IN THE
TENTH COURT OF APPEALS
No. 10-15-00397-CR
WILLIAM DAVID WAGNER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 14-04379-CRF-361
MEMORANDUM OPINION
William David Wagner was convicted of injury to a child and sentenced to 7 years
in prison. See TEX. PENAL CODE ANN. § 22.04(f) (West 2011). The victim was the youngest
daughter of Wagner’s live-in girlfriend. Because the evidence is sufficient to support the
jury’s rejection of Wagner’s defenses but because the judgment contains a scrivener’s
mistake which the parties agree this Court may correct, the trial court’s judgment is
reformed and affirmed as reformed.
BACKGROUND
When Wagner got home several hours after leaving work, he was intoxicated and
angry. Ten year old Keyuiana was watching television in the living room. It was after
11:00 p.m. Wagner wanted Keyuiana to turn off the television. She would not. When he
turned it off, she turned it back on. This happened several times. Wagner decided to
break the televisions in the house. He started with the one in the living room. When he
went to Keyuiana’s room where there was another television, she tried to block his entry.
He pushed her aside and she pushed him back. He then pulled her hair. An older sister
of Keyuiana’s tried to intervene, and Wagner attempted to punch her. She responded by
punching Wagner in the mouth, chipping his tooth.
Wagner ultimately broke the television in Keyuiana’s room, and at some point
during the fray, he threw a hand vacuum down the hall at the girls. Keyuiana then threw
a metal paper towel holder at Wagner. Neither item hit its mark. Wagner left the house,
threw the family dog over the fence, slashed the tires to his girlfriend’s two vehicles, and
cut the family’s above-ground swimming pool. When he started to enter the house again,
Keyuiana grabbed the paper towel holder. Wagner punched Keyuiana in the face,
causing her nose to bleed. She rated the pain she felt when she was punched as a 10 on
a scale of 1 to 10. When EMS personnel arrived and evaluated Keyuiana, the EMT noticed
that Keyuiana had blood in and around her nose and had cuts to the inside of her lips.
Wagner v. State Page 2
SUFFICIENCY OF THE EVIDENCE
Wagner received instructions on the justifications of self-defense and reasonable
discipline. See TEX. PENAL CODE ANN. §§ 9.31; 9.61(a) (West 2011). In his first two issues,
Wagner contends the evidence is insufficient for the jury to reject these justifications.
Initially we note Wagner contends a sufficiency review regarding his claim of self-
defense would necessarily include, under the concept of a hypothetically correct jury
charge, a claim of self-defense from multiple assailants because the evidence supports
that variation of self-defense. See Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App.
1985) (defendant is entitled to a charge on the right of self-defense against multiple
assailants if there is evidence that he was in danger of an unlawful attack or a threatened
attack at the hands of more than one assailant). A hypothetically correct jury charge is
one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily restrict the State's theories of liability, and adequately describes the
particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). Assuming without deciding a hypothetically correct jury charge
includes defenses, if a particular defense is not requested, it is not considered in the
hypothetically-correct-jury-charge sufficiency review. See Osborne v. State, No. 07-13-
00156-CR, 2015 Tex. App. LEXIS 5518, at *7-8 (App.—Amarillo 2015, pet. ref’d) (publish);
Villa v. State, 370 S.W.3d 787, 971 (Tex. App.—Eastland 2012), aff’d, 417 S.W.3d 455 (Tex.
Wagner v. State Page 3
Crim. App. 2013). Wagner did not request the submission of the right to self-defense
against multiple assailants; thus, our review will not consider this form of the defense. 1
We review Wagner’s first two issues under the well-known standards for
sufficiency of the evidence to support the rejection of a defense. See TEX. PENAL CODE
ANN. § 2.03(d) (West 2011); Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed.2d 560
(1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). After reviewing the
evidence pursuant to those standards, we find the evidence sufficient. Issues one and
two are overruled.
ERROR IN JUDGMENT
In his third issue, Wagner contends the judgment should be reformed because it
reflects that the jury assessed punishment when punishment was assessed by the court.
The State agrees.
When an appellate court has the necessary data and evidence before it for
reformation, the judgment and sentence may be reformed on appeal. Banks v. State, 708
S.W.2d 460, 462 (Tex. Crim. App. 1986); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
1We question whether this form of the defense would apply to Wagner’s case in any event. Frank, the case
relied upon by Wagner, and its supporting authority, held the defense to be available to a defendant who
claimed the right to self-defense using deadly force. Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App.
1985); Sanders v. State, 632 S.W.2d 346 (Tex. Crim. App. 1982); Wilson v. State, 145 S.W.2d 890, 893 (Tex.
Crim. App. 1940). That is not the situation here. But because we hold that Wagner is not entitled to a
sufficiency review which includes the multiple assailant form of self-defense, we need not decide whether
that defense would have been available to Wagner.
Wagner v. State Page 4
Dallas 1991, pet. ref’d). Here, the record reflects that the trial court assessed Wagner’s
punishment, not the jury as is reflected in the trial court’s judgment.
Accordingly, based on the agreement, we reform the judgment to reflect
punishment was assessed by the trial court.
CONCLUSION
Having overruled Wagner’s first and second issues, and in accordance with the
agreement of the parties, we reform the trial court’s judgment and affirm it as reformed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as reformed
Opinion delivered and filed July 20, 2016
Do not publish
[CR25]
Wagner v. State Page 5