Texas Assault (§ 22.01) Is ACCA Violent Felony, Even If Reckless

United States v. Espinoza, No. 11-50766 (Sept. 17, 2013) (Stewart, Davis, Wiener)

According to the panel, Texas reckless assault (Texas Penal Code § 22.01) qualifies as a violent felony under the residual clause of the Armed Career Criminal Act because it “involves conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B).  The panel read the Supreme Court’s decision in Sykes to re-iterate that courts must conduct a risk analysis for the ACCA residual clause, since “the residual clause is designed to enhance punishment for offenses that involve a potential risk of physical injury similar to that presented by the offenses enumerated in the ACCA.”  The Begay “purposeful, violent and aggressive” conduct test is merely “a guide-post for analyzing the ACCA’s applicability to crimes that involve strict liability, negligence or recklessness.” 

In the instant case, “[r]eckless assault under § 22.01 requires proof that the defendant consciously disregarded a substantial and unjustifiable risk and in doing so, caused bodily injury to another.”  See Tex. Penal Code § 6.03 (defining recklessness).  So, a Texas assault conviction already incorporates the risk assessment: a substantial risk of causing bodily injury to another.  The panel analogized Texas assault to the ACCA-enumerated offense of burglary because both can end in confrontation leading to violence and “contemplate potential injury.”  “Because reckless assault creates, at a minimum, a similar degree of danger as burglary, we hold that it is a violent felony.”