       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00712-CR


                               Robert Eric Wade, III, Appellant

                                                v.

                                  The State of Texas, Appellee


             FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY
       NO. 16-2156-K26, THE HONORABLE SUZANNE BROOKS, JUDGE PRESIDING



                                          OPINION


               Robert Eric Wade, III, was charged with aggravated assault. See Tex. Penal Code

§ 22.02.1 At the end of the guilt-or-innocence phase, the jury found Wade guilty of the charged

offense. At the end of the punishment phase, the jury recommended that Wade be sentenced to

five years’ imprisonment and that he be placed on community supervision. See id. §§ 12.33,

22.02(b). The district court rendered its judgment of conviction in accordance with the jury’s

verdicts and placed Wade on community supervision for seven years. On appeal, Wade contends

that the evidence supporting his conviction was insufficient and that the district court should

have included an instruction in the jury charge for the lesser included offense of assault. We will

reverse the district court’s judgment of conviction and remand for a new trial.




       1
         The indictment also alleged that Wade committed the offense of burglary of a habitation.
See Tex. Penal Code § 30.02. However, the State later abandoned that charge.
                                       BACKGROUND

               As set out above, Wade was charged with committing aggravated assault.

Specifically, the indictment alleged that Wade “intentionally, knowingly, or recklessly caused

serious bodily injury to Taylor Sughrue, by biting off . . . Sughrue’s earlobe” in July 2016.

The indictment also contained a separate deadly-weapon notice alleging that Wade “used or

exhibited a deadly weapon, namely, the defendant’s teeth, during the commission of” the

offense. The undisputed evidence presented at trial established that Sughrue was dating Wade’s

ex-wife, Christina Reale, and was in her home at the time of the offense. The undisputed

evidence also established that Reale and Wade were divorced in 2014 but that they started dating

again in 2015. The evidence is disputed regarding whether Reale was also dating Wade at the

time of the offense.

               During the trial, the State called the following individuals to the stand: Sughrue;

K.R., who is Reale’s daughter; Officer Michael Silva, who responded to a 911 call regarding the

incident; and paramedic James Baker, who also responded to the 911 call. In his testimony,

Officer Silva explained that the bed in Reale’s master bedroom “was covered with blood” when

he arrived, that Sughrue “had a substantial amount of blood around his face and head,” and that

“a portion of [Sughrue’s] earlobe [wa]s missing.” Similarly, Baker explained in his testimony

that Sughrue had blood on his face, that Sughrue had “an amputation of the left earlobe,” that he

transferred Sughrue to the hospital to see if the lobe could be reattached, that the wound had

“minimal active bleeding” by the time that he treated Sughrue, that Sughrue described the pain as

“seven out of ten,” and that Sughrue refused any pain medication. During Baker’s testimony, his

incident report as well as the medical records from the hospital were admitted into evidence.



                                                2
               In her testimony, K.R. related that Sughrue was intoxicated on the night in

question and that Reale helped him walk to the master bedroom. Further, K.R. recalled that she

later heard Wade and Reale arguing outside, that Wade walked into the house, and that Wade

headed for the master bedroom. Regarding the alleged offense, K.R. testified that Wade got on

top of Sughrue while Sughrue was sleeping, that Wade’s face got near Sughrue’s ear, and that

Sughrue screamed in a way that she had “never heard anybody scream like . . . before.”

               Next, the State called Sughrue to the stand. In his testimony, Sughrue stated that

he fell asleep in Reale’s bed but woke up after he felt someone on top of him beating him. Next,

Sughrue described experiencing something painful on his ear and neck area and then noticing

blood was “pouring off” his ear. When describing the injury, Sughrue stated that Wade “had

pulled away and . . . ripped” his ear “away a little bit from [his] actual head.” Further, Sugrue

explained that he still had nerve damage at the time of trial that causes him excruciating pain if

the ear is directly touched or bent in certain ways. Sugrue testified that the doctors treating his

injury were unable to reattach the earlobe, that he was given eleven stitches to close the wound,

and that the bottom part of his ear was reattached to his head. Further, Sughrue admitted that he

was “devastated” when he learned that the earlobe could not be reattached because he would

“be disfigured for the rest of [his] life.” Similarly, Sughrue stated that he was permanently

disfigured by the assault. During his testimony, Sughrue stepped down from the witness stand to

allow the jury to examine his ears.

               After the State rested, Wade testified that K.R. told him that Reale was having an

affair a month before the incident in question but that he continued his relationship with Reale

after she stated that she was no longer seeing Sughrue. Further, Wade recalled that he had made

plans with Reale on the night in question but that she told him that she had to cancel because she

                                                3
was going to spend the day with her brother. Next, Wade testified that he texted with Reale

throughout the day, that he went to Reale’s home to see if she was there, that he could not enter

the home because it was locked, that he waited outside the home, and that he eventually saw a

car drive to the house with Reale, K.R., and Sughrue inside. Additionally, Wade stated that he

texted Reale after she got home, that she met him outside, and that they argued. Moreover,

Wade testified that Sughrue opened the door and pushed him against a wall, that he pushed back,

that they fell to the floor inside the home, that they wrestled, that Sughrue had something in his

hand, that Sughrue hit him with the object in his hand, and that Sughrue ran to the master

bedroom. Additionally, Wade stated that he ran after Sughrue because he wanted “to finish it”

and because he did not know what Sughrue might have in the bedroom, that he lunged toward

Sughrue, that he tackled Sughrue, that they wrestled on the bed, and that Sughrue placed him in a

headlock. When describing the incident in question, Wade related that he closed his eyes and bit

Sughrue because Sughrue would not release him, that he did not know what he was biting, that

Sughrue screamed and released him, that he felt something soft in his mouth, and that he spit the

object out. In addition, although he denied intending to bite Sughrue’s earlobe off, Wade admitted

that he opened his mouth, put his teeth around Sughrue’s ear, and bit down hard enough to sever

the earlobe. When describing the injury, Wade acknowledged that Sughrue’s ear was disfigured

but denied that Wade suffered serious bodily injury and further stated that if he saw Sughrue on

the street and did not know who Sughrue was, he would be unable to notice any difference

between Sughrue’s two ears.

               After Wade rested, a charge conference was convened.           During the charge

conference, Wade requested an instruction on the lesser included offense of assault, but the

district court denied that request. At the end of the trial, Wade was convicted of the charged

                                                4
offense, and the jury returned a separate finding specifying that Wade used or exhibited a deadly

weapon during the offense.

               Wade appeals his conviction.


                                          DISCUSSION

               On appeal, Wade argues that the evidence presented at trial is legally insufficient

to support his conviction and that the district court erred by failing to include an instruction on

the lesser included offense of assault.


Sufficiency of the Evidence

               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”). The factfinder is “free

to apply common sense, knowledge, and experience gained in the ordinary affairs of life in

drawing reasonable inferences from the evidence.” Eustis v. State, 191 S.W.3d 879, 884 (Tex.

App.—Houston [14th Dist.] 2006, pet. ref’d). 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 determination.” Clayton v. State,

                                                  5
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). 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.” Id. at 107 (quoting Jackson, 443 U.S. at 320).

               As set out above, Wade was convicted of aggravated assault for causing serious

bodily injury to Sughrue by biting off a portion of Sughrue’s ear. Under the Penal Code, a

person commits assault if he “intentionally, knowingly, or recklessly causes bodily injury to

another,” Tex. Penal Code § 22.01, and commits aggravated assault if he commits assault and

“causes serious bodily injury to another,” id. § 22.02. The legislature has defined “‘[b]odily

injury’” as meaning “physical pain, illness, or any impairment of physical condition,” id.

§ 1.07(a)(8), and “‘[s]erious bodily injury’” as meaning, in relevant part, “bodily injury that . . .

causes . . . serious permanent disfigurement,” id. § 1.07(a)(46). “The distinction between ‘bodily

injury’ and ‘serious bodily injury’ is often a matter of degree and the distinction must be

determined on a case-by-case basis.” Reyes v. State, No. 03-15-00233-CR, 2017 WL 1130373,

at *4 (Tex. App.—Austin Mar. 23, 2017, pet. struck) (mem. op., not designated for publication).

               “[T]here are no wounds that constitute ‘serious bodily injury’ per se.” Jackson v.

State, 399 S.W.3d 285, 292 (Tex. App.—Waco 2013, no pet.) (quoting Hernandez v. State,

946 S.W.2d 108, 111 (Tex. App.—El Paso 1997, no pet.)). Instead, reviewing courts “must

evaluate each case on its own facts to determine whether the evidence sufficed to permit the jury

to reasonably conclude that the injury fell within the definition of ‘serious bodily injury.’”

                                                 6
Reyes, 2017 WL 1130373, at *4. “[I]n assessing the sufficiency of the evidence to establish

serious bodily injury, the question is the degree of risk of death that the injury caused, or the

disfiguring or impairing quality of the injury, ‘as it was inflicted, not after the effects had

been ameliorated or exacerbated by other actions such as medical treatment.’” Stuhler v. State,

218 S.W.3d 706, 714 (Tex. Crim. App. 2007) (quoting Fancher v. State, 659 S.W.2d 836, 838

(Tex. Crim. App. 1983)). “Simply that an injury causes scarring is not sufficient, on its own, to

establish serious permanent disfigurement.” Wright v. State, 494 S.W.3d 352, 362 n.5 (Tex.

App.—Eastland 2015, pet. ref’d). Rather, “[t]here must be evidence of some significant cosmetic

deformity caused by the injury.” Hernandez, 946 S.W.2d at 113 (observing that “[d]isfigurement,

like beauty, is in the eye of the beholder”); cf. Hatfield v. State, 377 S.W.2d 647, 649 (Tex. Crim.

App. 1964) (determining that evidence that victim had cut lip, lost teeth, had stiff neck, and

required hospitalization was “sufficient to sustain the jury’s finding that serious bodily injury

was inflicted upon him”).

               When presenting his sufficiency challenge, Wade concedes that the evidence

established that Sughrue sustained bodily injury on the night in question and that the evidence

shows that he assaulted Sughrue, but he asserts that the evidence did not establish that he

committed aggravated assault because the evidence did not show that Sughrue sustained serious

bodily injury. As support for his assertion, Wade highlights that Sughrue “did not characterize

any disfigurement” that he sustained in the assault “as serious.” Similarly, Wade contends that

the medical records and the testimony from the paramedic who responded to the scene did not

establish that “Sughrue sustained serious permanent disfigurement.” Further, Wade points to

portions of his own testimony in which he denied causing serious bodily injury to Sughrue and in



                                                 7
which he explained that if he saw Sughrue now, he would not notice any difference between

Sughrue’s two ears.

                During the trial, EMS records for the night in question and medical records from

the hospital where Sughrue was treated were admitted into evidence. The EMS records reflect

that Sughrue sustained a “[t]raumatic injury,” that his left earlobe had been amputated, that he

had pain in his left ear following an assault while he was sleeping, and that there was “quite a bit

of blood” at the scene. Similarly, the hospital records describe the injury as a “large complex

laceration to the left ear externally with loss of the ear lobe,” as “10 cm” long, as an amputation,

as extending “into the cartilage,” and as requiring “11 sutures.” Cf. Reyes, 2017 WL 1130373, at

*5 (noting that evidence regarding wounds and medical treatment performed “demonstrated

more than just scarring”). The hospital records also say that Sughrue was assaulted and had

dried blood on his chest; that he was experiencing pain at a level of seven that was constant,

tender, and sharp; and that he continued to experience pain while sleeping before the sutures

were removed.

                In addition, photographs of Reale’s bedroom and of Sughrue after the assault

were admitted into evidence. The photos of Reale’s bedroom show a significant amount of

blood on the sheets and comforter. The photos of Sughrue show blood on his face and on other

parts of his body and document that the earlobe was removed.

                At trial, K.R. testified that she heard Sughrue scream during the assault in a way

that she had “never heard anyone scream like . . . before.” Following K.R.’s testimony, Sughrue

explained that on the night in question he woke up when someone punched him in the face and

that he felt pain on his left ear. When describing the injury, Sughrue explained that Wade pulled

his ear away from his head after biting it and that he was covered in blood. Further, Sughrue

                                                 8
related that doctors were unable to reattach his earlobe. Moreover, Sughrue explained that he

received eleven stitches, including stitches to reattach the bottom part of his ear to his head, and

that he continued to experience pain at the time of the trial if his ear is directly touched. Sughrue

also testified that he will be disfigured for life because of the injury to his ear. See id. at *5

(noting that location of injury on face was relevant consideration); Jackson, 399 S.W.3d at 292

(explaining that “[t]he person who sustained the injury at issue is qualified to express an opinion

about the seriousness of that injury”). During his testimony, Sughrue stepped down from the

witness stand for the jury to examine his ear.

               When confronted with a similar issue and with similar evidence, one of our sister

courts of appeals concluded that evidence pertaining to an injury caused by biting an earlobe was

sufficient to establish serious bodily injury. See Sizemore v. State, 387 S.W.3d 824, 830 (Tex.

App.—Amarillo 2012, pet. ref’d). In reaching that conclusion, our sister court noted that photos

of the victim’s injury to her ear admitted during trial showed “a significant amount of blood in

and around the area surrounding [her] ear” and showed “that a piece of her ear is missing” and

that her ear is “misshapen.” Id. at 829. Next, the court highlighted the testimony from the victim

in which she related that the defendant bit her ear, that the missing portion of her ear was never

found, that she underwent a surgical procedure to attempt to repair the injury, and that she still

experienced pain in her ear months later. Id. As with Sughrue, the victim “showed her ear to the

jury, enabling it to assess the degree of disfigurement.” Id. Additionally, the court noted that the

medical records described the “wound . . . as a ‘traumatic injury,’” as “a ‘loss of significant

section of the lower ear,’” and “as an open wound to the right ear with ‘underlying cartilage

exposed and desiccated.’” Id. Moreover, the court referenced the treating physician’s description

of the injury as a “‘segment . . . approximately 6 cm in length about a centimeter and a half in

                                                 9
width’” that is “‘simply gone.’” Finally, the court observed that the records revealed that the

initial surgical procedure “did not result in a full reconstruction of the ear.” Id. at 830.2

               Given our standard of review and in light of the similarity of the types of

evidence, including medical records, describing Sughrue’s injury and the victim’s injury in

Sizemore as well as the fact that both juries were given the opportunity to personally observe the

injured ears, we similarly conclude that by applying “common sense, knowledge, and experience”

and making reasonable inferences from the evidence presented, “the jury could have rationally

concluded that” Sughrue “suffered serious permanent disfigurement.” See id. Accordingly, we

conclude that the evidence is legally sufficient to establish that Wade caused Sughrue serious

bodily injury. See Tex. Penal Code §§ 1.07(a)(46), 22.02.

               For these reasons, we overrule Wade’s first issue on appeal.


Jury Charge

               In his second issue on appeal, Wade contends that the district court erred by

failing to include a lesser included-offense instruction. During the trial, Wade requested that the

district court provide an instruction on assault because, according to Wade, his testimony was

sufficient to warrant the instruction. After considering the parties’ arguments, the district court

denied the request.




       2
          In his reply brief, Wade contends that Sizemore is factually distinguishable from the
current case because the victim in Sizemore required more extensive hospitalization than
Sughrue did and because the injury would “require a two-to-three stage reconstruction.” See
Sizemore v. State, 387 S.W.3d 824, 829, 830 (Tex. App.—Amarillo 2012, pet. ref’d). Although
we agree with Wade that there are differences between this case and Sizemore, we believe that
the analysis is still helpful to explaining how a jury could reasonably infer serious bodily injury
to an ear based on the evidence presented at trial.
                                                  10
               Appellate courts “use a two-step analysis to determine if a defendant is entitled

to a lesser-offense instruction.” Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App.

2018). “The first step is to determine whether the requested instruction pertains to an offense

that is a lesser-included offense of the charged offense, which is a matter of law.” Bullock v.

State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). “Under this first step of the test, an offense

is a lesser-included offense if it is within the proof necessary to establish the offense charged.”

Id. As a matter of law, assault is a lesser included offense of the charged offense of aggravated

assault because “it differs from the charged offense only in the respect that a less serious injury

. . . suffices to establish its commission.” See Tex. Code Crim. Proc. art. 37.09; see also Tex.

Penal Code §§ 22.01(a)(1) (stating that assault occurs when person “intentionally, knowingly, or

recklessly causes bodily injury”), .02(a)(1) (providing that assault is aggravated assault if person

“causes serious bodily injury to another”). Accordingly, the first step is satisfied here.

               To satisfy the second step, “there must be evidence from which a rational jury

could find the defendant guilty of only the lesser offense.” Ritcherson, 568 S.W.3d at 671.

“That requirement is met if there is (1) evidence that directly refutes or negates other evidence

establishing the greater offense and raises the lesser-included offense or (2) evidence that is

susceptible to different interpretations, one of which refutes or negates an element of the greater

offense and raises the lesser offense.” Id. Appellate courts “consider all the evidence admitted

at trial, not just the evidence presented by the defendant, and if there is more than a scintilla of

evidence raising the lesser offense and negating or rebutting an element of the greater offense,

the defendant is entitled to a lesser-charge instruction.” Id. “It does not matter whether the

evidence is controverted or even credible,” id., nor does it matter “whether that evidence is

weak or strong,” Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). “If the evidence

                                                 11
raises the issue, the trial court must include an instruction in the jury charge.” Ramirez v. State,

263 S.W.3d 40, 42 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

                   During his testimony, Wade admitted that during an altercation with Sughrue, he

bit Sughrue’s ear hard enough to remove the earlobe and that Sughrue’s ear was disfigured in the

assault. But Wade denied more than once that his actions resulted in a serious bodily injury.

Additionally, when describing the injury, Wade explained that if he saw Sughrue on the street, he

would not notice any difference between his ears. See Isaac v. State, 167 S.W.3d 469, 475 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (explaining that “a defendant’s testimony alone is

sufficient to raise the issue” of whether lesser included-offense instruction should be given).

                   In its brief, the State contends that the testimony offered by Wade was insufficient

to raise the issue of the lesser included offense of assault or to negate the charged offense.

Specifically, the State asserts that the testimony regarding the severity of the wound was a lay

opinion, that a defendant may not provide an opinion regarding the severity of an injury that he

allegedly caused, and that Wade was not qualified to provide an expert opinion about the

seriousness of the wound. The State also argues that Wade’s assessment of the injury as being

something that he would not notice if he observed Sughrue and did not know him could not have

entitled Wade to the lesser included offense instruction because the hypothetical is flawed. More

precisely, the State notes that Wade knew Sughrue and knew that Sughrue had sustained the

injury at issue.

                   We have not been pointed to any case law supporting the proposition that a

defendant may not provide testimony regarding the severity of an injury or that a jury may not

consider that testimony as evidence. Courts have determined that victims are qualified to express

an opinion regarding the seriousness of their injury, see Jackson, 399 S.W.3d at 292, and we are

                                                    12
not persuaded that an alleged offender cannot provide similar testimony regarding an injury that

he observes and admits that he directly caused by the use of his teeth. Similarly, we have been

unable to find support for the proposition that testimony from a witness—the defendant or

otherwise—that an injury is not a serious bodily injury cannot qualify as evidence sufficient to

raise the need for a lesser offense instruction even though the witness is not a doctor or other

qualified expert. Cf. id. (stating that “‘[s]erious bodily injury’ may be established without a

physician’s testimony when the injury and its effects are obvious”). Moreover, we do not read

Wade’s testimony as narrowly as the State does and instead read the testimony as an expression

regarding the visibility of the injury rather than a hypothetical expression of what his

observations might be if he did not know Sughrue.

               The State also argues that Wade’s statement indicating that he did not see a

deformity at the time of trial is insufficient to necessitate an instruction on the lesser offense of

assault because determinations regarding whether an injury is a serious bodily injury are made

based on the evidence pertaining to the injury when the injury is inflicted and not after medical

treatments have ameliorated the effects of the injury. See Stuhler, 218 S.W.3d at 714. Although

the State is correct that the assessment of the severity of an injury is based on the injury as it was

inflicted, this case did not involve a circumstance in which significant medical procedures were

undertaken to restore the aesthetic appearance of the ear; on the contrary, the testimony

presented at trial demonstrated that the earlobe was not reattached and that the wound was closed

by the use of stitches. Under the circumstances of this case, Wade’s description of the current

state of the injury would seem to have provided a basis upon which a jury could infer that the

injury was not a severe and permanent disfigurement when it was inflicted. Even assuming that

Wade’s current description could not necessitate the inclusion of a lesser offense instruction,

                                                 13
Wade also testified that Sughrue did not sustain a serious bodily injury in the assault, which

provided more than a scintilla of evidence that Sughrue did not suffer a serious permanent

disfigurement.3

               For these reasons, we conclude that more than a scintilla of evidence was

presented during trial that negated the greater offense of aggravated assault by causing serious

bodily injury and raised the lesser offense of assault by causing bodily injury and that the district

court erred by denying Wade’s request for a lesser included offense instruction for assault. Cf.

Bullock, 509 S.W.3d at 929-30 (determining that trial court erred by failing to include instruction

on lesser included offense of attempted theft where jury could have determined that defendant

was not guilty of theft of truck but was guilty of attempted theft by believing evidence that

defendant was inside truck without consent with intent to steal it and by believing defendant’s


       3
          On appeal, the State also points out that aggravated assault can be established by
evidence that an individual committed assault causing serious bodily injury or used or exhibited
a deadly weapon during the commission of an assault. See Tex. Penal Code § 22.02(a). Building
on this proposition, the State highlights that the jury made an affirmative finding on the special
issue of whether Wade used a deadly weapon during the assault and, therefore, argues that Wade
was not entitled to a lesser-included charge under the second element of the test because the
evidence failed to “refute[] or negate[] every theory which elevates the offense from the lesser to
the greater.” See Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018) (quoting
Arevalo v. State, 970 S.W.2d 547, 549 (Tex. Crim. App. 1998)). However, although the
indictment provided a deadly-weapon notice and although the jury charge included the special
instruction pertaining to Wade’s use of a deadly weapon, neither the indictment nor the
application portion of the jury charge provided alternative theories for convicting Wade of
aggravated assault and instead only addressed aggravated assault by causing serious bodily
injury. Cf. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (explaining that if statute
contains alternative manners in which offense may be committed but if State chooses “to plead
only one,” “the State is required to prove that the defendant committed the alleged crime using
that specific statutory manner and means” and “may not rely on any other statutory manner and
means of committing the crime it did not plead in the charging instrument”); Sanchez v. State,
376 S.W.3d 767, 773 (Tex. Crim. App. 2012) (stating that “[a]s a general rule, the instructions
must also conform to allegations in the indictment”). Accordingly, we do not agree with the
State’s suggestion that the evidence was required to refute or negate both alternatives listed in
the Penal Code for Wade to be entitled to the requested instruction.
                                                 14
testimony stating that his feet were not on the pedals, that he did not turn truck on, and that he

did not attempt to move truck); Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998)

(explaining that trier of fact is “free to selectively believe all or part of the testimony proffered

and introduced by either side” and that lesser included offense of assault in robbery case should

have been included where defendant denied that he committed theft); Hardeman v. State,

556 S.W.3d 916, 922-23 (Tex. App.—Eastland 2018, pet. ref’d) (deciding that lesser included

offense instruction for assault should have been given in case alleging assault family violence by

occlusion where there was evidence that defendant did not impede victim’s breathing or

circulation); Isaac, 167 S.W.3d at 472, 475 (concluding that trial court erred by failing to give

lesser included offense instruction for deadly conduct in trial for aggravated assault where

defendant did not deny going to shop with gun but did testify that he only intended to scare his

family, that he held gun at his side and never pointed it at anyone, that gun went off when he was

tackled by his stepbrother, and that he did not intend to hurt anyone but himself).

               If an appellate court determines that there is error present in a jury charge, it must

then evaluate the harm caused by the error. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

App. 2005). The amount of harm needed for a reversal depends on whether a complaint regarding

“that error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex.

App.—Austin 2008, pet. ref’d). If the defendant made a timely objection, as in this case,

reversal is required if there has been “some harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1985) (op. on reh’g). “In other words, an error which has been properly preserved by

objection will call for reversal as long as the error is not harmless.” Id.

               In this type of analysis, reviewing courts “consider: (1) the jury charge as a whole,

(2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors

                                                  15
present in the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Although

the standard is less stringent than the analysis performed when an objection is not made, the

reviewing court must still “find that the defendant ‘suffered some actual, rather than merely

theoretical, harm from the error.’” Id. (quoting Warner v. State, 245 S.W.3d 458, 463 (Tex.

Crim. App. 2008)).

               Although the abstract portion of the jury charge included an instruction on simple

assault as well as aggravated assault and defined the terms “bodily injury” and “serious bodily

injury,” the application paragraph, as set out above, did not contain any instructions authorizing

the jury to find Wade guilty of assault as opposed to aggravated assault. Courts have “routinely

found” in circumstances where “a lesser included offense [instruction] . . . was requested and

raised by the evidence” and where the failure to include that instruction “left the jury with the

sole option either to convict the defendant of the greater offense or to acquit him” that “‘some’

harm” occurs from the failure to include the instruction. Saunders v. State, 913 S.W.2d 564, 571

(Tex. Crim. App. 1995); see also Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App.

2005) (explaining that “the harm from denying a lesser offense instruction stems from the

potential to place the jury in the dilemma of convicting for a greater offense in which the jury has

reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a

wrongdoer”); Ramirez, 263 S.W.3d at 43 (finding “some harm” where “the absence of the lesser

included offense instruction left the jury with the sole option either to convict the defendant of

the charged offense or to acquit him”).

               In its brief, the State contends that any error in the jury charge was harmless. As

support, the State notes that the jury charge contained instructions on the “Special Issue” of

whether Wade used a deadly weapon during the assault. Specifically, the instruction directed the

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jury to consider the issue if it found Wade guilty of aggravated assault causing serious bodily

injury; included definitions for the terms “‘[d]eadly weapon,’” “‘[b]odily injury,’” and

“‘[s]erious bodily injury”; and asked the jury to specify whether it found beyond a reasonable

doubt that he “used or exhibited a deadly weapon, namely, the defendant’s teeth, during the

commission of the felony offense of Aggravated Assault Causing Bodily Injury.” In light of the

special-issue instructions, the State argues that the jury was free to find that he did not use a

deadly weapon during the offense “and thereby inject an inference that they were harboring

residual reasonable doubt” but instead chose to make the finding.

               However, the special-issue definitions for serious bodily injury and bodily injury

were the same as those included in the abstract portion of the jury charge. Moreover, the special-

issue definition for “‘[d]eadly weapon’” specified that a deadly weapon is “anything that in the

manner of its use is capable of causing death or serious bodily injury,” and the special-issue

instruction directed the jury to make a deadly-weapon finding if it found that Wade “used or

exhibited a deadly weapon” during the offense. In light of the fact that the same definition for

“serious bodily injury” formed the basis for the conviction and for the deadly-weapon finding,

we do not agree with the State’s argument that the deadly-weapon finding made by the jury in

this case shows that there was no harm from the failure to provide the lesser included instruction.

In fact, during its closing argument, the State told the jury twice that if it found Wade guilty of

the charged offense, the deadly-weapon issue was “necessarily” true. Accordingly, we conclude

that the first factor weighs in favor of some harm.

               Turning to the arguments of counsel, we note that during the State’s opening

argument, it asserted that Sughrue now has a “permanent disfigurement . . . because [Wade]

bit” off part of his ear, but the State did not assert that the injury was a serious permanent

                                                17
disfigurement. During the first portion of its closing argument, the State again characterized the

injury as a permanent disfigurement but asserted during the second portion that the injury was a

serious permanent disfigurement. In his closing argument, Wade emphasized that the State’s

characterizations of the injury omitted the term “serious,” that the injury had to be a “serious”

one to qualify as serious bodily injury, that none of the witnesses at trial described the injury as a

“serious permanent disfigurement,” that Sughrue did not use the word serious to describe his

own injury, and that none of the treating physicians were called to the stand and, accordingly, did

not provide any expert testimony regarding the severity of the injury. In light of the preceding,

we conclude that the second factor also weighs in favor of a finding of some harm.

               Regarding the evidence presented at trial, we note that although the evidence was

legally sufficient to support an inference that the injury qualified as serious permanent

disfigurement, the severity of the injury was one of the primary contested issues. Additionally,

as Wade correctly points out, no witnesses, including Sughrue, used the word “serious” when

describing the injury, and he testified that the injury was not serious and that he would not notice

any difference between Sughrue’s ears if he did not know of the injury. Accordingly, we believe

that, on balance, the third factor either weighed in favor of some harm or was neutral regarding

whether Wade suffered some harm.

               Turning to the fourth factor, we note that although Wade was ultimately placed on

community supervision when he was sentenced, the jury assessed his punishment at five years’

imprisonment. That sentence is longer than the maximum sentence allowed for simple assault,

see Tex. Penal Code § 22.01(b), which is, generally speaking, “confinement in jail for a term not

to exceed one year,” see id. § 12.21. Accordingly, we believe that this factor also weighs in favor

of a finding of some harm. See Hardeman, 556 S.W.3d at 924 (determining that defendant

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suffered some harm after noting that sentence assessed exceeded “maximum punishment”

available for lesser included offense).

               In light of our resolution of the factors set out above, we conclude that Wade

suffered some harm from the denial of his request for a jury instruction. Therefore, having found

error and some harm from that error, we sustain Wade’s second issue on appeal. See id.

(concluding that defendant suffered some harm from denial of instruction “on the lesser included

offense of simple assault”).


                                          CONCLUSION

               Having overruled Wade’s first issue but having sustained his second issue, we

reverse the district court’s judgment of conviction and remand the cause for a new trial.



                                             __________________________________________
                                             Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Reversed and Remanded

Filed: January 16, 2020

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