing with a pillow, he briefly strangled her. Judge Yeary determined that “under the indictment and jury charge in this case, . . . strangulation would have been an available alternative theory by which a rational jury could have convicted [Marshall] under a hypothetical jury charge.” The indictment alleged that Marshall “impeded the normal breathing or circulation of the blood of Shawnee Marshall by blocking the nose or mouth of Shawne Marshall with a pillow.” The application paragraph of the jury charge also included the theory of strangulation. According to Judge Yeary, a rational jury could infer that strangulation, no matter how brief, could cause physical pain.