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Texas Injury To A Child Not A Crime Of Violence Under Mathis

A Texas injury to a child conviction under Texas Penal Code 22.04(a)(3) is not an aggravated felony under the sentencing guidelines any longer in light of Mathis v. United States.

Raul Martinez-Rodriguez received an eight level enhancement under § 2L1.2(b)(1)(C) based on a prior Texas injury to a child conviction. In determining whether Martinez-Rodriguez’ Texas injury to a child prior constitutes an aggravated felony, the Fifth Circuit applied the generic definition of “crime of violence” found in 18 U.S.C. § 16(b).

The assessment of whether a prior is a “crime of violence” can take two routes. (1) the categorical approach or (2) modified categorical approach. With the modified categorical approach, courts are only able to look at the elements of the offense—not the underlying facts of the conviction. With the modified categorical approach, courts can look at certain conviction documents to determine whether the prior qualifies as a crime of violence. The categorical approach is usually more defendant friendly.

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.

If a statute sets forth elements in an alternative or disjunctive structure, it is considered divisible, and a second approach is available to the courts. Known as the modified categorical approach, this approach allows a court to pare down a prior conviction under a divisible statute by consulting certain materials such as, in the case of a plea bargain, “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.” Thus, unlike the categorical approach which concerns elements only, underlying facts are relevant to the modified categorical approach.

In Mathis v. United States, the Supreme Court provided guidance on when a statute is divisible and, thus, when the modified categorical approach is available. It clarified that the approach is to be applied only to statutes that list alternative elements and not to statutes that list alternative means of satisfying elements. The distinction between the elements and means is critical to the divisibility of a statute. “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.” Ultimately, “the court has no call to decide which of . . . alternative[ ] [means] was at issue in [an] earlier prosecution.” According to Mathis, a determination of means versus elements is often easy to make, as federal courts are to follow definitive state court decisions on the issue.”

Applying the Mathis framework to Martinez-Rodriguez’ case, 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, 289 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).”

See: United States v. Matinez-Rodriguez, No. 15-41688 (5th Cir. 2017).

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist.Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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