Opinion filed April 16, 2015




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-13-00099-CR
                                   __________

                       GARY JAY MCCOY, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 161st District Court
                                Ector County, Texas
                           Trial Court Cause No. B-40,007


                      MEMORANDUM OPINION
       The grand jury indicted Gary Jay McCoy of one count of aggravated assault
and one count of assault by strangulation.       The jury convicted Appellant of
aggravated assault as alleged in Count One of the indictment and found Appellant
not guilty of assault by strangulation as alleged in Count Two of the indictment. See
TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). After implicitly finding the
enhancement paragraphs true, the trial court assessed Appellant’s punishment at
confinement for a term of thirty-five years and a fine of $10,000. The trial court
sentenced Appellant accordingly as to Count One and entered a judgment of
acquittal as to Count Two. Appellant raises six issues on appeal. We affirm.
      In his first issue, Appellant claims that the trial court erred when it denied his
motion for directed verdict. Appellant challenges the sufficiency of the evidence to
support his conviction in his second issue. Because we treat a challenge to the trial
court’s denial of a motion for directed verdict as a challenge to the sufficiency of the
evidence, we will review Appellant’s first and second issues together.              See
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We review the
sufficiency of the evidence under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we examine all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and any
reasonable inferences from it, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
      Appellant contends that the evidence was insufficient to support his
conviction because the victim did not suffer “serious bodily injury” but suffered only
“bodily injury.” A person commits the offense of assault if he “intentionally,
knowingly, or recklessly causes bodily injury to another.” PENAL § 22.01(a)(1)
(West Supp. 2014). If a person “causes serious bodily injury to another,” the person
commits aggravated assault. Id. § 22.02(a)(1). “Bodily injury” is defined as
“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8).
“Serious bodily injury” is defined as “bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted loss or
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impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46).
Appellant argues that the victim’s loss of two teeth did not constitute serious bodily
injury. We disagree.
      Rosemary Wilson, Appellant’s ex-girlfriend, is the victim in this case. Wilson
testified that she tried to break up with Appellant and told him that he needed to
leave or that she would leave; they were living together at the time. When Wilson
tried to walk out the door, Appellant grabbed her around the neck, pulled her back,
threw her on the couch, and started choking her. He called her a “whore” and spit
in her face. Eventually, he stopped choking her, and she went to their bedroom.
Appellant followed her into the bedroom and yelled at her about needing money.
When she gave him only $7, he threw her down on the bed, pinned her down, started
choking her again, and hit her in the face with his knee. He had his knee on her face
while he held her down; he applied so much pressure to her face with his knee that
he caused two of her teeth to pop out. Her mouth was bleeding “[p]retty bad.”
Wilson testified that she could not call the police that night because Appellant cut
the phone lines and took her cell phone. She was able to call the police the next
morning when Appellant left. Appellant was arrested when he returned.
      Caley Frederick, a police officer with the Odessa Police Department, testified
that she was the first one to arrive at the scene. Wilson told Officer Frederick that
two of her teeth had been knocked out. Officer Frederick observed that two of
Wilson’s teeth were missing, that her mouth was swollen, and that she had some
blood on her shirt. Officer Michael McClendon assisted Officer Frederick and
testified that Wilson was missing a tooth from her top gum and a tooth from her
bottom gum and that she was bleeding from both of those areas. He also noticed
that she had bloodstains on her shirt and that there were blood droplets on the wall,
sheets, bedspread, and mattress.


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      A person suffers serious bodily injury if the person has a “protracted loss . . .
of any bodily member or organ.” Id. Teeth are separate, definable parts of the body
and, as such, constitute a “bodily member or organ.” Lenzy v. State, 689 S.W.2d
305, 310 (Tex. App.—Amarillo 1985, no pet.); see also Hatfield v. State, 377 S.W.2d
647, 649 (Tex. Crim. App. 1964) (holding that evidence of injured party’s cut lip,
loss of some teeth, hospitalization, and a stiff neck was sufficient to sustain jury’s
finding that victim suffered serious bodily injury). Appellant points out that the State
did not present any medical testimony to establish the severity and extent of
Wilson’s dental injuries, that the State did not introduce any photographs of
Wilson’s injuries, and that Wilson did not testify as to how the missing teeth caused
her problems or pain. However, there is no dispute that Appellant caused Wilson to
lose two teeth and, therefore, lose two bodily members or organs. We have reviewed
the evidence in the light most favorable to the verdict, and we hold that a rational
trier of fact could have found beyond a reasonable doubt that Wilson suffered serious
bodily injury. We overrule Appellant’s first and second issues.
      In his third issue, Appellant argues that he was denied effective assistance of
counsel because his trial counsel failed to request a jury instruction on the lesser
included offense of assault. In order to determine whether Appellant’s trial counsel
rendered ineffective assistance at trial, we must first determine whether he has
shown that his counsel’s representation fell below an objective standard of
reasonableness and, if so, then determine whether there is a reasonable probability
that the result would have been different but for his counsel’s errors. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 772
(Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim.
App. 1986). We must indulge a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance, and Appellant must
overcome the presumption that, under the circumstances, the challenged action could
                                           4
be considered trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d
707, 712 (Tex. Crim. App. 2000). Where the record is silent, we cannot speculate
on trial counsel’s strategy. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.
1999). Thus, an allegation of ineffective assistance of counsel must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. Generally, the record on direct appeal will not be sufficient to
show that trial counsel’s performance was so lacking as to overcome the
presumption of reasonable conduct. Id. at 813–14.
      Here, Appellant has not shown that his counsel’s representation fell below an
objective standard of reasonableness because, even if counsel had requested a lesser
included instruction in the jury charge, Appellant was not entitled to such an
instruction. We perform a two-step analysis to determine whether a defendant is
entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d 524, 528,
535 (Tex. Crim. App. 2007). First, we look to whether the offense is a lesser
included offense of the charged offense, and second, we look to whether there was
some evidence adduced at trial that would permit the jury to rationally find that, if
the defendant was guilty, he was guilty only of the lesser included offense. Id. at
535–36. The lesser included offense must be “a valid, rational alternative to the
charged offense.” Id. at 536 (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex.
Crim. App. 1999)) (internal quotation marks omitted).
      An offense may be a lesser included offense if the lesser offense “differs from
the offense charged only in the respect that a less serious injury or risk of injury to
the same person, property, or public interest suffices to establish its commission.”
TEX. CODE CRIM. PROC. ANN. art. 37.09(2) (West 2006). Assault falls into this
category because it requires proof of a less serious injury than does aggravated
assault—bodily injury compared to serious bodily injury.            Compare PENAL
§ 22.01(a)(1) (assault), with PENAL § 22.02(a)(1) (aggravated assault). The conduct
                                           5
constituting the assault must be the same as the conduct alleged for the aggravated
assault in order for assault to be a lesser included offense. Irving v. State, 176
S.W.3d 842, 845–46 (Tex. Crim. App. 2005). Here, the conduct is the same—
Appellant knocked out two of Wilson’s teeth by hitting Wilson in the mouth with
his knee. Therefore, the assault here is a lesser included offense of aggravated
assault. However, there is no reasonable view of the evidence in this case that would
permit a jury to rationally find that, if the defendant was guilty, he was guilty only
of the lesser offense of assault. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim.
App. 2001) (holding that a reasonable jury could not have found the defendant guilty
of only misdemeanor assault because it was unquestionable that the victim suffered
serious bodily injury). The evidence was undisputed that two of Wilson’s teeth were
knocked out causing her to suffer serious bodily injury; therefore, there is not “some
evidence” that Wilson suffered only bodily injury. See id. at 589.
      Appellant was not entitled to an instruction on the lesser included offense of
assault. Because defense counsel’s request for such an instruction would have been
futile, defense counsel’s performance was not deficient. See Kinnamon v. State, 791
S.W.2d 84, 97 (Tex. Crim. App. 1990) (holding that failure to request an instruction
on a lesser included offense is not deficient performance where the evidence does
not authorize the instruction), overruled on other grounds by Cook v. State, 884
S.W.2d 485, 491 (Tex. Crim. App. 1994). Furthermore, the record is silent as to
defense counsel’s reasoning for not requesting the lesser included instruction. We
agree with the State’s contention that “it was possible that defense counsel was
pursuing an all-or-nothing trial strategy.” Appellant has not shown that his counsel’s
representation fell below an objective standard of reasonableness. See Strickland,
466 U.S. at 687. We overrule Appellant’s third issue.
      Appellant argues in his fourth issue that the trial court erred when it overruled
Appellant’s objection to the State’s late notice of enhancement and sentenced him
                                          6
under the habitual offender statute. Appellant also argues that the late notice violated
his right to due process. In his fifth issue, Appellant asserts that the trial court erred
when it denied his motion for new trial on this same ground. The record shows that
the State did not give notice that it was seeking to enhance Appellant’s punishment
until the afternoon of the last day of the guilt/innocence phase of the trial. The jury
reached the guilty verdict that same day, a Tuesday evening, and the trial court set
the punishment phase to begin on that Thursday morning. The prosecutor informed
the trial court that defense counsel had indicated that he had some issues with the
late filing. The prosecutor further told the trial court that “[t]he State has no
objections if he needs more time to prepare for that enhancement.” Defense counsel
responded that he could be ready by Thursday to respond to the State’s late filing,
that he did not believe it was appropriate for the State to file the enhancement
allegations after the trial had already started, and that he believed Appellant was
entitled to “way more notice than that.” The trial court said that it would take a look
at the issue. When the punishment phase commenced, Appellant’s trial counsel
represented that he and Appellant had not seen the pen packets regarding the alleged
prior convictions. The trial court asked defense counsel and Appellant if they
wanted some more time to look into the enhancement allegations and if they wanted
to postpone the punishment hearing for a week or two. Appellant declined the trial
court’s offer to continue the punishment phase and said that he was “aware of them.”
      Under a due process analysis, the issue is whether a defendant “received
sufficient notice of the enhancements so that he had an opportunity to prepare a
defense to them.” Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).
“[W]hen a defendant has no defense to the enhancement allegation and has not
suggested the need for a continuance in order to prepare one, notice given at the
beginning of the punishment phase satisfies” due process. Villescas v. State, 189
S.W.3d 290, 294 (Tex. Crim. App. 2006). Appellant claims that he had a viable
                                            7
defense to one of the two enhancement allegations and that he did not have time to
prepare such defense. However, the trial court offered Appellant and his defense
counsel more time to prepare, but Appellant refused the continuance. By refusing
the continuance, Appellant waived his objection to the State’s late notice of
enhancement. Appellant’s fourth and fifth issues are overruled.
       In his sixth and final issue, Appellant contends that, under Section 12.42(d)
of the Texas Penal Code, the trial court illegally sentenced him to a term of thirty-
five years in prison when the trial court failed to find as true one of the State’s
enhancement allegations. As to that same enhancement paragraph, Appellant also
contends that the evidence was insufficient to prove beyond a reasonable doubt that
the enhancement was true. At the conclusion of the punishment phase, the trial court
did not expressly state that it found the enhancement paragraphs to be true, nor does
the judgment indicate that the trial court found the enhancement paragraphs to be
true.1 The trial court did, however, inform Appellant that the minimum punishment
was twenty-five years and that the maximum punishment was life. “Although it is
preferred that trial courts read the enhancement paragraphs orally and find them to
be true or not true on the record, a trial court does not err by not doing so.” Seeker v.
State, 186 S.W.3d 36, 39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). “A trial
court makes an implied finding of true to an enhancement allegation when the record
establishes the truth of that allegation.” Torres v. State, 391 S.W.3d 179, 183 (Tex.
App.—Houston [1st Dist.] 2012, pet. ref’d); see also PENAL § 12.42(d) (“[I]f it is
shown on the trial of a felony offense . . . that the defendant has previously been
finally convicted of two felony offenses, . . . the defendant shall be punished by


       1
         The trial court did state that the evidence showed that Appellant had two prior convictions;
however, the trial court referenced a 1987 burglary-of-a-habitation case and a 1987 possession-of-
marihuana case. The 1987 burglary-of-a-habitation case was not the burglary conviction that the State
alleged in its first enhancement paragraph. The burglary conviction that the State alleged in its first
enhancement paragraph was a 1986 burglary-of-a-building case.

                                                  8
imprisonment . . . for life, or for any term of not more than 99 years or less than 25
years.” (emphasis added)).
      In order for a defendant’s punishment to be enhanced under Section 12.42(d),
the State must prove beyond a reasonable doubt that the defendant has had two prior
felony convictions and that the first prior conviction became final before the
defendant committed the second prior offense. Jordan v. State, 256 S.W.3d 286,
290–91 (Tex. Crim. App. 2008). The State must also show that the second prior
conviction became final before the defendant committed the offense on which the
trial court is currently assessing punishment. Id.
      Here, the State alleged that Appellant had been previously convicted of
burglary of a building on June 26, 1986, and of possession of marihuana in an
amount of less than five pounds but more than four ounces on July 15, 1987. The
State further alleged that Appellant was convicted of the 1986 burglary charge in
Cause No. 81-114-K in the 26th District Court of Williamson County and that
Appellant was convicted of the 1987 possession charge in Cause No. B-18,711 in
the 161st District Court of Ector County. During the punishment phase, the State
offered, and the trial court admitted, certified judgments of conviction as to each of
the enhancement allegations. State’s Exhibit No. Two shows that Appellant was
convicted of burglary of a building on August 13, 1981. The judgment of conviction
contains the same cause number, court, and county as alleged in the first
enhancement paragraph. The judgment also reflects that punishment was assessed
at six years but that the court suspended his sentence and placed him on probation.
The State filed a motion to revoke on October 25, 1983, and the trial court revoked
his probation on June 26, 1986. Appellant argues that the evidence was insufficient
to show that he was convicted of a 1986 burglary because the judgment of conviction
shows that he was convicted in 1981. We disagree. Although Appellant was
convicted in 1981 of the burglary-of-a-building charge, his conviction did not
                                          9
become final for enhancement purposes until 1986 when the trial court revoked his
probation and sentenced him to confinement for a term of three years. See Ex parte
Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992) (“[A] probated sentence is
not a final conviction for enhancement purposes unless it is revoked.”); Cromeans v.
State, 268 S.W.2d 133, 135 (Tex. Crim. App. 1954) (“A conviction in which the
sentence is suspended is not such a final conviction as will support an enhancement
of punishment, unless the suspension has been revoked.”). Therefore, the evidence
showed that Appellant was convicted of burglary in Williamson County and that his
conviction became final on June 26, 1986. Appellant did not offer any contrary
evidence during the punishment phase. The record supports a finding of true as to
the prior conviction alleged in the first enhancement paragraph.
      Appellant does not challenge the sufficiency of the evidence to support a
finding of true as to the prior conviction for possession of marihuana as alleged in
the second enhancement paragraph. Moreover, the punishment evidence shows that
a judgment of conviction for possession of marihuana in an amount of five pounds
or less but more than four ounces was entered against Appellant on July 2, 1987, and
that the trial court sentenced Appellant on July 15, 1987. The judgment also reflects
the same cause number, court, and county as that alleged in the second enhancement
paragraph.      In addition, the judgment reflects that the offense occurred on
February 16, 1987, which is after the date the burglary-of-a-building conviction
became final.
      We hold that the State met its burden of proof to show that Appellant’s
punishment should be enhanced under Section 12.42(d), and we further hold that the
trial court did not illegally sentence Appellant to confinement for a term of thirty-
five years.     Appellant’s punishment falls within the range provided for by
Section 12.42(d). Appellant’s sixth issue is overruled.


                                         10
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


April 16, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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