CASTRO v. STATE (2025)

Petition for discretionary review refused.

The Court today refuses Appellant's petition for discretionary review, and I ultimately concur in that disposition. I agree with the Court that review should not be granted in this case. The penal statute at issue in this case is relatively new, however, and I write further to point out that, at some point, the Court may find it appropriate to weigh in on the question of what lesser-included offenses might be embraced within its elements. But for several reasons, this is not the most propitious case in which to address that question, as I shall explain.

I. Background

A. At Trial

Appellant was charged by information under the terms of the Class A misdemeanor offense of Indecent Assault, under Section 22.012(a)(2) and (b) of the Texas Penal Code. Tex. Penal Code § 22.012(a)(2), (b).¹ The information alleged that he “did ․, with the intent to arouse or gratify the sexual desire of [Appellant], touch ․ the complainant, with part of the genitals of [Appellant], and [Appellant] acted without the complainant's consent.” At trial, it was shown that the 18-year-old complainant was working as a lifeguard at a swimming pool in the city of Lubbock when Appellant, whom the complainant did not know, approached her from behind and told her he was “going to make [her] wet[.]” He then placed his hand on her back, and he began to rub his erect penis against her buttock and leg. This persisted for “[a]bout two minutes[,]” without the complainant's consent, who had understandably frozen in fear and confusion. Both Appellant and the complainant were wearing bathing suits at the time.

Appellant's counsel did not seriously contest that Appellant had indeed acted in this lascivious way. But counsel requested an instructed verdict at the conclusion of the State's evidence in which he argued that Appellant could not have committed the charged offense because his penis “touched” the complaint only indirectly, through his bathing suit. When the trial court refused to direct the jury's verdict as requested, Appellant asked for a lesser-included offense instruction in the jury charge that would have permitted the jury to convict Appellant, instead, of the lesser Class C misdemeanor offense of simple assault by offensive touching, under Section 22.01(a)(3) of the Texas Penal Code. See Tex. Penal Code § 22.01(a)(3) (“A person commits an offense if the person ․ intentionally or knowingly causes physical contact with another when the person knows or reasonably should believe that the other will regard the contact at offensive or provocative.”); id. Subsection (c) (making an offense under Subsection (a)(3) a Class C misdemeanor). The trial court denied this requested lesser-included offense instruction, and the jury returned a guilty verdict for the charged offense in nine minutes.

B. On Appeal

One might reasonably have predicted, given Appellant's defensive posture at trial, that he would challenge the legal sufficiency of the evidence to support his guilt. But he did not—perhaps because, within only a few months of his trial but before he filed his appellate brief, several courts of appeals in Texas (apparently for the first time) concluded that the touching that is prohibited by Section 22.012 need not be “skin-on-skin” before it may support a conviction. Edwards v. State, No. 05-23-00169-CR, 2024 WL 4879683, at *3−4 (Tex. App.—Dallas Nov. 25, 2024, no pet.) (mem. op., not designated for publication); Istfanous v. State, No. 02-24-00164-CR, 2025 WL 2264200, at *3−4 (Tex. App.—Fort Worth Aug. 7, 2025, no pet.) (mem. op., not designated for publication). Instead, in his only point of error on appeal, Appellant argued that the trial court erred by refusing his request for the lesser-included offense instruction.

The court of appeals affirmed Appellant's conviction in a published opinion. Castro v. State, 717 S.W.3d 928 (Tex. App.—Amarillo 2025). It concluded that “the elements of assault are different, not less than, the elements of indecent assault.” Id. at 932. Apparently focusing on Texas Code of Criminal Procedure Article 37.09(3),² and relying upon a Waco Court of Appeals opinion in Shea v. State, 167 S.W.3d 98, 105 (Tex. App.—Waco 2005, pet. ref'd), the court of appeals observed: “The element of ‘the actor intentionally or knowingly caused physical contact’ needed to establish assault is different, not less, than the mental state required to establish indecent assault.” Castro, 717 S.W.3d at 933. On this basis, the court of appeals concluded that the trial court acted within its discretion to refuse Appellant's lesser-include offense instruction. Id.

C. On Discretionary Review

As he did in his appellate brief, in his petition for discretionary review Appellant focuses his attention on a different Subsection of Article 37.09. He argues that offensive/provocative contact assault constitutes a lesser-included offense of indecent assault because “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Appellant's Petition for Discretionary Review at 4 (quoting Tex. Code Crim. Proc. art. 37.09(1)). The entire gist of his argument appears in one conclusory sentence: “Appellant contends that the elements of the offenses are sufficiently analogous to require a charge on a lesser included offense.” Id. at 5. He acknowledges that this Court “refused discretionary review on a similar argument in Shea v. State, supra.” Id. at 6. But he does not attempt to invoke any other subsection of Article 37.09 as authority for his requested lesser-included offense instruction, nor does he elaborate further to explain what about the elements of the two offenses makes them “sufficiently analogous” for purposes of Article 37.09(1).

II. Analysis

The Court has said that the determination of whether a requested lesser-included offense is warranted involves a two-step process. E.g., Safian v. State, 543 S.W.3d 216, 219 (Tex. Crim. App. 2018). The first step echoes Article 37.09(1): It asks whether the lesser offense is included within the proof necessary to establish the charged offense. Id. at 219−20. This is a purely legal inquiry, which does not depend upon the evidence produced at trial. Id. at 220. The second step, the Court has said, asks whether there is evidence in the record from which a rational jury could conclude that, if the defendant is guilty at all, he is guilty only of the lesser offense. Id. According to this Court's precedents, both steps must be satisfied.

The first step of the Court's preferred analysis, compares the elements of the charged greater offense, as pled in the indictment or information, to the statutory elements of the requested lesser-included offense. Id. If the pleading for the charged offense explicitly alleges all the elements of the lesser-included offense, the first step is satisfied. Id. But there is a second way to satisfy the first step, according to the Court: namely, if the pleading for the greater offense “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.” Id. (quoting Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh'g)). This second way entails what the Court has called “the functional equivalence test.” Id. “And by ‘functional equivalent,’ [the Court has] meant that the language of the indictment explicitly operates to commit the State to prove the greater offense in such a way that it will also necessarily prove the element required by the statute defining the lesser offense.” State v. Meru, 414 S.W.3d 159, 170 (Tex. Crim. App. 2013) (Price, J., concurring).

When Appellant argues in his petition for discretionary review in this case that the elements of indecent assault and offensive/provocative contact assault are “sufficiently analogous,” perhaps he means to invoke the Court's “functional equivalence test.” But he fails to invoke it explicitly, much less does he attempt to explain at all how, in his view, the non-consensual touching of another with one's sexual organ, and with lascivious intent, necessarily includes causing physical contact with at least an awareness that such contact will be deemed offensive or provocative. Certainly, such an argument might plausibly have been made. And I am not at all sure we would have rejected such an argument once it had been fully formed. But I do not blame the Court today for refusing to grant a petition for discretionary review that seems content to leave all the heavy analytical lifting to us, as Appellant's does.

Indeed, I can imagine other substantial arguments that might have been made in this case that might have called for this Court's attention. For example, I am not at all certain the court of appeals was correct in this case to conclude that offensive/provocative contact does not “differ” from non-consensual lascivious touching “only in the respect that a less culpable mental state suffices to establish its commission.” Tex. Code Crim. Proc. art. 37.09(3). It might have plausibly been argued that evidence of non-consensual lascivious touching will always—“necessarily”—also establish the elements of knowingly offensive or provocative physical contact for purposes of the lesser-included assault statute. A more robust petition challenging the court of appeals’ conclusion regarding the respective culpable mental states, premised on the Court's functional equivalence test, might have fairly presented that question.

And that is not all. It might even have been argued, under the Court's functional equivalence test, that Appellant was entitled to the lesser-included offense instruction because offensive/provocative contact “differs” from non-consensual lascivious touching “only in the respect that a less serious injury to the same person ․ suffices to establish its commission[.]” Tex. Code Crim. Proc. art. 37.09(2). But Appellant does not press that argument in his petition for discretionary review either; and I do not propose that we should tackle it unsolicited here.

In the final analysis, moreover, it seems doubtful that Appellant could satisfy the second step of the lesser-included offense analysis in any event. It is hard to imagine on the facts of this case how the jury could have found a rational basis to conclude that Appellant was guilty only of the lesser offensive of offensive/provocative contact. Nor is it at all certain that the court of appeals, had it found error in the trial court's failure to give Appellant's requested lesser-included offense instruction, would have concluded that there was even “some” harm under an appropriate Almanza harm analysis.³

After all, the only aspect of the charged offense that Appellant challenged at trial was whether his lascivious penile contact with the complainant constituted “touching” at all (because not exactly skin-to-skin) under the Indecent Assault statute. He did not otherwise protest his innocence of the greater offense. So, granting discretionary review in this case would not likely change the bottom line even if we were to agree that Appellant satisfied the first step of the Court's lesser-included offense analysis.

III. Conclusion

At some future point the Court may be called upon to address the relationship between the Class A misdemeanor offense of indecent assault and the Class C misdemeanor offense of offensive/provocative contact. But, for the reasons expressed herein, the Court does well to wait for a better case in which to do so. I concur in the decision to refuse discretionary review.

FOOTNOTES

1.   Under Subsection (a)(2) of the statute, “[a] person commits an offense if, without the other person's consent and with the intent to arouse or gratify the sexual desire of any person, the person ․ touches another person with the anus, breast, or any part of the genitals of any person[.]” Tex. Penal Code § 22.012(a)(2). Prior to September of 2023, Indecent Assault was categorically a Class A misdemeanor. Appellant was alleged to have committed the offense in June of 2023. But even under Subsection (b) of Section 22.012 as amended in 2023, effective September 1, 2023, Appellant's conduct as alleged and proven at trial would constitute a Class A misdemeanor. Acts 2023, 88th Leg., ch. 659, § 1, p. 1609, eff. Sept. 1, 2023.

2.   Subsection (3) of Article 37.09 provides that “[a]n offense is a lesser included offense if ․ it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission.” Tex. Code Crim. Proc. art. 37.09(3).

3.   Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).