Javier Yebra v. State ( 2010 )

NO. 07-10-00008-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
OCTOBER 5, 2010
JAVIER YEBRA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 4249; HONORABLE RON ENNS, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
A Moore County jury found appellant, Javier Yebra, guilty of aggravated assault
with a deadly weapon1 and assessed a fifty-year sentence of incarceration. He appeals
his conviction contending that the evidence was factually insufficient to support a finding
that he used a deadly weapon and that he acted with the requisite intent. He also
maintains that the State’s pretrial amendment of the indictment was impermissible. We
will affirm.
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TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2009).
Factual and Procedural History
Complainant, Darlene Flores, went with her roommate, Rosa Aguirre, to a bar in
Cactus, Texas. While there, Flores met appellant. Flores bought him a beer, and the
two played pool. During their interaction, appellant told her that if she “did him wrong
that he had a knife.” Flores and Aguirre left the bar at about 2:00 a.m. Though
uninvited and unbeknownst, appellant followed them.
At this point, the details regarding the sequence of the night’s events vary
somewhat among the witnesses. Flores recalled going to her room to change clothes.
Appellant, after having somehow gained entry to the house, tried to get into her room.
Flores slammed the door to prevent him from doing so, changed clothes, and then went
outside to talk to him. Appellant accused Flores of having stolen CDs from him.
Appellant then attacked Flores. Flores remembered being on the ground as appellant
was kicking and punching her. Flores had fallen to the ground near some beer bottles
and picked up a number of these bottles and threw them at appellant. She also hit him
in the head with a bottle as he continued hitting her. She got to her feet and ran around
the car toward the house. She tried to get inside but Aguirre would not open the door
because appellant had tried to punch her as well.
According to Flores, appellant again violently approached her. Flores presumed
that it was during this stage of the altercation that appellant stabbed her although she
was unaware of her stab wounds until later when she was inside receiving medical care
from paramedics. Flores did not see a knife during any stage of the altercation. She
testified that, as a result of the wounds, she had to go to the hospital. She testified that
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she underwent surgery and that once, during her approximately three-week stay in the
hospital, she was transferred to ICU after she had stopped breathing. Flores admitted
to having drunk a great deal that night and that her recollection of the night came only in
“bits and pieces.”
Aguirre testified that after she and Flores returned home, Flores and appellant
left together in appellant’s car, perhaps to search for more beer, and were gone for 30
to 45 minutes. When they returned, appellant came into the house but Aguirre directed
him to go outside. He complied and waited outside for Flores for a little while then came
back in the house and tried to get in the bedroom. Aguirre again told him to leave the
house. Appellant went back outside and waited on the porch to talk to Flores.
Flores joined him while Aguirre remained inside. Aguirre heard Flores and
appellant arguing. She looked outside and saw appellant punching Flores by the front
door; she did not see him stab her. Aguirre moved to go out and assist Flores but was
denied exit by appellant deliberately pushing the door closed. Appellant also tried to
punch Aguirre, causing damage to the screen door. She explained that only appellant
and Flores were outside the house that night. Appellant eventually left, and Aguirre
helped Flores inside and noticed that she was bleeding “bad.”
Appellant was charged with aggravated assault with a deadly weapon. On
September 21, 2009, over two and a half months before trial began, the trial court
granted the State’s motion to amend the indictment. The two-day trial began on
December 8. At trial, Flores and Aguirre provided their foregoing accounts of the night.
Aguirre’s fifteen-year-old twin children both testified that only appellant and Flores were
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outside that night. Neither saw appellant stab Flores. The responding officer testified
that a brief search of the scene yielded no knife, and no knife was found on appellant.
No one disputes that there was an altercation between appellant and Flores.
Likewise, it is undisputed that Flores sustained serious wounds that night. According to
Dr. Thomas Parsons, a forensic pathologist who examined photographs of the wounds
and a medical report of a CT scan, the wounds “were most likely caused by a knife or
knife-like object.” He described the wound characteristics that led him to that
conclusion and explained the risks posed by the fact that Flores’s liver was lacerated.
Appellant did not testify. In his defense, he recalled Aguirre’s daughter who
testified that, before Flores went outside to talk to appellant, Flores said to her boyfriend
on the phone that she was going outside to “kick his A.”
On December 9, the jury returned its guilty verdict. Appellant timely appealed
and brings to this Court two issues. In his first issue, he challenges the factual
sufficiency of the evidence. He focuses on the evidence to prove that he used a deadly
weapon but also challenges the element of intent. In his second issue, he contends the
pretrial amendment of the indictment was impermissible as one that prejudiced his
substantial rights by impairing his ability to prepare his defense.
Factual Sufficiency of the Evidence
Standard of Review
We begin our factual sufficiency review under the assumption that the evidence
is legally sufficient. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009). In a
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factual sufficiency review, we view all of the evidence in a neutral light to determine
whether the jury's verdict of guilt was rationally justified. See Watson v. State, 204
S.W.3d 404, 415 (Tex.Crim.App. 2006). We give deference to the trier of fact’s
determination if supported by evidence and may not order a new trial simply because
we may disagree with the verdict. Id. at 417. We may reverse for factual insufficiency
only when there is some objective basis in the record that demonstrates that either (1)
the evidence supporting the verdict is so weak that the verdict seems clearly wrong and
manifestly unjust, or (2) the great weight and preponderance of the evidence contradicts
the jury’s verdict. See Laster, 275 S.W.3d at 518. An appellate opinion addressing
factual sufficiency must include a discussion of the most important evidence that
appellant claims undermines the jury’s verdict. Simms v. State, 99 S.W.3d 600, 603
(Tex.Crim.App. 2003). When a defendant’s version of the facts conflicts with other
evidence, it is the jury’s prerogative to judge the credibility of the evidence and to
ascribe the weight to be given to the evidence. See Jones v. State, 944 S.W.2d 642,
648–49 (Tex.Crim.App. 1996).
Deadly weapon finding
Appellant maintains that Flores’s wounds could have been inflicted accidentally
or by a third party, though no third party was identified. Appellant relies on the following
evidence or lack of evidence to support his contention that the evidence is factually
insufficient to support the deadly weapon finding: (1) no testimony that appellant was
seen in possession of a knife, (2) no knife recovered from scene or from appellant, (3)
no testimony from witnesses that anyone saw appellant stab Flores, (4) witness
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testimony limited to seeing appellant punch or hit Flores, (5) Flores’s lack of recollection
of being stabbed, (6) inconsistencies between Flores’s testimony and statement to
police, (7) evidence of broken beer bottles on the ground during admitted altercation in
which Flores was on the ground, and (8) the fact that witnesses to the altercation never
went outside to see if another person was present.
Based on the “possibilities” posed by the evidence,2 appellant urges this Court to
find the evidence factually insufficient. While we do note that the state of the evidence
is such that a number of things could have happened that night, we are not charged
with determining the plausibility of alternate theories. While the existence of other
reasonable hypotheses may be relevant to our review of the factual sufficiency of the
evidence, it is not determinative. See Wilson v. State, 7 S.W.3d 136, 141
(Tex.Crim.App. 1999). In fact, we “may not find the evidence to be factually insufficient
merely because there are ‘reasonably equal competing theories of causation.’”
Steadman v. State, 280 S.W.3d 242, 247 (Tex.Crim.App. 2009) (quoting Goodman v.
State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001)). The evidence cited by appellant as
supporting alternative theories of how Flores sustained her injuries do not form an
objective basis demonstrating that the great weight and preponderance of the evidence
contradicts the jury’s verdict. See Laster, 275 S.W.3d at 518.
Turning now to our review of the evidence supporting the State’s allegations
rather than alternative theories, we note that the State need not introduce the object into
2
To the extent that appellant advances his argument in the “reasonable
alternative hypothesis” paradigm, we note that such construct was overruled in Geesa
v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991).
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evidence for the trier of fact to find that such object was a deadly weapon. See Morales
v. State, 633 S.W.2d 866 (Tex.Crim.App. 1982). Even without a description of the
weapon, the victim’s injuries can, by themselves, be a sufficient basis for inferring that
an appellant used a deadly weapon. See Tucker v. State, 274 S.W.3d 688, 691–92
(Tex.Crim.App. 2008); see also Morales, 633 S.W.2d at 868–69 (photograph of deep
slash requiring stitches and running from below victim’s earlobe across her cheek to the
corner of her mouth was sufficient to show that a deadly weapon was used).
Here, there is evidence that Flores suffered five stab wounds that required
surgery and a three-week stay in the hospital. At one point, she was transferred to ICU
when she stopped breathing. Further, Dr. Parsons, an experienced forensic
pathologist, testified that he examined photographs of the wounds and a medical report
of a CT scan performed on Flores. In his opinion and based on his review of the
photographs and medical report, Flores’s wounds “were most likely caused by a knife or
knife-like object.” He detailed how the elasticity of the skin generally causes such
wounds to have the “bowed” appearance visible in the photographs. He testified, too,
that the wounds displayed characteristics of having been inflicted by an object having
one sharp edge. He also explained how the linear cuts on the shirt Flores was wearing
were also consistent with having been caused by a knife or knife-like object. He
testified that Flores’s injuries could have caused death. One of the wounds lacerated
her liver, which required surgery and posed a serious risk of severe blood loss and
infection within the abdominal wall.
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When presented with the theory that a broken bottle caused Flores’s injuries,
Parsons responded that injuries inflicted by broken bottles “typically have a fairly
pronounced arc of circumference” not present in Flores’s wounds. While he
acknowledged that it was theoretically possible that the wounds were inflicted by a
piece of a bottle, if a very specifically-shaped shard of glass was used, Parsons
generally discounted the theory. Though there was no evidence identifying the
instrument or object used, Parsons specifically testified that a “deadly weapon” caused
Flores’s injuries. See Tucker, 274 S.W.3d at 692. So, based on Flores’s account of her
injuries, medical records, photographs depicting her wounds and blood loss, and expert
medical testimony regarding the nature and source of the wounds, the jury could have
reasonably found that appellant used a deadly weapon.
The absence of evidence specifically identifying or describing the weapon used
does not render the foregoing evidence of a deadly weapon so weak that the verdict is
clearly wrong or manifestly unjust. See Laster, 275 S.W.3d at 518. The evidence
supporting the deadly weapon finding is factually sufficient. We overrule this issue.
Intent
In a less-developed contention, appellant maintains that the evidence is
insufficient to show that he acted with the requisite intent. It is an offense to
intentionally, knowingly, or recklessly cause injury to another. TEX. PENAL CODE ANN. §
22.01(a)(1). Again, appellant points to the possibility that Flores’s wounds were inflicted
accidentally or by a third party. The State has not specifically addressed the
contentions regarding intent by brief or by oral argument.
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The only evidence of appellant’s intent, he argues, are Flores’s wounds.
However, there is also evidence that the two were arguing and cursing outside before
the altercation and that appellant hit and punched Flores and chased her around the
car. Further, Flores testified that appellant accused her of stealing from him. Intent
may be inferred from the circumstances surrounding the act. See Guevara v. State,
152 S.W.3d 45, 50 (Tex.Crim.App. 2004). Factually sufficient evidence supports the
finding that appellant acted with the requisite intent. We overrule this issue.
Amendment of Indictment
The indictment originally charged that appellant used a “deadly weapon, to wit: a
knife.” Over two and a half months before trial and over objection, the trial court allowed
the State to amend the indictment to allege that appellant used a “deadly weapon, to
wit: a knife or some unknown object.” Citing Flowers v. State, 815 S.W.2d 724, 729
(Tex.Crim.App. 1991), appellant argues that the amendment prejudiced his substantial
rights by impairing his ability to present a defense to the deadly weapon allegations.
Applicable Law and Standard of Review
Article 28.10 governs the amendment of an indictment and provides that, “after
notice to the defendant, a matter of form or substance in an indictment or information
may be amended at any time before the date the trial on the merits commences.” TEX.
CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 2006). However, “[a]n indictment or
information may not be amended over the defendant’s objection as to form or substance
if the amended indictment or information charges the defendant with an additional or
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different offense3 or if the substantial rights of the defendant are prejudiced.” Id. art.
28.10(c). In Flowers, the Texas Court of Criminal Appeals determined that a review of
the entire record is appropriate to determine whether an amendment was prejudicial
under the “substantial rights” provision of article 28.10(c). 815 S.W.2d at 729. Based
on appellant’s position, then, we review the record to determine whether the pretrial
amendment impaired his ability to prepare his defense.
Discussion
Appellant incorporates his factual insufficiency points to support his contention
that the amendment was prejudicial to his substantial rights. Appellant adds that the
amendment “substantively altered the nature of the weapon that was allegedly used so
that, in essence, any object could qualify in this case as a ‘deadly weapon.’”
As we have concluded, the evidence at trial was factually sufficient to support the
deadly weapon finding. And nothing in the record seems to suggest the amendment
impaired appellant’s ability to prepare a defense. His defense centered on testimonial
inconsistencies and evidentiary gaps leaving open the possibilities that Flores was
stabbed accidentally or by a third party. The amendment arguably drew attention to the
fact that the State was not certain of the precise nature of the object used.
Nor did it have to be; again, the State need not introduce the object used as a
deadly weapon. See Tucker, 274 S.W.3d at 691–92. Further, the amendment did not
appear to alter the State’s theory although it could be said to broaden or alter the scope
3
A different offense, as contemplated by article 28.10(c), means a different
statutory offense. Flowers, 815 S.W.2d at 727. Appellant does not specifically
challenge the amendment in terms of charging an additional or different offense.
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of evidence available to prove appellant’s use of a deadly weapon. With respect to the
scope of evidence, we return to Flowers:
Changing an element, such as the name of the owner, changes the
evidence needed to prove the offense. If such amendment is made on the
basis of the same incident upon which the original indictment is based, it
will, in most cases, be permissible under the substantial rights provision
[of article 28.10(c)] after a review of the record for prejudice.
815 S.W.2d at 729. Here, the amendment related to the same incident forming the
basis of the original indictment. Appellant’s defense focusing on the fact that no one
ever saw a knife and urging the possibility that the injuries could have been caused by
beer bottles or an unidentified third party, it seems, would have remained the same
regardless of the amendment.4 Further, the jury was charged on the applicable
statutory definition of “deadly weapon.” See TEX. PENAL CODE ANN. § 1.07(a)(17)(B)
(Vernon Supp. 2009). Finally, we note that appellant had approximately two and one-
half months’ notice of the amendment, a total of seventy-eight days. The pretrial
amendment did not violate article 28.10(c) by prejudicing appellant’s substantial rights.
We overrule appellant’s second issue.
4
The amended language “or some unknown object” actually appears twice in the
indictment. Following the amendment, the indictment alleged that appellant
intentionally, knowingly, or recklessly cause[d] bodily injury to [ ] Flores by
cutting or stabbing the said [ ] Flores with a knife or some unknown object
and the Defendant did then and there use or exhibit a deadly weapon, to-
wit: a knife or some unknown object, during the commission of said
assault.
So, when the amended indictment is read in its entirety, the amendment becomes less
broad in that the State must still prove that the object, even if unknown, cut or stabbed
Flores. That is, the scope of the evidence available to prove use of a deadly weapon is
not as wide as it might, at first glance, appear. With that in mind, it would appear that
appellant’s defensive theory would have to change little to address the amendment.
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Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
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