Christopher Dewayne Johnson v. State

AFFIRMED as MODIFIED and Opinion Filed April 5, 2021

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00986-CR

CHRISTOPHER DEWAYNE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F18-57558-V

MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Nowell
Opinion by Justice Reichek
Christopher Dewayne Johnson was indicted on a charge of first-degree

aggravated assault of a family member causing serious bodily injury following an

incident that resulted in a butcher knife wound to his wife’s head. A jury convicted

him of the lesser charge of second-degree aggravated assault with a deadly weapon

and assessed punishment at fourteen years in prison. In three issues, appellant

complains about the sufficiency of the evidence to support his conviction, admission

of certain evidence, and ineffective assistance of counsel. In a cross-issue, the State

requests the judgment be modified to correct errors in the judgment. For the reasons
set out below, we overrule appellant’s issues and sustain the State’s cross-issue. We

modify the judgment to correct the errors and affirm as modified.

FACTUAL BACKGROUND

On September 11, 2018, Dallas police were dispatched to an apartment

complex on a stabbing call. When police arrived at the scene, they found appellant’s

wife, Yolanda Williams Johnson, seated outside on the steps leading to her

apartment. She was covered in blood and disoriented. Her head, which was wrapped

in gauze, was bleeding, and she had blood on her chest. She appeared to have lost a

“significant amount” of blood.

Officer Nancy Avelar was the first to approach Yolanda. Because of all the

blood, Avelar was not certain of where Yolanda had been stabbed and thought she

could have a chest wound. Avelar asked what happened, and Yolanda told her she

had been stabbed and that “the man that did it was inside of her apartment.” Avelar

also said that Yolanda later told her that appellant had accused her of cheating, they

got into an altercation, and she was “injured on her head.” Avelar learned that the

weapon used was a knife with a seven-inch blade.

Yolanda was transported by Dallas Fire and Rescue to the hospital, where she

received seventeen staples to close the 4 ½-inch gash on her head and was discharged

that night. According to medical records, Yolanda told paramedics that she was

“stabbed in the head” by her husband and told hospital personnel that “somebody hit

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her across the head with a knife and she fainted afterwards due to the amount of

blood.”

Meanwhile, officers knocked on the apartment door to make contact with

appellant, who had locked himself inside after several men tried to restrain him in

an effort to protect Yolanda. After a few attempts, appellant answered and came

outside. Appellant told police that somebody else was in the apartment, but officers

searched and found no one. Appellant told police that Yolanda was injured while

he was trying to get to an intruder and she “got in the way.”

The police went to the hospital and spoke to Yolanda. She was described as

“really calm,” “coherent,” and “very cooperative.” At some point, Yolanda gave the

officers her consent to search the apartment, where police located the suspected

weapon where appellant indicated it would be. Yolanda also filled out a family

violence package and talked to counselors. Although Avelar said Yolanda was a

“little hesitant,” she was “very clear with her story.” Based on Yolanda’s statement

that night about what occurred, her injury, and appellant’s statement that “she got in

the way,” appellant was arrested and charged. Police did not believe that Yolanda

was “accidentally hit.” Nor did they believe there was an intruder in the apartment.

By the time of trial, Yolanda had filed an affidavit of non-prosecution. During

her testimony at trial, she took the blame for the incident. She described her injury

as a “nick” rather than a “stab,” and claimed she did it herself. She further said that

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if she had left her wig on, presumably as a barrier to her scalp, she would not have

been injured at all.

Yolanda testified that on the day of the incident, she left her apartment to buy

a cell phone. When she returned, appellant confronted her with an allegation that

she was cheating on him. Yolanda was angered by the claims and denied them.

Yolanda said that while they were discussing the issue, they heard a “thump” in the

bedroom. Appellant, who suffers from schizophrenia and bipolar disorder, believed

another man was in their apartment, grabbed a butcher knife, and went to investigate.

As appellant was looking through the closet with the knife, Yolanda tried to tell him

the noise was made by their dog, but appellant would not listen.

Yolanda demonstrated how appellant was using the knife as he looked through

the clothes in the closet, motioning “back and forth.” She said when she “was trying,

when I was taking it from him, that’s how I got cut.” She said that afterwards, she

took the knife and placed it back on the shelf in the kitchen and then went outside

because it was hot. Appellant followed her and tried to put something on her head.

Several men “jumped” him, in an attempt to protect her, and cut and beat him. When

appellant was able to wrest free, he locked himself inside the apartment.

On further questioning by the State as to how the injury occurred, Yolanda

testified that she and appellant were in front of the closet, and she was standing to

the left of him, about an inch or two behind him. After explaining how she and

appellant were positioned, she demonstrated for the jury how she reached in front of

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appellant under his left arm, grabbed the knife by its handle, and “just yanked it.”

Yolanda said that she should have stayed in the living room and let appellant go

through the closet by himself, and then she would have her “husband home with me

like he belongs.” She also said that she would not have been cut if she had not

reached for the knife.

At trial, the State attempted to impeach Yolanda with prior inconsistent

statements she made to the police the night of the offense. But Yolanda testified that

she only “vaguely” remembered talking to the police at the hospital because she was

on “a lot of narcotic pain medicine” and claimed that whatever she told them was a

matter of her “just talking, basically repeating what they [were] saying.” For

example, she told police at the hospital that appellant stabbed her and that he had the

knife when she arrived home, which was contrary to her trial testimony that he

grabbed the knife after they heard a noise. She also previously said that appellant

was the one who returned the knife to the kitchen, but testified at trial that she put

the knife on the shelf.

On questioning by defense counsel, Yolanda agreed that her injury resulted

from a “very tragic” accident. She explained that although no intruder was in the

house or in the closet, appellant “in his mind” saw a person there. She again

demonstrated for the jury how they were positioned and how the injury occurred.

She said she grabbed the knife and was pulling it towards her while appellant was

pulling it away, and that was how she was injured.

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 Among the items admitted into evidence were photographs of the crime scene

and Yolanda’s injury, the ambulance and emergency room records, and a knife with

a seven-inch blade. Jurors also heard two 911 calls made in connection with the

incident. In the first call, a woman reported that “a husband cut his wife’s head

open” with a butcher knife and was being restrained by three men. The second call

was made by appellant after he locked himself in the apartment. He reported that a

man was in his house, and he and his wife were “hurt.” He claimed the man, “Chris,”

cut him on the arm and was still in the apartment. He said his wife was cut on the

head and “was going to tell everybody that I did it.” Appellant denied that he cut

his wife, but then said, “I tried to get him, she got in the way.” The 911 operator

sought clarification as to who cut his wife, asking, “So when she got in the way, you

stabbed her?” Appellant responded, “Slashed her, yes.”

In addition, jurors heard a phone call appellant made to Yolanda while he was

in jail awaiting trial. During the call, appellant told Yolanda that she did not give

him time to call an ambulance and made things “worse” by going outside. Yolanda

responded that appellant was “out of [his] mind” if he thought she was going to stay

in the apartment after “you done cut me in the head with a knife.” Appellant then

repeatedly reminded Yolanda that “we [are] on this phone,” apparently a reference

to the fact that the call was being recorded. Appellant also questioned whether

Yolanda was going to “do anything” to get him home or was she trying to “keep”

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him in jail. Yolanda said she would “fill out the papers,” an apparent reference to

the non-prosecution affidavit she ultimately executed.

After hearing the evidence, the jury acquitted appellant of first-degree

aggravated assault causing serious bodily injury with a deadly weapon, involving

family violence, but convicted him of second-degree aggravated assault with a

deadly weapon.

SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant argues the evidence was legally insufficient to

prove he committed aggravated assault with a deadly weapon because (1) there was

no evidence he used, or intended to use, the knife in a manner capable of causing

serious bodily injury and (2) the evidence showed the injury would not have occurred

but for Yolanda’s use of force, which he contends was the “primary cause of her

wound.”

When addressing a challenge to the sufficiency of the evidence, we consider

whether, after viewing all of the evidence in the light most favorable to the verdict,

any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Zuniga

v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018). This standard requires the

appellate court to defer “to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. The factfinder is “free

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to apply common sense, knowledge, and experience gained in the ordinary affairs of

life in drawing reasonable inferences from the evidence. Eustis v. State, 191 S.W.3d

879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). We determine whether

the “necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict.”

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

In conducting our review, we consider all the evidence in the record, whether

admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.

2013). If the record supports conflicting inferences, we must presume that the

factfinder resolved the conflicts in favor of the verdict and therefore defer to that

determination. Jackson, 443 U.S. at 326. Direct and circumstantial evidence are

treated equally, and circumstantial evidence alone may be sufficient to uphold a

conviction so long as the cumulative force of all the incriminating evidence is

sufficient to support the conviction. Zuniga, 551 S.W.3d at 733. Finally, the

factfinder is entitled to judge the credibility of witnesses and can choose to believe

all, some, or none of the testimony presented by the parties. Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991).

A. Deadly Weapon

Appellant first complains that the evidence is legally insufficient to prove that

the knife he used was a deadly weapon.

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 A person commits aggravated assault if the person commits assault and uses

a deadly weapon during the commission of the offense. TEX. PENAL CODE ANN. §

22.02(a)(2). The penal code defines “deadly weapon” as “anything that in the

manner of its use or intended use is capable of causing death or serious bodily

injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B). “Serious bodily injury” is bodily

injury that “creates a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss of impairment of the function of any bodily

member or organ. TEX. PENAL CODE ANN. § 1.07(1)(46).

A knife is not a deadly weapon per se. Blain v. State, 647 S.W.2d 293, 294

(Tex. Crim. App. 1983). But a knife may become “a deadly weapon if, in the manner

of its use or intended use, it is capable of causing death or serious bodily injury.”

Cooper v. State, No. 03-19-00007-CR, 2020 WL 5752920, at *8 (Tex. App.—Austin

Sept. 23, 2020, no pet.) (mem. op., not designated for publication). To determine

whether a knife is a deadly weapon, we may consider (1) any words or threatening

actions by the defendant, including his proximity to the victim, (2) the weapon’s

ability to inflict serious bodily injury or death, including the size, shape, and

sharpness of the weapon, and (3) the manner in which the defendant used the

weapon. Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017). These are,

however, merely factors used to guide a court’s sufficiency analysis and are not

“inexorable commands.” Id.

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 The State need not establish that the use or intended use of the knife actually

caused death or serious bodily injury; only that “the manner” it was either used or

intended to be used was capable of causing death or serious bodily injury. See

Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017); Tucker v. State, 274

S.W.3d 688, 691 (Tex. Crim. App. 2008). Nor is the State required to prove that the

actor actually intended death or serious bodily injury. Moore, 520 S.W.3d at 909;

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Moreover, it “is not

necessary” to admit the knife or provide a detailed description of the knife “when

there is other evidence showing the knife was capable of inflicting serious bodily

injury in the manner in which it was used.” Cooper, 2020 WL 5752920, at *8.

Injuries suffered by the victim can by themselves be a sufficient basis for inferring

that a deadly weapon was used. See Tucker, 274 S.W.3d at 691–92 (two-inch folding

knife or key were objects “capable” of causing death or serious bodily injury).

Viewed in the light most favorable to the verdict, the evidence showed that

appellant hit Yolanda across the head with a butcher knife with a seven-inch blade

during an argument over whether she had cheated on him. Yolanda sustained a 4 ½-

inch gash to the top of her head which required seventeen staples to close. The

wound was described by police officers as “medieval,” “gross,” and “serious.” A

photograph of the wound and the knife were admitted into evidence, and the jury

could make reasonable inferences about the deadliness of the knife from this

evidence. To the extent appellant suggests the knife in evidence was not the knife

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that cut Yolanda, the jury could have found to the contrary based on testimony that

the knife was found in the apartment where appellant said it would be.1

In addition, paramedics who treated Yolanda described the bleeding as

“uncontrolled.” A police officer said there was so much blood at the scene, she

could not tell from looking at Yolanda whether she may have also been stabbed in

the chest. Because of the “ridiculous amount” of blood, the officer was concerned

that Yolanda could die from her injury. Another officer testified he could not

“believe that she [was] alive.”

Although the jury may not have believed that Yolanda’s wound was a serious

injury, that did not preclude the jury from finding that the knife was capable, in the

manner of its use, of causing death or serious bodily injury. Her wound was in a

vital area and “would seem to carry at least some potential for resulting in a serious

bodily injury . . . or death.” See Tucker, 274 S.W.3d at 692. We conclude the

evidence established that the knife, in the manner of its actual use (slashing

Yolanda’s head), was capable of causing death or serious bodily injury; thus, the

evidence was legally sufficient to prove that the knife was a deadly weapon.

B. Causation

Next, appellant argues the evidence is insufficient to prove he “caused”

Yolanda’s injury. Relying on Yolanda’s testimony at trial, he argues that her

1
Moreover, as stated previously, the State did not have to introduce the actual knife for the jury to find
appellant used a deadly weapon.
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conduct in moving in front of him and “yanking” the knife toward her was the

conduct that resulted in her injury. Thus, he contends, the incident was an “accident”

and her injury would not have occurred but for her own use of force, “which was the

primary cause of her wound.”

But the jury was not required to believe Yolanda’s trial version of the event

in which she minimized appellant’s culpability and took the blame for what

happened. Nor do we agree with appellant that Yolanda’s earlier statements that

appellant “hit” or “stabbed” her with a knife were too ambiguous to “prov[e] the

opposite of her trial testimony about the accidental nature of the occurrence.”

On the night of the event, Yolanda told the police that appellant stabbed her.

She told paramedics that her “husband stabbed her in the head.” She told the

emergency room physician that “somebody hit her across the head with a knife.”

And, less than a month after the incident, during a recorded phone call with appellant

from the jail, she responded with incredulity when appellant suggested she should

have stayed in the apartment after she was injured, telling him he was out of his mind

if he thought she would stay in the apartment with him after he “cut her with a knife.”

In addition to this evidence, the jury had before it appellant’s 911 call in which he

admitted that he “slashed” Yolanda, said she “got in the way,” and expected that she

would say he “did it.”

Based on this evidence, the jury could reasonably infer that Yolanda was not

cut or struck on the head with a knife by accident or by her own conduct; rather, a

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rational jury could believe appellant intentionally, knowingly, or recklessly caused

her injury. Reviewing the evidence in the light most favorable to the jury’s verdict,

we conclude a rational jury could determine that appellant caused Yolanda’s injury.

We overrule the first issue.2

PRIOR INCONSISTENT STATEMENT

In his second issue, appellant contends the trial court erred by “permitting the

State to use evidence of the complainant’s prior hearsay statements––that was

inconsistent with her trial testimony––as evidence of [appellant’s] guilt.” In

particular, he complains about the admission of Yolanda’s statement to police at the

hospital that appellant hit her with the knife and then walked with the knife to the

kitchen.3 The statement was video-recorded by the officers who went to see Yolanda

at the hospital. When Yolanda testified differently at trial, the State, outside of the

jury’s presence, showed Yolanda the video. Once the jurors were returned to the

2
We note that appellant argues concurrent causation in his brief, but he did not ask for a concurrent
causation instruction in the charge and the jury was not instructed on this issue. Concurrent causation is a
defensive issue. Feaster v. State, No. 05-18-00739-CR, 2019 WL 2282295, at *4 (Tex. App.—Dallas May
29, 2019, pet. ref’d) (mem. op., not designated for publication). A feature of a defensive issue is that it is
a strategic decision “generally left to the lawyer and the client.” Taylor v. State, 332 S.W.3d 483, 487 (Tex.
Crim. App. 2011). An unrequested defensive issue is not the law applicable to the case. Id. Thus, while
Yolanda’s testimony may have raised the issue, we question whether it is law applicable to the case when
analyzing sufficiency. Regardless, we have concluded the evidence was sufficient to show appellant was
the cause of Yolanda’s injury.
3
Although the State argues appellant did not preserve this issue for review, the trial court granted
defense counsel a “running objection” to the State’s impeachment of Yolanda. Accordingly, we conclude
the issue is preserved.

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courtroom, Yolanda acknowledged making the statement on the video but said she

did not remember it. The video was not admitted as evidence.

In his brief, appellant cites a string of cases for the proposition that the

questioning was “an improper ploy by the State––to use the right to impeach its own

witness ‘as a subterfuge for offering inadmissible hearsay.’” See Hughes v. State, 4

S.W.3d 1, 5 (Tex. Crim. App. 1999); Ramirez v. State, 987 S.W.2d 938, 944 (Tex.

App.—Austin 1999, pet. ref’d); Miranda v. State, 813 S.W.2d 724, 735 (Tex.

App.—San Antonio 1991, pet. ref’d); Pruitt v. State, 770 S.W.2d 909, 909 (Tex.

App.—Fort Worth 1989, pet. ref’d).

The general rule is that “[a]ny party, including the party that called the

witness, may attack the witness’s credibility.” See TEX. R. EVID. 607. This means

the State is allowed to impeach its own witness. See id. Nevertheless, the trial court

can refuse to allow a party to impeach its own witness with prior inconsistent

statements under rule 403 where the impeachment is “a mere subterfuge to get before

the jury evidence not otherwise admissible.” Kelly v. State, 60 S.W.3d 299, 301

(Tex. App.—Dallas 2001, no pet.); see also Hughes, 4 S.W.3d at 4. In other words,

if a party calls a witness for the primary purpose of admitting impeachment

evidence, such as through an inconsistent statement, the evidence should be

excluded under rule 403. Hughes, 4 S.W.3d at 5. In this inquiry, “prior knowledge

is key.” Kelly, 60 S.W.3d at 302. When “there is no evidence that the state called

[a particular witness] solely for impeachment purposes” and appellant has not

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directed the court “to facts that indicate that the state knew” that it would need to

impeach the witness,” Hughes and its progeny are not controlling. Stovall v.

Cockrell, No. 3:00-CV-1407-P, 2003 WL 21750707, at *21 (N.D. Tex. July 29,

2003) (citing Willingham v. Johnson, No. CIV.A.3:98-CV-0409-L, 2001 WL

1677023, at *4 (N.D. Tex. Dec. 31, 2001)).

Here, appellant has not shown, nor made any argument, that the State’s

primary purpose in putting Yolanda on the stand was to introduce her prior

inconsistent statement. He has not directed us to facts that indicate the State knew

Yolanda would deny being assaulted by appellant. While the record contains

evidence that Yolanda filed an affidavit of non-prosecution, that merely suggests she

did not want her husband prosecuted, not that that she would testify differently.

Also, there is evidence she testified before the grand jury that she did not believe

appellant intentionally cut or stabbed her, but she did not say how she testified when

the grand jury asked whether she believed it was “reckless.” While this may suggest

that Yolanda would be a “hostile” witness, it does not show the State knew she would

change her story.

But even if the impeachment was improper, this evidence was not the only

evidence that Yolanda previously reported that appellant stabbed, cut, or hit her with

a knife that night, which was clearly the more damaging part of the statement. By

the time this evidence came in, the jury had been read the reports of the paramedics

and emergency room physician stating that Yolanda had reported appellant stabbed

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or hit her across the head with a knife. Immediately following her testimony, Avelar

testified that she reported that appellant stabbed her in the head, and the jury later

heard the recorded phone call in which Yolanda reminded appellant that he cut her

in the head. All of this evidence came in without objection. Given this circumstance,

we fail to see how Yolanda could be harmed by the erroneous admission of her later

similar statement to the police at the hospital.

Finally, to the extent appellant’s complaint is that the trial court allowed the

evidence to be used as substantive evidence of guilt as opposed to simply

determining Yolanda’s credibility, appellant did not seek a limiting instruction.

A witness’s prior inconsistent statement is admissible for impeachment, but

is not admissible as evidence of the truth of the matter asserted, unless a hearsay

exception applies. Lund v. State, 366 S.W.3d 848, 855 (Tex. App.—Texarkana

2012, pet. ref’d). Under Texas Rule of Evidence 105, the parties have full

responsibility for requesting appropriate limiting instructions. See TEX. R. EVID.

105; Hall v. State, No. 05-13-00964-CR, 2014 WL 7014212, at *4 (Tex. App.—

Dallas Dec. 5, 2014, no pet.) (mem. op., not designated for publication). A failure

to request a limiting instruction at the time evidence is presented renders the

evidence admissible for all purposes and relieves the trial judge of any obligation to

include a limiting instruction in the jury charge. Williams v. State, 273 S.W.3d 200,

230 (Tex. Crim. App. 2008). Because appellant did not request a limiting instruction,

the evidence could be used as substantive evidence of guilt.

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 For the reasons stated above, we overrule appellant’s second issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, appellant contends he was denied effective assistance of

counsel by trial counsel’s failure to (1) object to evidence regarding Yolanda’s prior

statements about the cause of her injuries before and after she arrived at the hospital

and testimony by others containing references to her statements, (2) request a charge

on concurrent causation under section 6.04(a) of the penal code, and (3) object to the

admission of the knife as illegally seized evidence.

A substantial risk of failure accompanies an appellant’s claim of ineffective

assistance of counsel on direct appeal. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). Rarely will a reviewing court be provided with the opportunity

to make is determination on direct appeal with a record capable of providing a fair

evaluation of the merits of the claim involving such a serious allegation. Id. In the

majority of instances, the record on direct appeal is simply undeveloped and cannot

adequately reflect the failing of trial counsel. Id.

To prevail on a claim of ineffective assistance of counsel, an appellant must

demonstrate both that (1) his counsel’s representation fell below an objective

standard of reasonableness and (2) the alleged deficient performance prejudiced the

defense; that is, but for the deficiency, there is a reasonable probability that the result

of the proceeding would have been different. See Strickland v. Washington, 466

U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).

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Appellant bears the burden of proving both prongs by a preponderance of the

evidence. See Thompson, 9 S.W.3d at 813. Unless appellant can prove both prongs,

an appellate court must not find counsel’s representation to be ineffective. Lopez,

343 S.W.3d at 142.

There is a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance and was motivated by legitimate trial

strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To find

counsel ineffective, counsel’s deficiency must be affirmatively demonstrated in the

record, and we must not engage in retrospective speculation. Id. When such direct

evidence is not available, we will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined. Id.

The court of criminal appeals has made clear that, in most cases, a silent record

which provides no explanation for counsel’s actions will not overcome the strong

presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110

(Tex. Crim. App. 2003). Counsel should ordinarily be afforded the opportunity to

explain his actions before being denounced as ineffective. See Menefield v. State,

363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Because the reasonableness of trial

counsel’s choices often involve facts that do not appear in the appellate record, an

application for writ of habeas corpus is the more appropriate vehicle to raise

ineffective of assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002).

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 Here, appellant filed a motion for new trial but did not raise a complaint of

ineffective assistance of counsel; consequently, the record before us provides no

explanation for counsel’s actions or omissions. From this record, one could

conclude there were legitimate and professionally sound reasons for counsel’s

conduct or one could speculate that there were not. And trial counsel has not been

given an opportunity to explain. Under these circumstances, we cannot conclude

appellant has met the requirements of Strickland. We overrule the third issue.

STATE’S CROSS-ISSUE

In a cross-issue, the State requests that we modify the judgment to correct

errors in the judgment related to the offense for which appellant was convicted. The

judgment shows appellant was convicted of “AGGRAVATED ASSAULT

SERIOUS BODILY INJURY/DEADLY WEAPON/FAMILY VIOLENCE,” which

is a first-degree felony. See TEX. PENAL CODE ANN. § 22.02(a), (b)(1). The jury,

however, convicted appellant of aggravated assault with a deadly weapon, which is

a second-degree felony. See id. § 22.02(a)(2), (b).

We have the authority to correct a judgment below to make the record “speak

the truth” when we have the necessary data and information to do so.” Asberry v.

State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly, we

sustain the State’s cross-issue and modify the judgment to reflect the correct offense

for which appellant was convicted, the statute for the offense, and the degree of

offense.

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 We affirm the trial court’s judgment as modified.

/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190986F.U05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CHRISTOPHER DEWAYNE On Appeal from the Criminal District
JOHNSON, Appellant Court No. 1, Dallas County, Texas
Trial Court Cause No. F18-57558-V.
No. 05-19-00986-CR V. Opinion delivered by Justice
Reichek; Justices Molberg and
THE STATE OF TEXAS, Appellee Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

To show (1) Offense for which Defendant Convicted as Aggravated
Assault with a Deadly Weapon; (2) Statute for Offense as 22.02(a)(2),
(b) Penal Code; and (3) Degree of Offense as Second-Degree Felony.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered April 5, 2021

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