Is Texas Injury to a Child a Crime of Violence? The Fifth Circuit Said No

Update (October 2026): Two later changes limit this decision's reach. First, the Sentencing Commission rewrote the illegal reentry guideline, § 2L1.2, effective November 1, 2016. It now bases most increases on the length of the prior sentence, not on whether the prior was an "aggravated felony." Second, in Sessions v. Dimaya, 584 U.S. 148 (2018), the Supreme Court struck down the "crime of violence" definition in 18 U.S.C. § 16(b) as unconstitutionally vague. The case still shows how the categorical approach and Mathis work.

The Fifth Circuit held that a Texas conviction for injury to a child under Texas Penal Code 22.04(a)(3) was not an aggravated felony for federal sentencing, applying Mathis v. United States. The court reversed the enhanced sentence.

Raul Martinez-Rodriguez received an eight-level increase under the illegal reentry sentencing guideline, § 2L1.2(b)(1)(C) (2014), because of that prior conviction. The question was whether it was a "crime of violence" under 18 U.S.C. § 16(b).

How Courts Compare a Prior Conviction to a Federal Definition

Courts answer that kind of question in one of two ways:

• The categorical approach: the court looks only at the elements of the crime, the parts the government must prove, not at what the person actually did.
• The modified categorical approach: the court can also look at certain court records, such as the charging document or plea agreement, to see which version of a crime the person was convicted of.

The categorical approach is usually better for the defendant.

As the Fifth Circuit explained:

To determine whether a prior conviction constitutes a generic offense, such as a crime of violence and thus an aggravated felony, this court generally employs the categorical approach – the focus of which is on the elements of the offenses, not the underlying facts of the prior conviction. So long as the relevant statutes state a single, or indivisible, set of elements, application of the categorical approach is a rote exercise. Courts simply line up the elements of the two offenses to determine whether they match. If the elements of the prior offense are the same or narrower than those of the generic offense, then it qualifies for whatever consequences under federal law attach to the generic offense. However, if its elements are broader, then the prior offense is not treated as an equivalent to the generic offense.

In plain terms: if the prior crime's elements are the same as or narrower than the federal definition, it counts. If they are broader, it does not.

Elements vs. Means Under Mathis

A statute that lists elements in the alternative ("this or that") is divisible, meaning it really contains several different crimes. Only then can the court use the modified categorical approach. In a plea case, the court may then look at "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." So, unlike the categorical approach, which looks at elements only, the modified approach makes some underlying facts relevant.

In Mathis, the Supreme Court explained how to tell. The approach applies only to statutes that list alternative elements, not alternative means (different ways of committing the same element). The difference is critical. As the Fifth Circuit summarized it, "The test to distinguish means from elements is whether a jury must agree." "Elements must be agreed upon by a jury. When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense not an element of the offense." The sentencing court "has no call to decide which of . . . alternative means was at issue in an earlier prosecution." According to Mathis, the means-versus-elements question is often easy, because federal courts follow definitive state court rulings on it.

The Fifth Circuit's Ruling

Applying Mathis, the Fifth Circuit reversed:

We find that the Texas Court of Criminal Appeals has answered this precise question by concluding that the Texas Legislature intended the "act or omission" language in § 22.04(a) to "constitute the means of committing the course of conduct element of injury to a child" rather than elements of the offense "about which a jury must be unanimous." Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006); see also Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007) (holding, for purposes of double jeopardy, that the act and omission components of Tex. Penal Code § 22.04(a) "were simply two means of alleging and/or proving the same offense . . . ."). Accordingly, our analysis must rest upon those definitive state law decisions. Therefore, we too conclude that § 22.04(a) is an indivisible statute, as a result of its alternative components being means and not elements. As such, the modified categorical approach should have played no role in the district court's sentencing decision. Furthermore, because the offense of causing injury to a child is broader under the Texas statute than a crime of violence, the sentencing court erred when, without the benefit of Mathis, it considered more than statutory elements to discern the means by which Martinez-Rodriguez committed the offense, for purposes of enhancement under U.S.S.G. § 2L1.2(b)(1)(C) (2014) and sentencing under 8 U.S.C. § 1326(b)(2).

In short, the statute is indivisible, so the modified categorical approach did not apply. Because the Texas offense is broader than a crime of violence, the enhancement was wrong.

See United States v. Martinez-Rodriguez, 857 F.3d 282 (5th Cir. 2017), No. 15-41688.

Prior-conviction enhancements turn on the exact statute and state court rulings, so the details matter. If a PSR (presentence report) uses an old state conviction to raise a range, get the charging document and judgment from that state case and have your lawyer compare the statute's elements to the federal definition.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.