from the United States District Court for the Southern
District of Texas
KING, ELROD, and GRAVES, Circuit Judges.
WITHDRAW our prior panel opinion and SUBSTITUTE this opinion.
Jose Prisciliano Gracia-Cantu appeals the district
court's determination that a conviction under Texas Penal
Code §§ 22.01(a)(1) and (b)(2) for "Assault -
Family Violence" qualifies as a crime of violence under
18 U.S.C. § 16, and is therefore an aggravated felony
for purposes of 8 U.S.C. § 1101(a)(43)(F) and U.S.S.G.
§ 2L1.2(b)(1)(C). Consistent with our recent en
banc decision in United States v.
Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc),
we hold that a conviction under Texas Penal Code §§
22.01(a)(1) and (b)(2) falls within the definition of a crime
of violence under 18 U.S.C. § 16(a). We therefore AFFIRM
16(a) defines a "crime of violence" as "an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another." 18 U.S.C. § 16(a). We
recently explained en banc that this definition does
not include a "directness-of-force requirement."
Reyes-Contreras, 910 F.3d at 183. Even indirect
applications of force will do. Instead, all that this
definition requires is that the statute of prior conviction
criminalize only conduct that: (1) is committed
intentionally, knowingly, or recklessly; and (2)
"employs a force capable of causing physical pain or
injury"; (3) against the person of another. Id.
at 183, 185; see also United States v. De La Rosa,
No. 17-10487, 2019 WL 177958, at *3 (5th Cir. Jan. 11, 2019)
"Assault - Family Violence" fits the bill. First,
the statute requires that the offense be committed
"intentionally, knowingly, or recklessly." Tex.
Penal Code § 22.01(a)(1). Second, the statute requires
that the defendant "cause bodily injury,"
id., which is defined as "physical pain,
illness, or any impairment of physical condition,"
id. § 1.07(a)(8). Third, the statute requires
that the injury be caused to "another,"
id. § 22.01(a)(2)-specifically, against a
family member, as defined by certain provisions of the Texas
Family Code, id. § 22.01(b)(2). This statute
therefore meets the definition of a "crime of
violence" under § 16(a). See also United States
v. Gomez, 917 F.3d 332, 334 (5th Cir. 2019) (holding
that aggravated assault-which shares the same predicate
offense, simple assault, as the statute in the instant
case-is a "crime of violence" under § 16(a));
De La Rosa, 2019 WL 177958, at *3 (holding that
assault against a peace officer, which also shares simple
assault as a predicate offense, is a "crime of
violence" under § 16(a)).
Gracia-Cantu has only two remaining arguments. We reject
both. First, he asserts that the degree of force
required by the Texas statute-reaching to "any
impairment of physical condition," Tex. Penal Code
§ 1.07(a)(8), even minor injuries-is too minimal to
constitute a crime of violence. See Curtis Johnson v.
United States, 559 U.S. 133, 140 (2010) ("[I]n the
context of a statutory definition of 'violent
felony,' the phrase 'physical force' means
violent force-that is, force capable of causing
physical pain or injury to another person.") (emphasis
in original). But Gracia-Cantu must show more than a
"theoretical possibility" that the statute could be
enforced and applied this way; he must show a "realistic
probability . . . that the State would apply its statute to
conduct that falls outside the [use-of-force clause]."
Reyes-Contreras, 910 F.3d at 184 & n.35. In the
absence of "supporting state case law, interpreting a
state statute's text alone is simply not enough to
establish the necessary 'realistic
probability.'" United States v.
Castillo-Rivera, 853 F.3d 218, 223 (5th Cir. 2017)
(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
fails to provide that case law. The state-court cases he
relies on-two finding bodily injury when defendants knowingly
transmitted HIV and one finding bodily injury when a
defendant knowingly injected bleach through an IV into a
victim's bloodstream-involve force "capable of causing
physical pain or injury" to the degree contemplated by
Curtis Johnson. Reyes-Contreras, 910 F.3d
at 185. These instruments-HIV and intravenous bleach-are no
different from the "deadly instruments" in Mr.
Reyes-Contreras's state-court case law: a gun,
poison-laced orange juice, and a plastic bag. Id.
Just as in Reyes-Contreras, the state-court case law
that Gracia-Cantu relies on involves the "knowing[ ]
employ[ment of] deadly instruments . . . with the
understanding that those instruments were substantially
likely to cause physical pain, injury, or . . .
second remaining argument post-Reyes-Contreras is
that applying Reyes-Contreras
"retroactively" to his sentence would violate the
Constitution's protection against "unforeseeable
judicial enlargement[s] of . . . criminal statute[s]."
Bouie v. City of Columbia, 378 U.S. 347, 353 (1964).
Gracia-Cantu, however, is not the first to raise this defense
against the application of Reyes-Contreras, and our
court has already rejected it. Gomez, 919 F.3d at 33
("Reyes-Contreras did not make previously
innocent activities criminal. It merely reconciled our
circuit precedents with the Supreme Court's decision in
applies to Gracia-Cantu's sentence and renders his prior
conviction for Texas "Assault - Family Violence" a
"crime of violence" under 18 U.S.C. § 16(a).
Accordingly, we AFFIRM the district court's sentence.
 Billingsley v. State, No.
11-13-00052-CR, 2015 WL 1004364, at *1-2 (Tex. App.- Eastland
Feb. 27, 2015, pet. ref'd) (unpublished); Padieu v.
State, 05-09- 00796-CR, 2010 WL 5395656, at *1 (Tex.
App.-Dallas Dec. 30, 2010, pet. ref'd)
Saenz v. State, 479 S.W.3d
939, 949-50 (Tex. App.-San Antonio 2015, pet.