                                    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.




        1
            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

                                             2
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

                                            3
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
                                             4
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).
                                             6
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.




                                             7
         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.

                                            8
       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


                                             9
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.
                                            10
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.
                                            11
                                      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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