       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00541-CR


                                   Robert Thomas, Appellant

                                                 v.

                                  The State of Texas, Appellee


               FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY
       NO. D-1-DC-17-208383, THE HONORABLE BOB PERKINS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Robert Thomas was charged with aggravated assault.           See Tex. Penal Code

§ 22.02(a). The indictment also contained enhancement paragraphs alleging that Thomas had

previously been convicted of four felony offenses. See id § 12.42. At the end of the guilt-or-

innocence phase, the jury found Thomas guilty of the charged offense. Thomas elected to have

the district court assess his punishment. The district court found the enhancements to be true and

sentenced Thomas to thirty years’ imprisonment. On appeal, Thomas challenges the sufficiency of

the evidence supporting his conviction. We will affirm the district court’s judgment of conviction.


                                        BACKGROUND

               Thomas was charged with committing aggravated assault against Carla Thompson.

The indictment alleged two alternative ways by which Thomas committed the offense. First, the

indictment alleged that Thomas intentionally, knowingly, or recklessly “cause[d] serious bodily
injury to . . . Thompson, by stabbing or cutting her with a knife or sharp object.” Second, the

indictment alleged that Thomas intentionally, knowingly, or recklessly “cause[d] bodily injury to

. . . Thompson, by stabbing her with a knife” and used and exhibited “a deadly weapon, to-wit: a

knife, during the commission of the said assault.”1

               During the trial, several witnesses testified, including Thompson, Thomas, and

Sarah Jordan, who was a crime-scene specialist. Various exhibits pertaining to the alleged assault

were admitted into evidence at trial, including Thompson’s medical records, a recording of the 911

call that she made shortly after the incident, and photographs of the injuries that she sustained.

               In her testimony, Thompson explained that she went to visit her cousin on the day

in question, that her cousin was dating Thomas, that he was at the apartment, that he was

drinking alcohol, that he became “very intoxicated,” that he became angry, and that he insulted

her. Next, Thompson related that when she reached for her beer, she felt something hit her but

was unsure initially what it was, but she stated that she knew that she had been “cut” because she

could taste blood. Further, Thompson recalled that the wound was on her temple and that she

lost a lot of blood. Thompson also testified that she left the apartment to call the police and that

as she was leaving, she heard someone say, “Hide the knife,” and heard her cousin ask Thomas,

“Why did you do that? Why did you cut her?” Moreover, Thompson explained that she was

admitted into the hospital for her injury and that her wound required thirteen stitches to close.

               After Thompson finished testifying, Sarah Jordan was called to the stand. In her

testimony, Jordan explained that she was a crime-scene specialist; that she observed “reddish-

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          The indictment also contained the following alternative allegation: Thomas committed
aggravated assault by “intentionally and knowingly threaten[ing] . . . Thompson with imminent
bodily injury” and using and exhibiting “a deadly weapon, to-wit: a knife, during the commission
of the said assault.” However, the State later abandoned that alternative allegation, and the
alternative language was not included in the jury charge.
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brown stains” in multiple areas of the home, including the floor and the bedroom door; that there

“was blood located throughout the apartment”; and that the police discovered a knife under the

stove when they pulled it away from the wall.

               In his testimony, Thomas related that Thompson walked into the bedroom while he

was in there eating cantaloupe, that he told her to leave, that she grabbed his cane and hit him

“in the head with it,” and that he “slashed out” in response, causing her to “g[e]t cut.” When

describing the incident again later, Thomas admitted that he injured Thompson but stated that he

did not act “intentionally” and only lashed out in self-defense in response to her striking him.

Further, Thomas admitted that the knife found under the stove was the knife that he used to

injure Thompson and that he threw the knife “down there” when he learned that the police had

been called.

               After considering the evidence presented at trial, the jury convicted Thomas of the

charged offense.


                                         DISCUSSION

               On appeal, Thomas contends that the evidence presented during trial “was legally

insufficient to support the jury’s” conviction for aggravated assault “under either” of the

alternative ways “alleged in the indictment.”

               As set out above, the indictment listed two alternative ways by which Thompson

allegedly committed aggravated assault. First, the indictment alleged that Thomas intentionally,

knowingly, or recklessly caused serious bodily injury by stabbing or cutting Thompson. Second,

the indictment alleged that Thomas intentionally, knowingly, or recklessly caused bodily injury

by stabbing Thompson while using and exhibiting a deadly weapon (a knife). See Tex. Penal


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Code §§ 22.01 (providing that person commits assault if he “intentionally, knowingly, or recklessly

causes bodily injury to another”), .02(a) (stating that person commits aggravated assault if he

commits assault and “causes serious bodily injury to another” or “uses or exhibits a deadly

weapon during the commission of the assault”); see also Landrian v. State, 268 S.W.3d 532, 533

(Tex. Crim. App. 2008) (explaining that “gravamen of” aggravated assault “is ‘causing bodily

injury’”). Because the indictment alleged alternative ways of committing the same offense, the

jury did “not have to be unanimous on the aggravating factors of whether” the assault was an

aggravated one because it resulted in “‘serious’ bodily injury or” because “appellant used a

deadly weapon.” See Landrian, 268 S.W.3d at 533. “[W]hen multiple theories are submitted to

the jury, the evidence is sufficient to support a conviction so long as the evidence is sufficient to

support conviction for one of the theories submitted to the jury.” Guevara v. State, 152 S.W.3d

45, 52 (Tex. Crim. App. 2004).

               Under a legal-sufficiency standard of review, appellate courts view the evidence

in the light most favorable to the verdict and determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). When performing this review, an appellate court must bear in mind

that it is the factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to

make “reasonable inferences from basic facts to ultimate facts.” Id.; see also Tex. Code Crim.

Proc. art. 36.13 (explaining that “jury is the exclusive judge of the facts”). Moreover, appellate

courts must “determine whether the necessary inferences are reasonable based upon the combined

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

Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts

presume that conflicting inferences were resolved in favor of the conviction and “defer to that

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determination.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition,

courts must bear in mind that “direct and circumstantial evidence are treated equally” and that

“[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor”

and “can be sufficient” on its own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d).

               In reviewing the legal sufficiency of the evidence supporting a conviction,

appellate courts consider “all evidence that the trier of fact was permitted to consider, regardless

of whether it was rightly or wrongly admitted.” Demond v. State, 452 S.W.3d 435, 445 (Tex.

App.—Austin 2014, pet. ref’d) (emphasis added). The evidence is legally insufficient if “the

record contains no evidence, or merely a ‘modicum’ of evidence, probative of an element of the

offense” or if “the evidence conclusively establishes a reasonable doubt.” Kiffe, 361 S.W.3d at

107 (quoting Jackson, 443 U.S. at 320). Furthermore, reviewing courts “measure the sufficiency

of the evidence by the so-called hypothetically correct jury charge, one which 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 adequately describes the

particular offense for which the defendant is tried.” See DeLay v. State, 465 S.W.3d 232, 244

n.48 (Tex. Crim. App. 2014).

               On appeal, Thomas does not dispute that he injured Thompson with a knife or that

he had the requisite mental state for the offense and in fact concedes in his brief that the evidence

shows that he injured her. Instead, Thomas presents a limited sufficiency challenge to the

alternative ways by which he was alleged to have committed aggravated assault. Regarding the

first way, Thomas contends that the evidence is insufficient to support his conviction because the

evidence did not establish that Thompson sustained serious bodily injury during the assault. See

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Tex. Penal Code § 1.07(a)(46) (defining “[s]erious bodily injury”). On the contrary, Thomas argues

that the evidence established that Thompson sustained only bodily injury. See id. § 1.07(a)(8)

(defining “[b]odily injury”). Regarding the second way, which alleged that Thompson suffered

bodily injury rather than serious bodily injury, Thomas asserts that the evidence is insufficient to

support his conviction because the evidence did not establish that he stabbed Thompson and

instead urges that the evidence showed that he cut Thompson.

               As support for his assertion that the evidence is insufficient to show that

Thompson was stabbed, Thomas points to a portion of her testimony in which she stated that

she “got cut” trying to grab her beer and to a portion of his own testimony in which he stated

that he “slashed out. That’s how she got cut.” Similarly, Thomas refers to another portion of

Thompson’s testimony and to portions of her medical records indicating that she received

thirteen stitches, which he asserts indicates that she was cut, not stabbed. Finally, Thomas notes

that the first allegation in the indictment was amended to add the phrase “or cutting” to allege

that he caused serious bodily injury by “stabbing or cutting,” contends that the need for the

amendment indicates that the evidence did not establish that a stabbing occurred, and highlights

that no such amendment was made to the second allegation.

               As an initial matter, we note that although Thomas insists that there is a

significant distinction between the terms “cut” and “stab,” those words have similar meanings.

For example, the word “stab” is defined as “to wound or pierce by the thrust of a pointed weapon,”

and the word “cut” is defined as “to penetrate with or as if with an edged instrument.” See

Merriam-Webster Collegiate Dictionary 285, 1139 (10th ed. 2000). Additionally, various courts

of appeals have recognized the similarity of those terms. See Daugherty v. State, 216 S.W.2d 200,

200-01 (Tex. Crim. App. 1948) (on reh’g) (stating that “[e]vidently a stab with a knife and a cut

                                                 6
with a knife mean the same thing, although there might be a difference in the angle upon which

the knife penetrated”); Dominguez v. State, 355 S.W.3d 918, 921, 922 (Tex. App.—Fort Worth

2011, pet. ref’d) (rejecting argument that evidence was insufficient to support conviction because

indictment alleged that victim was cut but that evidence showed victim was stabbed and

explaining that “the English language” did not support defendant’s contention); Guerrero v.

State, 964 S.W.2d 32, 37 (Tex. App.—San Antonio 1997, pet. ref’d) (referring to various similar

definitions for “stab” and “cut” and noting that “it is common knowledge that an individual who

is stabbed with a knife is cut”); Jolly v. State, 774 S.W.2d 94, 95 (Tex. App.—Beaumont 1989,

pet. ref’d) (explaining that “[t]he difference between serious cuts and numerous slashes and

stabbing, we decide, is an ethereal, non-practical, non-pragmatic distinction, if it is a distinction

at all”). Accordingly, it is not entirely clear why the jury could not have reasonably inferred from

the portions of testimony that Thomas highlights that Thompson was stabbed. Similarly, it is not

entirely clear why the description of Thompson’s treatment as requiring thirteen stitches would

foreclose a reasonable inference that she was stabbed. Cf. Richardson v. State, No. 01-86-00618-

CR, 1987 WL 6514, at *2 (Tex. App.—Houston [1st Dist.] Feb. 12, 1987, no pet.) (not designated

for publication) (noting in sufficiency review that “stab” wound “required 16 stitches”).

               Moreover, in addition to the evidence summarized above, other evidence was

presented to the jury regarding the nature of Thompson’s injury. For example, on the recording

of Thompson’s call to 911 that was played for the jury, she stated multiple times that Thomas

“stabbed” her on her temple. In addition, Thompson’s medical records referred to the injury as a

stab wound on at least six occasions. Regarding one of those instances, the records categorized

the injury as a “Category I” injury requiring immediate treatment because it was a “[s]tab wound

to [the] head.” Further, another portion of Thompson’s medical records documented that she

                                                 7
described her injury as being “stabbed in the forehead.” Additionally, another entry stated that

the injury was a “[l]arge 8cm laceration do[w]n[] to bone.” Moreover, photographs of the deep

injury to Thompson’s face spanning from her temple to the midpoint of her forehead were

presented to the jury and showed that the wound went down to the bone.

                 Given our standard of review and in light of the entirety of the record before this

Court as well as the reasonable inferences that can be made from that record, we must conclude

that a rational jury could have concluded that Thomas stabbed Thompson and overrule Thomas’s

sufficiency challenge to the evidence pertaining the second allegation contained in the indictment.

Having overruled the evidentiary challenge listed above, we need not address Thomas’s other

sufficiency challenge to the evidence regarding the first allegation listed in the indictment. See

Tex. R. App. P. 47.1; Guevara, 152 S.W.3d at 52.

                 For all of these reasons, we overrule Thomas’s issue on appeal.


                                          CONCLUSION

                 Having overruled Thomas’s issue on appeal, we affirm the district court’s judgment

of conviction.



                                               __________________________________________
                                               Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Smith

Affirmed

Filed: August 27, 2019

Do Not Publish



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