Affirmed and Opinion filed September 14, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00136-CR
SERGIO MARTINEZ JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1632261
OPINION
In five issues, appellant Sergio Martinez Jr. appeals his conviction for
aggravated assault of a member of his household causing serious bodily injury with
a deadly weapon.1 We conclude that the jury’s finding of guilt is supported by
legally sufficient evidence, appellant has not demonstrated on this record that he
received ineffective assistance of counsel, the trial court did not abuse its discretion
1
The State brings a cross appeal that we do not address for reasons discussed below.
in admitting challenged photographic evidence, and the trial court did not err in
instructing the jury on aggravated assault by recklessly causing serious bodily
injury. We affirm.
Background
Appellant lived in his home with two roommates who rented bedrooms from
him.2 One evening around midnight, appellant’s roommate Elber went into the
kitchen. According to Elber, he went to the kitchen to get a drink of water, but
appellant accused him of urinating in the kitchen sink. Appellant yelled, “[g]et the
fuck out,” went to his bedroom, and got a gun. Elber, in the meantime, went to his
bedroom and began putting his possessions into a laundry basket.
The other roommate, Ariel, heard the men arguing loudly and came out of
his bedroom. Appellant waived a gun in Ariel’s face. Ariel testified that Elber was
crying and then appellant held a gun to Elber’s head and told him “not to be crying
crocodile tears” and “to be quiet” or appellant would shoot him. When Ariel
realized appellant was serious, he went to his bedroom to pack his clothes, then
heard a gunshot, and locked himself in his room.
Elber was leaving the house with the laundry basket when appellant shot
him in the back. Elber turned around, and appellant shot him in the face. Two
officers were on patrol, received a report of gunshots nearby, and arrived at
appellant’s house to find Elber lying on the ground near the mailbox. The laundry
basket was found outside near the front door. Appellant approached the officers
with his hands up and said, “I shot him. We were arguing, and I shot him.”
Appellant also told the officers that the gun was inside the house in a blue bowl,
which is where the officers found it. The officers also found Ariel barricaded in his
2
Appellant lived next door to his parents, who both testified at trial.
2
bedroom. Two bullet casings were recovered inside the house, one near the front
door and one behind the front door. There was blood outside the entryway leading
all the way to where Elber was found. Elber survived but sustained serious injuries.
Appellant presented evidence that Elber was often intoxicated, became
violent when intoxicated, carried a knife, and had threatened Ariel in the past.
Appellant testified that he purchased a gun because Elber was becoming
“increasingly more disruptive.” According to appellant, on the night in question, he
retrieved his gun from his bedroom to protect himself when Elber became
aggressive after being told to leave.
Appellant said he was standing inside the doorway to his front door when
Elber reached down toward the laundry basket and made a sudden movement
toward him. Appellant said he did not know what was in Elber’s hand. He then
flinched, closed his eyes, and shot Elber. Elber purportedly said, “Ow. What did
you do?” and then, “This is not going to stay like this, you know. I know where
your family lives.” Appellant said, “Don’t mess with my family.” Elber
purportedly came toward appellant again, and appellant shot him in the face.
Appellant said he did not aim—“[he] just shot straight out.” Medical records
admitted at trial stated that Elber was combative and smelled of alcohol. He had a
blood alcohol concentration of .268 when he arrived at the hospital.
Discussion
Appellant challenges the sufficiency of the evidence in support of the jury’s
findings that he possessed the requisite intent to cause serious bodily injury and did
not act in self-defense. Appellant also contends that (1) he received ineffective
assistance of counsel because his attorney did not request a mistake of fact jury
instruction, (2) the trial court abused its discretion in admitting certain photographs
of complainant, and (3) the trial court erred in instructing the jury that it could find
3
appellant guilty if it found that he recklessly caused bodily injury to complainant.
We turn to the sufficiency challenges first.
I. Evidence Legally Sufficient
In his first and second issues, appellant contends that the evidence is legally
insufficient to prove beyond a reasonable doubt that he had the requisite intent to
commit the offense and did not act in self-defense. When reviewing sufficiency of
the evidence, we view all the evidence in the light most favorable to the verdict
and determine, based on that evidence and any reasonable inferences therefrom,
whether any rational factfinder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as a
thirteenth juror and may not substitute our judgment for that of the factfinder by
reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the factfinder to fairly
resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from basic to ultimate facts. Id. This standard applies equally to both
circumstantial and direct evidence. Id. Each fact need not point directly and
independently to the appellant’s guilt so long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
We measure whether the evidence presented at trial was sufficient to support
a conviction by comparing it to the elements of the offense as defined by the
hypothetically correct jury charge for the case. Zuniga v. State, 551 S.W.3d 729,
733 (Tex. Crim. App. 2018). The hypothetically correct jury charge accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
4
adequately describes the particular offense for which the defendant was tried. Id.
The “law as authorized by the indictment” includes the statutory elements of the
offense as modified by the indictment. Id.
Intent. Appellant contends that the State failed to prove he had the requisite
intent to commit aggravated assault based on evidence that appellant thought
“complainant was going to stab and/or hurt him.” Appellant relies on the following
evidence to show he did not intend to assault complainant—appellant knew
complainant carried a knife, got violent when drinking, had been drinking, and was
upset when appellant told him to leave. Complainant also had a very high blood
alcohol concentration, and appellant testified he thought complainant might have
had a knife in his hand before appellant shot him.
To prove appellant committed aggravated assault resulting in serious bodily
injury, the State was required to establish that appellant “intentionally, knowingly,
or recklessly cause[d] bodily injury to another.” Tex. Penal Code § 22.01(a)(1); see
also Rodriguez v. State, 538 S.W.3d 623, 629 (Tex. Crim. App. 2018) (“The line
between lawful and unlawful conduct is crossed when one goes from accidentally
causing bodily injury to culpably causing bodily injury—not when one goes from
culpably causing bodily injury to culpably causing serious bodily injury.”). A jury
may infer a defendant’s intent from any facts tending to prove its existence,
including the method of committing the crime, the nature of the wounds inflicted
on the victim, and the accused’s acts, words, and conduct. Hart v. State, 89 S.W.3d
61, 64 (Tex. Crim. App. 2002).
Appellant himself testified that he pointed a gun at Elber and “flinched and
shot” Elber while Elber was standing five to six feet away. Appellant also admitted
that he fired the second shot but claimed that he did not aim before firing. This
testimony alone supports a reasonable inference that appellant intentionally,
5
knowingly, or recklessly caused Elber’s bodily injury. See Forest v. State, 989
S.W.2d 365, 368 (Tex. Crim. App. 1999) (holding that “firing a gun in the
direction of an individual is an act clearly dangerous to human life” and thus
evidence of intent to cause serious bodily injury); see also Darkins v. State, 430
S.W.3d 559, 565 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“Intent may
also be inferred from the use of a deadly weapon, unless it would not be reasonable
to infer that death or serious bodily injury could result from use of the weapon.”).
The jury, moreover, reasonably could have inferred from appellant’s
shooting Elber in the back at close range that appellant intended to cause bodily
injury. See Williams v. State, No. 14-18-00874-CR, 2020 WL 1026260, at *4 (Tex.
App.—Houston [14th Dist.] Mar. 3, 2020, pet. ref’d) (mem. op., not designated for
publication). Appellant also said he fired the second shot after Elber threatened his
family, which supports an inference that appellant intended to hurt Elber because
of that threat. That appellant may have had some concern for his safety or his
family’s safety does not negate the evidence of intent. See id. at *5.
The undisputed evidence also shows that appellant shot Elber after a heated
argument arose between the two men over whether Elber urinated in the kitchen
sink. Ariel testified that shortly before appellant shot Elber, appellant held the gun
to Elber’s head in the bedroom and told him “not to be crying crocodile tears” and
“to be quiet” or appellant would shoot him. Elber testified that appellant shot him
in the back while he was walking away and when he turned to ask, “what did you
do?” appellant shot him again, this time in the face. The jury reasonably could
have deduced that appellant shot Elber twice because he was angry. See id. at *4.
The jury, as factfinder, was free to believe Ariel and Elber and disbelieve some or
all of appellant’s self-serving testimony. See id. (involving intent to cause
complainant’s death); Darkins, 430 S.W.3d at 566 (holding in light of all the
6
evidence presented at trial, the jury was free to disregard defendant’s self-serving
testimony about his lack of intent to cause bodily injury).
Considering all the evidence in the light most favorable to the verdict, we
conclude that a rational jury could have determined beyond a reasonable doubt that
appellant had the requisite intent to cause serious bodily injury. We overrule
appellant’s first issue.
Self-Defense. Appellant further argues that the evidence was legally
insufficient to support the jury’s implicit rejection of his claim of self-defense.
Appellant argues he had reason to defend himself because (1) he thought Elber was
“drunk and dangerous” and “upset at being asked to leave” and (2) Elber was
known to carry a knife. In resolving this sufficiency of the evidence issue, we look
not to whether the State presented evidence that refuted appellant’s self-defense
evidence, but to whether after viewing all the evidence in the light most favorable
to the prosecution, any rational factfinder could have found against appellant on
the self-defense issue beyond a reasonable doubt. Darkins, 430 S.W.3d at 565
(citing Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991), and
Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App.—Houston [14th Dist.] 2010,
pet. ref’d)).
As discussed, appellant admitted that he shot Elber twice. Appellant points
to testimony from his parents that Elber would become intoxicated often, that his
mother had seen Elber with a knife, and that appellant and Ariel were both afraid
of Elber. Appellant also asserts that Elber became combative when asked to leave
the house and was intoxicated at that time. Appellant testified that Elber carried a
knife but admitted that he did not see a knife in Elber’s hand before appellant shot
him either time. Appellant contends that he shot Elber after Elber “made a sudden
movement and he didn’t know what was in Elber’s hand.” Appellant also testified
7
that Elber again lunged at him after threatening appellant’s family and then
appellant shot him the second time. Appellant presented evidence that Ariel had
texted him regarding previous threats Elber made against Ariel. Appellant testified,
moreover, that Elber had beaten up a previous roommate and had come up behind
someone in a bar and hit him with a bottle. Finally, appellant testified that he
learned Elber had stabbed and killed a man on a train in Honduras and thrown the
man off the train.
The State points to substantial evidence in support of the jury’s implicit
rejection of appellant’s self-defense claim. Elber and Ariel both testified that
appellant was angry because he thought Elber urinated in the sink and screamed at
Elber to “get the fuck out.” They testified that appellant pointed a gun at both of
them. Ariel testified that appellant held the gun to Elber’s head and threatened to
shoot him. Appellant followed Elber into the bedroom with the gun. Elber testified
that he was walking away when appellant shot him in the back. Elber dropped the
laundry basket and turned around before appellant shot him in the face. Ariel
testified that Elber was unarmed and was not aggressive while he was trying to
leave the house. The location of the fired bullet casings inside the doorway, Elber’s
belongings just outside the doorway, and Elber’s blood outside the doorway
support an inference that Elber was shot outside the house. The medical records
show that Elber was shot in the back. Finally, appellant told officers, “We were
arguing, and I shot him.” He did not tell the police at that time that he believed
Elber had a knife.
We resolve any inconsistencies in the witnesses’ testimony in favor of the
jury’s verdict in a legal sufficiency review. See id. at 566. Inconsistencies in
testimony concern the credibility and weight to be given the testimony. Id. The
jury has the ultimate authority to determine credibility of the witnesses. Id. The
8
evidence supporting appellant’s claim of self-defense consisted primarily of his
self-serving testimony and his parents’ testimony. See id. The only remaining
evidence supported appellant’s claim that Elber had been drinking that night and
that Ariel previously sent text messages to appellant stating that Elber had
threatened him. Considering all the evidence in the light most favorable to the
verdict, we conclude that there is sufficient evidence to support the jury’s rejection
of appellant’s self-defense claim. See id. We overrule appellant’s second issue.
II. Ineffective Assistance Not Established
In his third issue, appellant contends that he received ineffective assistance
because his attorney did not request a jury instruction on mistake of fact. To
prevail on his claim that he did not receive effective assistance of counsel,
appellant must show by a preponderance of the evidence that (1) his counsel’s
performance fell below an objective standard of reasonableness and (2) but for his
counsel’s unprofessional error, 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); Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986) (adopting Strickland analysis). A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. A
failure to make a showing under either prong defeats a claim for ineffective
assistance. Id. at 700.
There is a “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. To overcome this
presumption, a claim of ineffective assistance must be firmly demonstrated in the
record. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In most
cases, direct appeal is an inadequate vehicle for raising such a claim because the
record is generally undeveloped and cannot adequately reflect the motives behind
9
trial counsel’s actions. Id. The record must demonstrate that counsel’s performance
fell below an objective standard of reasonableness as a matter of law, and that no
reasonable trial strategy could justify trial counsel’s acts or omissions, regardless
of his or her subjective reasoning. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011).
Trial counsel requested a jury instruction on “accident or mistake,” which
the trial court denied. Appellant contends that he was entitled to an instruction on
“mistake of fact” and that his trial counsel’s failure to request that instruction can
only be attributed to ignorance of the law. “[A]n accused has the right to an
instruction on any defensive issue raised by the evidence, whether that evidence is
weak or strong, unimpeached or contradicted, and regardless of what the trial court
may or may not think about the credibility of the evidence.” Granger v. State, 3
S.W.3d 36, 38 (Tex. Crim. App. 1999). Mistake of fact is a viable defense when
“the actor through mistake formed a reasonable belief about a matter of fact if his
mistaken belief negated the kind of culpability required for commission of the
offense.” Tex. Penal Code § 8.02(a).
The record is silent as to trial counsel’s reasoning for declining to seek an
instruction on mistake of fact. And appellant does not point to any evidence on
appeal that would support a finding that he mistakenly formed a reasonable belief
about a matter of fact that would negate his culpable mental state. Appellant has
failed to demonstrate on appeal that he would have been entitled to a mistake of
fact instruction at trial. Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App.
2005) (noting to establish ineffective assistance, defendant was required to show
“that the trial court would have (or should have) actually submitted [instruction on
defensive issue] had it been requested”). Moreover, a motion for new trial was not
filed, and trial counsel was not given an opportunity to explain his reasoning in
10
declining to seek the instruction. See Roberts v. State, 220 S.W.3d 521, 533–34
(Tex. Crim. App. 2007).
Considering the record as a whole, it does not affirmatively demonstrate the
alleged ineffectiveness necessary to satisfy the first Strickland prong. See
Thompson, 9 S.W.3d at 813. Because appellant failed to satisfy the first Strickland
prong, we need not consider whether the requirements of the second prong were
met. See Lopez, 343 S.W.3d at 142. We overrule appellant’s third issue.
III. No Abuse of Discretion in Admission of Evidence
In his fourth issue, appellant contends that the trial court abused its
discretion in admitting two photographs of complainant’s incision taken after he
had surgery to remove the bullet from his back. According to appellant, the
probative value of this evidence was substantially outweighed by a danger of
unfair prejudice under Texas Rule of Evidence 403.
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex.
Crim. App. 2009); Foyt v. State, 602 S.W.3d 23, 47 (Tex. App.—Houston [14th
Dist.] 2020, pet. ref’d). If the trial court’s ruling falls within the zone of reasonable
disagreement, we will affirm that decision. Moses v. State, 105 S.W.3d 622, 627
(Tex. Crim. App. 2003); Foyt, 602 S.W.3d at 47. “Generally, a photograph is
admissible if verbal testimony as to matters depicted in the photographs is also
admissible.” Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007)
“Rule of Evidence 403 prohibits the admission of evidence that is
substantially more prejudicial than probative in criminal trials,” including
photographs. Reese v. State, 33 S.W.3d 238, 239 (Tex. Crim. App. 2000). Under
Rule 403, a “court may exclude relevant evidence if its probative value is
11
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403. In conducting a Rule 403
analysis, courts must balance (1) the inherent probative force of the proffered
evidence and (2) the proponent’s need for that evidence, against (3) any tendency
of the evidence to suggest decision on an improper basis, (4) any tendency to
confuse or distract the jury from the main issues, (5) any tendency to be given
undue weight by the jury, and (6) the likelihood that presentation of the evidence
will consume an inordinate amount of time or be cumulative of other evidence.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Foyt, 602
S.W.3d at 48.
All evidence tends to be prejudicial to one party or the other. Hernandez v.
State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012); Foyt, 602 S.W.3d at 48. Only
“unfair” prejudice provides the basis for exclusion of relevant evidence.
Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990); Foyt, 602
S.W.3d at 48. Prejudice is “unfair” if it has an “undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one.”
Montgomery, 810 S.W.2d at 378; Foyt, 602 S.W.3d at 48.
We turn to whether the evidence was unfairly prejudicial under the Rule 403
balancing test. As to the first and second factors, the State was required under the
indictment to show that appellant caused serious bodily injury to complainant by
shooting him with a deadly weapon, a firearm. The probative value of the evidence
was to show the severity of complainant’s gunshot wounds and to show that the
wounds were caused by a deadly weapon. See, e.g., Young v. State, 629 S.W.2d
247, 252 (Tex. App.—Fort Worth 1982) (“The indictment charged appellant with
‘using and exhibiting a deadly weapon to-wit, a knife’ while committing
12
aggravated robbery. It was necessary for the State to show that the knife in fact
under these circumstances, was a deadly weapon.”), appeal dism’d, 465 U.S. 1016
(1984).
The trial court reasonably could have concluded that the evidence would not
unduly tend to lead the jury to make an improper decision. Appellant contends that
the photographs show a “gaping hole” and that complainant “appears to have been
butchered.” We disagree. The photographs are graphic, but they show a clean
incision that was made during surgery to repair major damage to complainant’s
internal organs as a result of the gunshot to his back. Red tissue and the colostomy
bag attached to complainant’s abdomen are visible, but the photographs do not
show blood or any internal organs. Complainant testified that the incision was the
result of the operation to repair damage caused by the gunshot. A trial court
generally does not abuse its discretion in admitting pictorial evidence that helps the
jury understand the testimony and the injuries sustained by the victim. Morgan v.
State, No. 14-99-01148-CR, 2002 WL 27539, at *7 (Tex. App.—Houston [14th
Dist.] Jan. 10, 2002, no pet.) (not designated for publication) (citing Bailey v. State,
532 S.W.2d 316, 321 (Tex. Crim. App. 1975) (holding photographs taken after
autopsy surgery are admissible to show nature of injuries unless “results of surgery
have obfuscated the results of the crime”)).
The trial court likewise reasonably could have concluded that the evidence
did not tend to confuse or distract the jury from the main issues in the case—the
photographs show the nature of the injuries sustained by complainant as a result of
having been shot. Finally, presenting the evidence did not consume an inordinate
amount of time, and the evidence was not cumulative of other evidence. The State
did not offer photographs of the actual bullet wounds, and other photographs
admitted at trial showed complainant wrapped in bandages in the hospital. The
13
State did not present testimony from a medical expert describing the full extent of
complainant’s injuries.
The trial court, after balancing the Rule 403 factors, reasonably could have
concluded that the probative value of the photographs was not substantially
outweighed by the countervailing factors specified in the rule. See Gigliobianco,
210 S.W.3d at 642-43; Foyt, 602 S.W.3d at 49. We conclude the trial court did not
abuse its discretion in admitting the evidence. We overrule appellant’s fourth issue.
IV. Jury Charge Instruction Proper
In his fifth and final issue, appellant contends that the trial court erred in
instructing the jury that it could find appellant guilty as charged in the indictment if
it found that appellant committed aggravated assault by recklessly causing
complainant serious bodily injury. Appellant was charged with aggravated assault
by intentionally or knowingly causing complainant serious bodily injury. At the
charge conference, the State requested an instruction on the culpable mental state
of recklessness. The prosecutor argued that aggravated assault by recklessly
causing serious bodily injury is a lesser included offense of aggravated assault by
intentionally or knowingly causing serious bodily injury and the evidence raised
aggravated assault by recklessly causing serious bodily injury. Defense counsel
objected on the basis that the lesser included offense instruction would violate due
process because the indictment did not allege recklessness. The trial court granted
the State’s request.
Appellant cites Reed v. State, 117 S.W.3d 260 (Tex. Crim. App. 2003)
2003), to support his argument that it is reversible error to submit a charge on
recklessness if the indictment does not allege recklessness as a culpable mental
state because it allows for conviction of a broader offense than that alleged in the
indictment. The defendant in Reed, as here, was charged with aggravated assault
14
by intentionally or knowingly causing serious bodily injury to the victim. Id. at
261. The trial court instructed the jury in a single application paragraph to convict
if it found beyond a reasonable doubt that the defendant intentionally or knowingly
or recklessly caused serious bodily injury to the victim. Id. The Court of Criminal
Appeals held that the inclusion in the jury charge of a lower culpable mental state
than charged in the indictment could “lead to the possibility that the defendant was
convicted of an offense that is allowed under the statute but was not alleged in the
indictment.” Id. at 263. Thus, the jury charge improperly expanded the indictment.
Id. at 265.
The Reed court distinguished a situation involving a lesser included offense.
Id. at 263. The court noted,
The State admits that the way the charge in this case was worded did
not follow the usual manner by which the issue of a lesser included
offense is submitted to the jury. A charge containing a lesser included
offense usually says that the jury can consider a lesser included
offense if the defendant is acquitted of the charged offense. However,
in this case, no lesser included offense instructions were requested by
the parties.
Id.
In Hicks v. State, 372 S.W.3d 649 (Tex. Crim. App. 2012), the defendant
was also charged with aggravated assault by intentionally or knowingly causing
bodily injury. Id. at 655. The trial court instructed the jury that it could find
appellant guilty of the lesser included offense of aggravated assault by recklessly
causing bodily injury. Id. The Hicks court noted that the Reed case was
distinguishable “because the indictment [in Reed] alleged only the culpable mental
states of ‘intentional’ or ‘knowing,’” but the jury charge included a “single
application paragraph [that] read ‘intentionally or knowingly or recklessly cause[d]
bodily injury.’” Id. at 657. “This was impermissible because it allowed for
15
conviction of a broader offense than that alleged in the indictment.” Id. The Hicks
case was different because evidence at trial raised the issue of aggravated assault
by recklessly causing bodily injury based on the defendant’s testimony that the gun
accidentally went off during a struggle, causing the victim’s injuries, and the trial
court accordingly instructed the jury that it could find the defendant guilty of the
lesser included offense of aggravated assault by recklessly causing bodily injury.
Id. at 658. The trial court’s inclusion of that instruction as a lesser included offense
was proper. Id.
Here, similarly, appellant presented evidence that would support a finding of
the lesser included offense of aggravated assault by recklessly causing serious
bodily injury. Appellant testified that he flinched, closed his eyes, and “just raised
[his] hand and shot,” and as to the second shot, that he “did not aim at the eye or
anything” but “just shot straight out,” thus raising the possibly of recklessness. The
jury charge did not present the jury with a single application paragraph, but
presented the jury with the option to convict appellant of recklessly causing serious
bodily injury to complainant as a lesser included offense, as follows:
Now, if you find from the evidence beyond a reasonable doubt
that . . . the defendant . . . did then and there unlawfully, intentionally
or knowingly cause serious bodily injury to [complainant] . . . , then
you will find the defendant guilty of aggravated assault of a household
member, as charged in the indictment.
Unless you so find from the evidence beyond a reasonable doubt, or if
you have a reasonable doubt thereof, or if you are unable to agree, you
will next consider whether the defendant is guilty of the lesser
offense of aggravated assault of a household member.
Now, if you find from the evidence beyond a reasonable doubt
that . . . the defendant . . . did then and there unlawfully, recklessly
cause serious bodily injury to [complainant] . . . , then you will find
the defendant guilty of aggravated assault of a household member, as
charged in the indictment.
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(Emphasis added.)
This case is like Hicks and not like Reed. The trial court properly instructed
the jury that if it did not find appellant guilty of aggravated assault by intentionally
or knowingly causing serious bodily injury, it could find appellant guilty of the
lesser included offense of aggravated assault by recklessly causing serious bodily
injury. See id.; see also Gonzalez v. State, 610 S.W.3d 22, 26 (Tex. Crim. App.
2020) (“Inclusion of the culpable mental state of recklessness in a jury charge
application paragraph for aggravated assault causing bodily injury is error when
recklessness is omitted from the indictment. Such error is avoided, however, if
reckless aggravated assault is instead included as a standalone lesser-included-
offense instruction.”); Darkins, 430 S.W.3d at 568 (“‘Reckless’ aggravated assault
is an intermediate lesser-included offense of ‘intentional and knowing’ aggravated
assault.”). We overrule appellant’s fifth issue.
V. State’s Cross Appeal Not Addressed
In a cross appeal, the State challenges the trial court’s inclusion in the jury
charge of an instruction on “apparent danger.” The State concedes that courts of
appeals generally cannot address cross appeals by the State unless the conviction is
reversed.
Article 44.01(c) permits the State to “cross-appeal” a separate ruling of law
by the trial judge when the defendant is convicted and appeals his judgment. Tex.
Code Crim. Proc. art. 44.01(c). An appellate court is not permitted to address the
State’s cross appeal “if the State would not be able to implement a decision in its
favor on that issue.” Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App.
2012). The State generally will not be able to benefit from a favorable decision
“[i]f the defendant is granted no relief and no retrial will therefore be held.” Id.
This is a “bright-line rule”: appellate courts may not address the State’s cross
17
appeals in such cases because we “are without authority to render advisory
opinions.” See id. Usually, we may address a State cross appeal only if the
defendant prevails on appeal and we remand the case for further proceedings. See
id.
Here, the State has not demonstrated that it would be able to implement a
decision in its favor on this issue absent a reversal and remand for further
proceedings. We cannot address a cross appeal “in which the State merely requests
a directive as to language or reasoning of the lower court that does not impact the
ultimate decision.” Id. at 601 n.32. That is precisely the situation here: the State
would not benefit in the instant case from an opinion that the trial judge erred by
giving the challenged jury instruction because we are affirming appellant’s
conviction. See Seghelmeble v. State, 390 S.W.3d 576, 583 (Tex. App.—Dallas
2012, pet. ref’d). Thus, the State seeks an advisory opinion in these circumstances.
See id. We are not permitted to address the State’s cross appeal.
Conclusion
We conclude that the jury’s guilty finding is supported by legally sufficient
evidence, appellant has not demonstrated on this record that he received ineffective
assistance of counsel, the trial court did not abuse its discretion in admitting
photographic evidence, and the trial court did not err in instructing the jury on
aggravated assault by recklessly causing serious bodily injury. We affirm the
judgment of the trial court.
/s/ Frances Bourliot
Justice
Panel consists of Justices Wise, Bourliot, and Wilson.
Publish — TEX. R. APP. P. 47.2(b).
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