                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-09-00221-CR


THOYS DEWAYNE SANDERS                                             APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


                                   ------------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                   ------------

                                  OPINION

                                   ------------

                               I. INTRODUCTION

      A jury convicted appellant Thoys Dewayne Sanders of assault. The trial

court assessed punishment at 270 days‘ confinement and probated that

sentence for two years, placing Sanders on community supervision. The court

also required Sanders to pay $21,541 in restitution. In three issues, Sanders

contends that the evidence is insufficient to prove he assaulted the alleged

victim, that the trial court abused its discretion by assessing the restitution
amount, and that he received ineffective assistance of counsel at trial. We will

affirm.

                                II. BACKGROUND

      Leah Williams, who lived with her mother and Sanders, her stepfather,

entertained friends on the night of Saturday, April 21, 2007. Sara Grauerholz,

Amanda Sessions, Jeremiah Langen, and Justin Henninge, the alleged victim in

this case, were Williams‘s guests. Williams and her friends smoked marijuana

and drank alcohol that evening. They eventually fell asleep in different rooms of

the residence‘s garage apartment.

      Early the next morning, Williams‘s mother woke her up and told her that

Sanders was angry and that she and her friends needed to leave. Williams‘s

mother was also upset because someone‘s car was blocking her car in the

driveway. The layout of the garage apartment requires one to walk down the

stairs and exit through the garage, where Sanders kept his cabinet-making

workshop. As Williams and her friends began to leave, Williams and Grauerholz

walked outside as Sanders quickly passed them and entered the garage. At that

moment, Sanders encountered Henninge. That encounter led to assault charges

against Sanders.

      A.    Justin Henninge

      According to Henninge, he was woken when Williams‘s mother confronted

Williams that morning. He said that Williams‘s mother said, ―Wake up. Wake up.



                                    2
[Sanders] is angry. [Sanders] is mad. You have to leave.‖ Henninge testified

that he, Grauerholz, and Williams walked down the stairs of the garage

apartment, attempting to exit the garage. By Henninge‘s account, as soon as

Grauerholz and Williams left the garage, Sanders came into the garage and,

using his arm, ―pinned [Henninge] against the wall.‖ Henninge said, ―from then I

woke up to [Grauerholz] yelling.‖ Henninge said that because he was knocked

unconscious by Sanders, he did not really remember much of anything from the

encounter other than Grauerholz yelling ―You hit my boyfriend.‖ Henninge and

the prosecutor re-enacted Henninge‘s account of the encounter with Sanders for

the jury. Henninge said that despite having smoked marijuana the night before,

he was sober when these events happened. At some point, police and EMT

arrived on the scene and Henninge was taken to the hospital. Henninge did not

remember talking with a police officer and did not remember riding to the

hospital, but he did remember being placed on a stretcher.

      The next thing Henninge vividly remembered was getting an MRI at the

hospital. Henninge said Sanders‘s actions left a huge bruise on one side of his

face, another on the back of his head, and another on the opposite side of his

face. The State introduced pictures of these injuries, and Henninge testified that

they were accurate depictions of the injuries he had sustained from his encounter

with Sanders. Henninge also averred that Sanders had caused him to have a

black eye, multiple facial rashes and abrasions, and internal bleeding of the



                                    3
brain. Henninge testified that the hospital performed multiple scans, including

MRIs and X-rays.

      B.    Sara Grauerholz

      Much like Henninge‘s account, Grauerholz testified that she, Henninge,

and a few others stayed with Williams that night. As the morning approached,

Williams‘s mother woke them all, mildly irritated that Grauerholz‘s vehicle was

blocking hers. According to Grauerholz, Williams‘s mother informed them that

Sanders was upset. Grauerholz recounted the noise she heard when she left the

garage and was outside, ―[W]e heard a noise against a garage door . . . . A slam

or something hitting a garage door.‖ Grauerholz said she immediately turned

toward the garage and saw Henninge lying on the floor not moving. She said

that Sanders was standing over Henninge. She and Williams attempted to carry

Henninge to her car, but Williams‘s mother came out, told them to stay, and

informed them that 9-1-1 had been called. Grauerholz also testified that she

believed Henninge was sober that morning. She said that she asked Sanders

why he had hit her boyfriend and that Sanders simply went upstairs without

responding. Sanders also did not assist Henninge despite Henninge‘s injuries.

      C.    Jason Bowman

      Jason Bowman, an EMT basic paramedic, responded to the request for

medical assistance that morning.       Bowman said that when he arrived and

encountered Henninge, Henninge appeared confused. Bowman averred, given



                                   4
his experience as an EMT paramedic, that Henninge did not appear high on

drugs or alcohol. He also said that Henninge was injured. Based on his training

and experience, Bowman believed that Henninge‘s injuries appeared to be the

result of an assault. Bowman testified that he initially diagnosed Henninge with a

concussion.      He said that Henninge also had facial tenderness, swelling,

lacerations to the face, and a nosebleed. Bowman said that Henninge‘s injures

were severe and the result of a ―severe blunt force.‖      He also testified that

Henninge had no injuries to the back of his head and that Henninge‘s injuries

were consistent with a frontal blow.

      D.       Leah Williams

      Leah Williams testified.   Williams‘s account of the morning in question

tracked the testimony of Henninge and Grauerholz. That is, Williams also said

that she, Grauerholz, and Henninge were leaving because her mother woke

them up and asked them to leave. She testified that her mother was angry.

Williams also said that she heard what she believed to be Henninge hitting the

garage door. She said that the garage door ―rattled quite a bit‖ from whatever

impacted it.

      E.       Medical Records and Verdict

      The State admitted into evidence a set of medical records, with an

accompanying affidavit, regarding Henninge‘s admittance into the hospital on the

morning of April 22, 2007.     The records contain detailed medical information



                                       5
pertaining to Henninge‘s obligations to pay for medical treatment of injuries he

sustained.

       The jury found Sanders guilty. Sanders elected to have the trial court

assess punishment. At the punishment hearing, Henninge‘s mother testified that

despite Henninge having some insurance coverage, his insurance carrier would

not pay most of his medical bills and that her family has not been able to pay for

Henninge‘s medical bills. She also said that the bills were delinquent at the time

of trial.   The State again introduced medical billing documents showing that

Henninge‘s unpaid medical costs related to injuries he sustained on April 22,

2007, totaled $21,541. The trial court assessed punishment at 270 days‘ in jail

but probated Sanders‘s sentence for two years. The court also ordered Sanders

to pay restitution in the amount of $21,541. This appeal followed.

                                      III. DISCUSSION

       A.     Sufficiency of the Evidence

       In his first point, Sanders contends that the trial court abused its discretion

by denying his motion for instructed verdict. Sanders‘s first point contains two

distinct subparts. First, it seems that Sanders argues that there exists a variance

between the charging instrument and the proof presented at trial to show that he

assaulted Henninge. Second, Sanders challenges the evidentiary sufficiency to

support his conviction.




                                      6
             1.     No Material Variance

      In part of his first point, Sanders argues that the evidence does not support

that Henninge‘s injuries were a result of him having struck a wall; rather, the

evidence ―indicates that the injuries sustained by [Henninge] were the result of

Henninge‘s fall to the floor.‖     Sanders appears to argue that because the

charging instrument—in this case by information—alleged that Sanders

―intentionally or knowingly cause[d] bodily injury to [Henninge], by striking him . . .

thereby causing him to strike or slam into a wall‖ and because the evidence at

trial showed that Henninge‘s injuries were caused by him hitting the floor, the

evidence is insufficient to support Sanders‘s conviction.        Thus, according to

Sanders, the trial court erred by not granting his instructed verdict.

      A ―variance‖ occurs when there is a discrepancy between the allegations of

the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243,

246 (Tex. Crim. App. 2001). In other words, in a variance situation, the State has

proved the defendant guilty of a crime, but has proved its commission in a

manner that varies from the allegations in the charging instrument. Id. Only a

material variance requires reversal because only a material variance prejudices a

defendant‘s substantial rights. Fuller v. State, 73 S.W.3d 250, 263 (Tex. Crim.

App. 2002). We decide if the variance is material by determining ―whether the

[charging instrument], as written, informed the defendant of the charge against

him sufficiently to allow him to prepare an adequate defense at trial, and whether



                                      7
prosecution under the deficiently drafted [charging instrument] would subject the

defendant to the risk of being prosecuted later for the same crime.‖ Gollihar, 46

S.W.3d at 257.

      Sanders does not argue that the information was inadequate to inform him

of the charge against him sufficiently to allow him to prepare an adequate

defense, nor does Sanders argue that prosecution under the information would

subject him to the risk of being prosecuted later for the same crime. In fact,

Sanders‘s trial counsel repeatedly attempted to persuade the jury that Sanders‘s

and Henninge‘s encounter was purely accidental, rather than an assault. Trial

counsel also repeatedly demonstrated through extensive questioning of

witnesses that Sanders was fully aware of whom he was accused of injuring, and

there is no evidence that Sanders was surprised by any proof offered at trial.

See Fuller, 73 S.W.3d at 253–54 (―There is no indication in the record that

appellant did not know whom he was accused of injuring or that he was surprised

by the proof at trial.‖). We hold that Sanders has failed to show a fatal variance

between the indictment and the proof at trial, and we overrule this portion of his

first point. Thus, we will disregard the alleged variance in determining whether

the evidence is sufficient to prove that Sanders assaulted Henninge. See Hilburn

v. State, 312 S.W.3d 169, 175 (Tex. App.—Fort Worth 2010, no pet.)

(disregarding alleged variance and conducting evidentiary sufficiency review

when appellant failed to explain on appeal how alleged variance prevented him



                                    8
from preparing a defense or how he could be prosecuted again under same

facts).

                2.     The Evidence         is   Sufficient   to   Support   Sanders’s
                       Conviction

          In the remainder of his first point, Sanders challenges the sufficiency of the

evidence to support his conviction for assaulting Henninge. Sanders claims both

that we are to conduct a legal sufficiency review and that we are to remand this

case for a new trial; thus, Sanders implicates issues of both legal and factual

sufficiency reviews. But the crux of Sanders‘s point is that ―[t]here is no evidence

that the injuries sustained by Henninge were the result of [Sanders] causing him

to strike a wall‖ and that there exists a ―reasonable hypothesis other than

[Sanders‘s] guilt‖ that Henninge ―fell to the floor accidentally.‖ We conclude that

the evidence supports Sanders‘s conviction.

          The court of criminal appeals has held that there is ―no meaningful

distinction between the Jackson v. Virginia legal-sufficiency standard and the

Clewis factual-sufficiency standard‖ and that the Jackson standard ―is the only

standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893,

895, 902 (Tex. Crim. App. 2010). Accordingly, we review Sanders‘s claims of

evidentiary sufficiency under ―a rigorous and proper application‖ of the Jackson

standard of review. Id. at 906.


                                        9
      Under the Jackson standard, ―the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, 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, 99 S. Ct. 2789, 2789

(1979); see Brooks, 323 S.W.3d at 899 (characterizing the Jackson standard

as: ―Considering all of the evidence in the light most favorable to the verdict, was

a jury rationally justified in finding guilt beyond a reasonable doubt‖).    ―[T]he

factfinder‘s role as weigher of the evidence is preserved through a legal

conclusion that upon judicial review all of the evidence is to be considered in the

light most favorable to the prosecution.‖ Jackson, 443 U.S. at 319, 99 S. Ct. at

2789; see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (―The jury, in all

cases, is the exclusive judge of the facts proved and of the weight to be given to

the testimony.‖); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000),

cert. denied, 532 U.S. 944 (2001) (―The jury is the exclusive judge of the

credibility of witnesses and of the weight to be given testimony, and it is also the

exclusive province of the jury to reconcile conflicts in the evidence.‖).

      Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394,

404 (Tex. Crim. App. 2000); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—

Corpus Christi 2002, pet. ref‘d). Under a hypothetically correct jury charge, the

State was required to prove beyond a reasonable doubt that Sanders



                                      10
―intentionally, knowingly, or recklessly cause[d] bodily injury to another.‖ Tex.

Penal Code Ann. § 22.01(a)(1) (Vernon Supp. 2010).

      The State is not required to present direct evidence to establish guilt. See

Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).                  Indeed,

circumstantial evidence is as probative as direct evidence in establishing the guilt

of the actor, and circumstantial evidence alone can be sufficient to establish guilt.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Guevara, 152

S.W.3d at 49.     The law does not require that each fact ―point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.‖ Hooper,

214 S.W.3d at 13; see Guevara, 152 S.W.3d at 49.

      Moreover, it is not incumbent upon the State to exclude ―every reasonable

hypothesis other than guilt‖ for the evidence to be considered sufficient. See

Geesa v. State, 820 S.W.2d 154, 157–61 (Tex. Crim. App. 1991), overruled on

other grounds by Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000);

see also Villarreal Lopez v. State, 267 S.W.3d 85, 97–98 (Tex. App.—Corpus

Christi 2008, no pet.) (citing Harris v. State, 133 S.W.3d 760, 763–65 (Tex.

App.—Texarkana 2004, pet. ref‘d)); Richardson v. State, 973 S.W.2d 384, 387

(Tex. App.—Dallas 1998, no pet.) (―[T]he mere existence of an alternative

reasonable hypothesis does not render the evidence . . . insufficient. . . . [E]ven

when an appellant identifies an alternative reasonable hypothesis raised by the



                                     11
evidence, the standard of review remains the same.‖); Orona v. State, 836

S.W.2d 319, 322 (Tex. App.—Austin 1992, no pet.)).

       In this case, the jury heard testimony that Sanders was angry the morning

that Henninge was injured. Multiple witnesses testified that Williams and her

friends were woken by Williams‘s mother, who declared that everyone needed to

leave and that Sanders was angry. Grauerholz testified that as she and Williams

left the garage, Sanders quickly went into the garage; a loud noise and rattling of

the garage door could be heard; and both Williams and Grauerholz said that as

they looked to see what had occurred, Henninge was then on the floor,

unconscious.      Multiple witnesses testified that Sanders was standing over

Henninge and not assisting him.       Grauerholz‘s reaction was to immediately

exclaim, ―I can‘t believe you hit my boyfriend.‖ And Sanders did not deny hitting

Henninge. Henninge testified that as Sanders came into the garage, he pinned

Henninge against the wall with his arm and that from there, Henninge lost

consciousness.      Bowman, the paramedic who immediately treated Henninge,

testified that Henninge had tenderness, swelling, and other signs of impact injury,

including lacerations, nosebleed, contusions, and abrasions to his head and neck

area. Bowman also testified that Henninge acted consistent with a person who

had been hit by a strike that was a ―[p]retty severe blunt force. A very good

punch, hit, [or] kick.‖




                                    12
      Viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found beyond a reasonable doubt that Sanders

intentionally, knowingly, or recklessly caused Henninge‘s bodily injuries See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778; see

also Tex. Penal Code Ann. § 22.01. Accordingly, we hold that the evidence is

sufficient to support Sanders‘s conviction for assault. See Moon v. State, 44

S.W.3d 589, 593 (Tex. App.—Fort Worth 2001, pet. ref‘d) (holding that evidence

was legally sufficient to prove defendant used his hands to injure his wife, despite

lack of direct testimony, because jury could infer use of hands from

circumstances surrounding wife‘s injuries).      We overrule the remainder of

Sanders‘s first point.

      B.     Effective Assistance of Counsel

      In his second point, Sanders argues that the trial court abused its

discretion by denying his motion for new trial. Sanders‘s motion claimed that he

received ineffective assistance of counsel.      Filed with his motion, Sanders

attached an affidavit of an alleged witness who averred that he would testify that

Sanders accidentally ran into Henninge and that Sanders did not intentionally

injure Henninge. Concerned that trial counsel had failed to call a potentially

exculpating witness, on October 18, 2010, this court abated Sanders‘s appeal

and remanded the case to the trial court to conduct a hearing on his motion for

new trial. In our abatement order, we specifically stated that ―Sanders‘s trial



                                     13
counsel should have been afforded an opportunity to explain his actions.‖ At the

hearing, however, Sanders did not call his original trial counsel to testify and

explain his trial tactics. The trial court again denied Sanders‘s motion for new

trial. Thus, we will conduct our analysis of Sanders‘s second point using the

record from the trial and from the abatement hearing.

      Our review of counsel‘s performance must be highly deferential. Strickland

v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984). The burden of

proving ineffective assistance of counsel is on the appellant. Stafford v. State,

813 S.W.2d 503, 506 n.1 (Tex. Crim. App. 1991); Moore v. State, 694 S.W.2d

528, 531 (Tex. Crim. App. 1985); Cannon v. State, 668 S.W.2d 401, 403 (Tex.

Crim. App. 1984).    An allegation of ineffective assistance of counsel will be

sustained only if it is firmly founded and if the record affirmatively demonstrates

counsel‘s alleged ineffectiveness. Ex parte McWilliams, 634 S.W.2d 815, 819

(Tex. Crim. App. 1980), cert. denied, 459 U.S. 1036 (1982). Effective assistance

of counsel is gauged by the totality of the representation from the pretrial

representation of the accused through the punishment stage of the trial. Ex parte

Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989). Thus, the trial as a whole

must be reviewed and not simply isolated incidents of counsel‘s performance.

Cannon, 668 S.W.2d at 403. The standard of review for ineffective assistance of

counsel is the same for all phases of the trial. See Hernandez v. State, 988




                                    14
S.W.2d 770, 772 (Tex. Crim. App. 1999) (Strickland standard is standard for all

ineffective assistance of counsel claims).

      A defendant seeking relief must demonstrate:             (1) that counsel‘s

performance failed to constitute reasonably effective assistance by falling below

an objective standard of reasonableness under the prevailing professional

norms; and (2) that there is a reasonable probability that but for counsel's

deficient performance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002).        A ―reasonable probability‖ is defined as ―a

probability sufficient to undermine confidence in the outcome.‖ Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Bone, 77 S.W.3d at 832.

      We begin our analysis with a rebuttable presumption that counsel is better

positioned than the appellate court to judge the pragmatism of the particular case

and that he made all significant decisions in the exercise of reasonable

professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App.

1992). The presumption may be rebutted by evidence of counsel‘s reasoning or

lack thereof.   See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994).   In the absence of evidence of counsel‘s reasons for the challenged

conduct, the appellate court will assume a strategic motivation and will not

conclude that the conduct was deficient unless the conduct was so outrageous

that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d



                                     15
436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003); see

Thompson v. State, 9 S.W.3d 808, 814–15 (Tex. Crim. App. 1999). Generally,

performance of counsel cannot be adequately examined based on a trial court

record. Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—Houston [1st Dist.]

1994, pet. ref‘d).   Finally, an appellant‘s failure to satisfy one prong of the

Strickland test negates a court‘s need to consider the other prong. Strickland,

466 U.S. at 697, 104 S. Ct. 2069; Garcia, 57 S.W.3d at 440.

      Here, we find no evidence rebutting the presumption that Sanders‘s trial

counsel made all significant decisions in the exercise of reasonable professional

judgment. Sanders contends that trial counsel was ineffective because he did

not call an alleged eyewitness to the stand who would have said that Sanders‘s

encounter with Henninge was an accident. Even though this court abated this

appeal and remanded for a hearing, allowing trial counsel to give his reasons for

not calling this witness, Sanders did not call trial counsel to the hearing. And, as

the State argues, Sanders‘s trial counsel‘s choosing not to call this witness may

have been reasonable trial strategy in that trial counsel may have concluded that

this witness was unreliable and unbelievable. The record does show that trial

counsel made numerous objections and repeatedly attempted to elicit testimony

that Sanders did not intentionally harm Henninge. With the limited record this

court has to review, we hold that Sanders has failed to meet his burden of




                                     16
proving by a preponderance of the evidence that his trial counsel was ineffective.

Accordingly, we overrule Sanders‘s second point.

      C.     Restitution

      In his third point, Sanders argues that the trial court abused its discretion

by ordering him to pay $21,541 in restitution to Henninge. The State argues

(1) that Sanders failed to preserve this issue for our review and (2) that the

restitution amount was supported by the record and was within the sound

discretion of the trial court to impose. Assuming without deciding that Sanders

has preserved this issue for our review, we agree with the State that the trial

court did not abuse its discretion in ordering the amount of restitution to be paid.

      We review a trial court‘s decision to order restitution for an abuse of

discretion. See Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999);

Burris v. State, 172 S.W.3d 75, 77 (Tex. App.—Fort Worth 2005, no pet.); Lemos

v. State, 27 S.W.3d 42, 45 (Tex. App.—San Antonio 2000, pet. ref‘d). An abuse

of discretion occurs if the trial court acts without reference to any guiding rules or

principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1991) (op. on reh‘g). A trial court abuses its discretion

when it sets restitution in an amount that is unjust or unsupported by facts.

Campbell, 5 S.W.3d at 696 (citing Cartwright v. State, 605 S.W.2d 287, 289 (Tex.

Crim. App. [Panel Op.] 1980)).




                                      17
      The code of criminal procedure provides that ―the court that sentences a

defendant convicted of an offense may order the defendant to make restitution.‖

Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp. 2010); see also Tex.

Const. art. I, § 30(b)(4); Weir v. State, 278 S.W.3d 364, 366–67 (Tex. Crim. App.

2009). In determining the amount of restitution, the court shall consider ―the

amount of the loss sustained by any victim‖ and ―other factors the court deems

appropriate.‖ Tex. Code Crim. Proc. Ann. art. 42.037(c). ―The court shall impose

an order of restitution that is as fair as possible to the victim,‖ and the ―standard

of proof is a preponderance of the evidence.‖ Tex. Code Crim. Proc. Ann. art.

42.037(e), (k). See Burris, 172 S.W.3d at 78 (explaining that ―testimony from a

. . . victim of the crime with personal knowledge of the amount of [damages]

incurred . . . is adequate to support a restitution order‖).         The burden of

demonstrating the amount of the loss sustained by a victim as a result of the

offense is on the prosecuting attorney.        Tex. Code Crim. Proc. Ann. art.

42.037(k).

      In this case, the State introduced several exhibits that specifically detail the

amount owed by Henninge to numerous medical providers in relation to the

injuries he sustained on April 22, 2007. According to bills introduced at trial, the

total cost of Henninge‘s medical treatment owing as a result of the injuries he

sustained was $21,541—the amount the trial court awarded as restitution. At the

sentencing hearing, there was also testimony that the bills in relation to



                                     18
Henninge‘s injuries were delinquent and that any restitution would go to

compensate Henninge in payment of his medical expenses. Furthermore, a jury

found Sanders guilty of the assault that caused Henninge‘s injuries.          See

Campbell, 5 S.W.3d at 697 (―A trial court may not order restitution for an offense

for which the defendant is not criminally responsible.‖). We hold that the record

supports the restitution ordered by the trial court. Thus, the trial court did not

abuse its discretion. We overrule Sanders‘s third point.

                                IV. CONCLUSION

      Having overruled all three of Sanders‘s points, we affirm the trial court‘s

judgment.




                                            BILL MEIER
                                            JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DAUPHINOT, J. filed a dissenting opinion.

PUBLISH

DELIVERED: May 5, 2011




                                    19
                         COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                NO. 02-09-00221-CR


THOYS DEWAYNE SANDERS                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


                                     ------------

      FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY

                                     ------------

                             DISSENTING OPINION

                                     ------------

      I write separately because the majority appears to place a burden of proof

on Appellant. The majority appears to say, in part, that the evidence is sufficient

because ―Grauerholz‘s reaction was to immediately exclaim, ‗I can‘t believe you

hit my boyfriend.‘ And Sanders did not deny hitting Henninge.‖1 If the majority

requires Appellant to waive his Fifth Amendment right and deny the offense, I

must respectfully dissent.

      1
       Majority op. at 12 (emphasis added).
      As to the allegations of ineffective assistance of counsel, the record

reflects that Appellant made an offer of proof that a specific witness, Jeremiah

Langen, would testify that he witnessed the event and that ―[i]t was a complete

accident.‖ Appellant argued that the failure of trial counsel to interview or call

Langen, a material witness, was deficient performance on its face.

      This court abated to allow trial counsel to explain his failure to interview or

call Langen to testify. The majority states that we must presume ―that counsel is

better positioned than the appellate court to judge the pragmatism of the

particular case and that he made all significant decisions in the exercise of

reasonable professional judgment,‖2 relying on Delrio v. State, a jury selection

case questioning the wisdom of putting a particular juror on the panel.3

      Here, the question is how can trial counsel justify not calling to the stand or

even interviewing a witness who saw what happened and said that Appellant

committed no assault. That is a far different issue than jury selection.

      Instead of relying on caselaw that addresses jury selection, we should look

at ineffective assistance cases in which trial counsel failed to investigate and

failed to call witnesses to testify. We should not create an explanation for such

failure and put it in the mouth of the nontestifying trial counsel.

      The Texas Court of Criminal Appeals has instructed us that


      2
       Id. at 15.
      3
       840 S.W.2d 443, 446–47 (Tex. Crim. App. 1992).


                                      2
      [i]n evaluating the potential impact of an alibi witness, we must also
      consider the relative strength of the State‘s case. We compare the
      evidence presented by the State with the evidence the jury did not
      hear due to trial counsel‘s failure to investigate.4

      Here, Henninge did not remember what had happened to him. Everyone

else guessed or speculated about what had happened. Only Langen actually

saw what had happened, but trial counsel did not interview him. What possible

trial strategy could involve not interviewing the only eyewitness?

      Because I cannot think of any, I respectfully dissent.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PUBLISH

DELIVERED: May 5, 2011




      4
       Perez v. State, 310 S.W.3d 890, 896 (Tex. Crim. App. 2010) (citations and
internal quotations omitted).


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