NUMBER 13-26-00057-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
PATRICK ANTHONY CURRIE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 221ST DISTRICT COURT
OF MONTGOMERY COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Justice Silva
Appellant Patrick Anthony Currie was convicted of assault family violence by
impeding breath or circulation, a third-degree felony enhanced by his habitual felony
offender status. See TEX. PENAL CODE §§ 12.42(d), 22.01(b)(2)(B). On appeal, Currie
solely contends the trial court abused its discretion by denying his request for a jury
instruction on the lesser-included offense of misdemeanor assault family violence. We affirm.
I. BACKGROUND 1
On November 6, 2025, Currie was charged in a superseding indictment for
committing the above-referenced offense. The superseding indictment contained two
enhancement paragraphs alleging that he was previously convicted of two felony
offenses. A jury trial commenced on November 17, 2025, and Currie proceeded with his
case pro se. At trial, Caitlin Mayberry testified that at the time Currie physically assaulted
her she was in a dating relationship with him. She further testified that during the assault
he impeded her ability to breathe by placing his forearm around her neck.
Before the State rested its case-in-chief, the trial court conducted a charge
conference outside the presence of the jury and the following exchange occurred:
[Currie]: I would just like [to] add a couple things, a lesserincluded, if impeding breath cannot be proven, of
assault and—
THE COURT: You are supposed to write it out and ask me to put in
whatever—you need to tell me what you want me to
put in and where you want me to put it, and then, I will
let the State respond, but I have this down. So, we will
discuss this later. We are not at the point where we are
charging the jury.
THE COURT: What says the State on the lesser[-]included?
[The State]: The Court can correct me if I’m wrong, but assault
family violence misdemeanor is not a lesser of assault
family violence strangulation. So, [the State] would
1 This case is before the Court on transfer from the Ninth Court of Appeals pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3.
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object to it being in the jury charge.
THE COURT: It’s not, and I haven’t heard anything that would warrant
that at this time.
[Currie]: If the elements of impeding breath cannot be proven,
would that not lead to the lesser of assault?
THE COURT: No, not necessarily, because it’s a separate offense.
Not every offense is a lesser included of another
offense. It’s kind of a complicated area of the law, but I
will look at it and your request and I understand why
you brought it up. That’s, actually, a very fair thing for
you to say. In fact, I’m impressed that you have done
your homework and looked at it. So, I think that’s—
normally, I would say that it would be, but I don’t think,
in this situation, it is, but I’m going to have to look at it
and see.
After both parties rested, the trial court asked the parties whether they had any
objections to the proposed jury charge, and Currie responded, “No objection.” 2 The jury
returned a guilty verdict, and Currie elected for the trial court to impose his sentence.
Currie pleaded true to the State’s two enhancement paragraphs, and the trial court found
them to be true and sentenced him to fifty years’ imprisonment. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
A. Charge Error
“The purpose of the trial court’s jury charge is to instruct the jurors on all of the law
applicable to the case.” Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015);
see TEX. CODE CRIM. PROC. art. 36.14. In analyzing an alleged jury charge error, our first
duty is to determine whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.
2 We note that the record before us does not indicate that the trial court ruled on Currie’s request
for a lesser-included offense instruction; however, the final jury charge did not include said instruction.
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App. 2005). If we find error, we then analyze that error for harm. Reed v. State, 680
S.W.3d 620, 625 (Tex. Crim. App. 2023). The degree of harm necessary for reversal
depends on whether the error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex.
Crim. App. 2020) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985));
Hernandez v. State, 533 S.W.3d 472, 481 (Tex. App.—Corpus Christi–Edinburg 2017,
pet. ref’d).
If there is error and the defendant preserved the alleged error, then we must
reverse if we find “some harm.” Jordan, 593 S.W.3d at 346; Almanza, 686 S.W.2d at 171.
But when the jury charge error is not preserved, the Court will reverse only upon a
showing of “‘egregious harm,’ which occurs when the error created such harm that the
appellant was deprived of a fair and impartial trial.” Chambers v. State, 580 S.W.3d 149,
154 (Tex. Crim. App. 2019) (citing Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim.
App. 2015)); Almanza, 686 S.W.2d at 171. “Errors that result in egregious harm are those
that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally
affect a defensive theory.’” Gonzalez v. State, 610 S.W.3d 22, 27 (Tex. Crim. App. 2020)
(quoting Ngo, 175 S.W.3d at 743). When considering whether a defendant suffered
egregious harm, we must consider: (1) the entire jury charge; (2) the state of the
evidence, including the contested issues and weight of probative evidence; (3) the
argument of counsel; and (4) any other relevant information revealed by the record of the
trial as a whole. Id.; Almanza, 686 S.W.2d at 171.
B. Lesser-Included Offense
Courts generally use a two-pronged test to determine whether a defendant is
entitled to a jury charge instruction on a lesser-included offense. Chavez v. State, 666
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S.W.3d 772, 776 (Tex. Crim. App. 2023). The first step of the analysis asks the purely
legal question of whether the lesser-included offense is included within the proof
necessary to establish the offense charged. Id.; see TEX. CODE CRIM. PROC. art. 37.09. If
that prong is satisfied, the second step is to determine whether there exists “evidence
from which a rational jury could find the defendant guilty of only the lesser offense.”
Chavez, 666 S.W.3d at 776. Anything more than a scintilla of evidence will be sufficient
to entitle a defendant to a charge on the lesser offense. Id. Meeting this threshold requires
more than mere speculation—it requires affirmative evidence directly germane to the
lesser-included offense that provides the lesser-included offense as a valid, rational
alternative to the greater offense. Id. “[I]t is not enough that the jury may disbelieve crucial
evidence pertaining to the greater offense, but rather there must be some evidence
directly germane to the lesser-included offense for the finder of fact to consider before an
instruction on a lesser-included offense is warranted.” Ransier v. State, 670 S.W.3d 646,
650 (Tex. Crim. App. 2023) (alteration in original) (quoting Bullock v. State, 509 S.W.3d
921, 925 (Tex. Crim. App. 2016)).
A person commits felony assault family violence by impeding breath or circulation
if the person intentionally, knowingly, or recklessly impedes the normal breathing of a
person by applying pressure to the person’s throat or neck or by blocking the person’s
nose or mouth. See TEX. PENAL CODE § 22.01(b)(2)(B); Ortiz v. State, 623 S.W.3d 804,
805 (Tex. Crim. App. 2021) (referring to Section 22.01(b)(2)(B) as “occlusion assault”).
On the other hand, a person commits misdemeanor assault family violence by
intentionally, knowingly, or recklessly causing bodily injury to another person. TEX. PENAL
CODE § 22.01(a)(1). For assault to be a family violence offense, the victim must be a
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person whose relationship to or association with the defendant is described by Sections
71.0021(b), 71.003, or 71.005 of the Texas Family Code, which includes, as relevant
here, a dating relationship. TEX. FAM. CODE §§ 71.0021(b), 71.003, 71.005.
III. ANALYSIS
Currie argues “that misdemeanor assault family violence is established by proof of
the same or less than all the facts required to prove the charged felony.” He points out
the jury could have rationally found he “caused bodily injury to a dating partner
(misdemeanor) without finding that he applied pressure to her throat or neck (felony).” He
asserts that “[w]ithout the lesser-included option, the jury faced a binary choice—convict
of the felony or acquit entirely—even though the evidence permitted a middle ground.”
Contrary to his contentions, however, the Texas Court of Criminal Appeals
provides direct guidance on whether the lesser-included offense of bodily injury assault
is included within the proof necessary to establish the offense Currie was alleged to have
committed—assault family violence by impeding breath or circulation. See Ortiz, 623
S.W.3d at 805. Notably, “bodily-injury assault is not a lesser-included offense of occlusion
assault when the disputed element is the injury because the statutorily specified injury of
impeding normal breathing or blood circulation is exclusive of other bodily injuries.” Id.
The Ortiz court reasoned that “non-impeding injuries are not included in occlusion assault
because they are not proven by the same or less facts than required to prove occlusion
assault; they are proven by different, additional facts.” Id. at 808–09.
Here, Currie is primarily challenging the element concerning Mayberry’s injury.
Because of this, misdemeanor assault family violence does not qualify as a lesserincluded offense of felony assault family violence by impeding breath or circulation. See
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id. at 805. 3 Thus, Currie’s requested instruction is not legally plausible because it is not
included within the proof necessary to establish the offense of which he was charged.
See id. at 810 (“Occlusion assault’s focus on a narrowly defined injury forecloses an
instruction on an assault that results in a different injury.”); Chavez, 666 S.W.3d at 776.
Consequently, we need not address the remaining prong of the lesser-included offense
analysis. See Chavez, 666 S.W.3d at 776.
In this regard, the trial court was not required to instruct the jury on the requested
instruction where the conduct establishing the lesser-included offense is not included
within the conduct charged. See Irving v. State, 176 S.W.3d 842, 846 (Tex. Crim. App.
2005). Accordingly, the trial court did not commit error when it denied Currie’s request
that a lesser included offense instruction for misdemeanor assault family violence be
included in the jury charge. Ngo, 175 S.W.3d at 743. We overrule Currie’s sole issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
21st day of August, 2026.
3 We note that there may be an instruction for a lessor-included offense of misdemeanor assault
in an occlusion assault case under very specific circumstances that are not present here. For instance, “if the relationship is at issue, then an instruction on misdemeanor assault may be warranted.” Ortiz v. State, 623 S.W.3d 804, 808 (Tex. Crim. App. 2021); see, e.g., Garcia v. State, No. 07-23-00420-CR, 2024 WL 3682792, at *3 (Tex. App.—Amarillo Aug. 6, 2024, pet. ref’d) (mem. op., not designated for publication) (finding the first prong of lesser-included analysis satisfied because appellant raised an issue about the relationship between himself and the victim).
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