                                                                          ACCEPTED
                                                                     13-14-00059-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                                 9/8/2015 4:25:56 PM
                                                                    Dorian E. Ramirez
                                                                               CLERK


           NO. 13-14-00059-CR

       IN THE COURT OF APPEALS        FILED IN
                              13th COURT OF APPEALS
 FOR THE THIRTEENTH DISTRICT OF TEXAS
                           CORPUS  CHRISTI/EDINBURG, TEXAS
           AT CORPUS CHRISTI   9/8/2015 4:25:56 PM
           MONICA GALVAN,               DORIAN E. RAMIREZ
                                             Clerk
             APPELLANT,

                    VS.

        THE STATE OF TEXAS,
             APPELLEE.

ON APPEAL FROM THE 347TH DISTRICT COURT
         NUECES COUNTY, TEXAS
    TRIAL COURT NUMBER 11-CR-3519-H


        BRIEF FOR THE STATE


                Adolfo Aguilo, Jr.
                State Bar No. 00936750
                Assistant District Attorney
                105th Judicial District of Texas
                901 Leopards, Room 206
                Corpus Christi, Texas 78401
                (361) 888-0410
                (361) 888-0399 (fax)
                adolfo.aguilo@co.nueces.tx.us
                Attorney for Appellee

  ORAL ARGUMENT IS NOT REQUESTED
                                     TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................... iii

STATEMENT OF FACTS ..............................................................................2

Indictment ........................................................................................................2

State’s Case ......................................................................................................3

Appellant’s Case ........................................................................................... 12

SUMMARY OF THE ARGUMENT ........................................................... 15

    1. Reply to Appellant’s Issues Nos. 1 & 2: Viewed under the appropriate
       standard of review, the evidence is sufficient to prove that Appellant
       recklessly caused serious bodily injury to the victims.
    2. Reply to Appellant’s Issues Nos. 3 & 4: The evidence is sufficient to
       prove that Appellant collided with a bulldozer. Additionally, any
       variance between the alleged manner and means and the proof is
       immaterial.
    3. Reply to Appellant’s Issue No. 5: No error is shown because a jury
       need not be unanimous about a specific manner and means of how an
       offense was committed.

ARGUMENT ................................................................................................ 15

1. Reply to Appellant’s Issues Nos. 1 & 2.................................................... 15

  Standard of Review and Applicable Law ................................................... 15

  Discussion .................................................................................................. 20

2. Reply to Appellant’s Issues Nos. 3 & 4.................................................... 25

  Standard of Review and Applicable Law ................................................... 26

  Discussion .................................................................................................. 28

3. Reply to Appellant’s Issue No. 5 .............................................................. 29

                                                         ii
 Standard of Review and Applicable Law .................................................... 30

Discussion .................................................................................................... 31

PRAYER ....................................................................................................... 33

RULE 9.4 CERTIFICATE OF COMPLIANCE .......................................... 33

CERTIFICATE OF SERVICE ..................................................................... 34

                                  INDEX OF AUTHORITIES
                                          Cases

Acosta v. State, 429 SW3d 621
(Tex. Crim. App. 2014) ................................................................................ 18

Anderson v. State, 416 SW3d 884
(Tex. Crim. App. 2013) ................................................................................ 17

Clayton v. State, 235 SW3d 772
(Tex. Crim. App. 2007) ................................................................................ 17

Elliott v. State, No. 13-13-00220-CR, 2015 WL 1869472
(Tex. App.-Corpus Christi Apr. 23, 2015, no pet. h.) (not designated for
publication) ..................................................................... 18, 19, 20, 23, 24, 25

Estrada v. State, 313 SW3d 274
(Tex. Crim. App. 2010) ................................................................................ 31

Desormeaux v. State, 362 SW3d 233
(Tex. App.-Beaumont 2012, no pet.) ............................................................ 19

Ex parte Castillo, No. PD-0545-14, 2015 WL 3486960
(Tex. Crim. App. June 3, 2015) .............................................................. 29 n.6

Fritzching v. State, No. 02-10-00431-CR, 2012 WL 1222033
(Tex. App.-Fort Worth Apr. 12, 2012, pet. ref’d) (mem. op., not designated
for publication).............................................................................................. 28



                                                       iii
Gear v. State, 340 SW3d 743
(Tex. Crim. App. 2011) ................................................................................ 16

Gollihar v. State, 46 SW3d 243
(Tex. Crim. App. 2001) .............................................................. 26, 27, 29 n.6

Guevara v. State, 152 SW3d 45
(Tex. Crim. App. 2004) ................................................................................ 20

Hacker v. State, 389 SW3d 860
(Tex. Crim. App. 2013) ................................................................................ 20

Henry v. State, No. 10-11-00443-CR, 2012 WL 2445048
(Tex. App.-Waco June 27, 2012, no pet.) (mem. op., not designated for
publication) ............................................................................................. 29 n.6

Hernandez v. State, 190 SW3d 856
(Tex. App.-Corpus Christi 2006, no pet.) ..................................................... 16

Hooper v. State, 214 SW3d 9
(Tex. Crim. App. 2007) ................................................................................ 17

Hyde v. State, 846 SW2d 503
(Tex. App.-Corpus Christi 1993, pet. ref’d) ........................................... 19, 20

Jackson v. Virginia, 443 U.S. 307
(1979) ...................................................................................................... 16, 17

Johnson v. State, 364 SW3d 292
(Tex. Crim. App. 2012) .......................................................................... 27, 28

Jourdan v. State, 428 SW3d 86
(Tex. Crim. App. 2014) ................................................................................ 31

Kitchens v. State, 823 SW2d 256
(Tex. Crim. App. 1991) .......................................................................... 30, 31

Landrian v. State, 268 SW3d 532
(Tex. Crim. App. 2008) .......................................................................... 30, 32



                                                        iv
Laster v. State, 275 SW3d 512
(Tex. Crim. App. 2009) ................................................................................ 17

Ledesma v. State, 677 SW2d 529
(Tex. Crim. App. 1984) ................................................................................ 19

Lopez v. State, 884 SW2d 918
(Tex. App.-Austin 1994, pet. ref’d) .............................................................. 16

Malik v. State, 953 SW2d 234
(Tex. Crim. App. 1997) .......................................................................... 18, 26

Marinos v. State, 186 SW3d 167
(Tex. App.-Austin 2006, pet. ref’d) .................................................. 30, 31, 32

Merritt v. State, 368 SW3d 516
(Tex. Crim. App. 2012) ................................................................................ 18

Ngo v. State, 175 SW3d 738
(Tex. Crim. App. 2005) .................................................. 28 n.5, 29, 30, 31, 32

Reyes v. State, 267 SW3d 268
(Tex. App.-Corpus Christi 2008, pet. ref’d) ........................................... 16, 20

Rubio v. State, 203 SW3d 448
(Tex. App.-El Paso 2006, pet. ref’d) ............................................................ 24

Saenz v. State, 451 SW3d 388
(Tex. Crim. App. 2014) ................................................................................ 31

Temple v. State, 390 SW3d 341
(Tex. Crim. App. 2013) .......................................................................... 16, 20

Trepanier v. State, 940 SW2d 827
(Tex. App.-Austin 1997, pet. ref’d) ........................................................ 23, 25

Ventura-Salmeron v. State, No. 03-98-00470-CR, 2000 WL 140906
(Tex. App.-Austin Feb. 3, 2000, pet. ref’d) (not designated for publication)25

Wesbrook v. State, 29 SW3d 103

                                                    v
(Tex. Crim. App. 2000) ................................................................................ 20

Whatley v. State, 445 SW3d 159
(Tex. Crim. App. 2014) ................................................................................ 16

Young v. State, 341 SW3d 417
(Tex. Crim. App. 2011) ................................................................................ 32

Zuniga v. State, 144 SW3d 477
(Tex. Crim. App. 2004), overruled on other grounds by Watson v. State, 204
SW3d 404 (Tex. Crim. App. 2006) .............................................................. 24

                                        Statutes and Rules

Tex. Penal Code § 6.03(c) ............................................................................ 18

Tex. Penal Code § 19.04(a) .................................................................... 20 n.4

Tex. Penal Code § 22.01(a)(1) ...................................................................... 18

Tex. Penal Code § 22.02(a)(1) ............................................................ 1 n.2, 18

Tex. Penal Code § 49.07(a)(1) .................................................................. 1 n.1

Tex. R. App. P. 33.1(a) ................................................................................. 31




                                                    vi
                               No.13-14-00059-CR

                        MONICA GALVAN, Appellant,
                                    V.
                      THE STATE OF TEXAS, Appellee.
                       ****************************
                        IN THE COURT OF APPEALS
                                 FOR THE
                     THIRTEENTH DISTRICT OF TEXAS

                 BRIEF FOR THE STATE
TO THE HONORABLE COURT OF APPEALS:

         Appellant was charged by indictment with two counts of intoxication

assault1 and two counts of aggravated assault.2 C.R. at 3-4. A jury acquitted

Appellant of the intoxication assault offenses and convicted her of the

aggravated assault offenses. C.R. at 1255-1258. After a jury convicted

Appellant of the aggravated assault offenses, it assessed her punishment at 5

years in the penitentiary and a fine of $2,500 for each offense. It also

recommended that the punishment of imprisonment be suspended and that

Appellant be placed on community supervision for each offense. C.R. at 1269-

1270. The trial judge subsequently placed Appellant on community

supervision for five years. C.R. at 1271.




1
    See Tex. Penal Code § 49.07(a)(1).
2
    See Tex. Penal Code § 22.02(a)(1).
      Appellant now presents two issues challenging the sufficiency of the

evidence, two issues complaining of an alleged variance, and one issue

complaining of a lack of jury unanimity.

                              Statement of Facts

                                  Indictment

      Count 1 of the indictment alleged that Appellant, on or about October

15, 2011, in Nueces County, Texas, did then and there operate a motor vehicle

in a public place while intoxicated by reason of the introduction of alcohol

into the body, and did by reason of such intoxication cause serious bodily

injury to another, namely, Joseph Salinas, by accident or mistake, to wit: by

driving a motor vehicle that was occupied by Joseph Salinas into and against a

bulldozer. C.R. at 3.

      Except for alleging that Christopher Manka was the victim, Count 2 of

the indictment was identical to Count 1. C.R. at 4.

      Count 3 of the indictment alleged that Appellant, on or about October

15, 2011, in Nueces County, Texas, did then and there recklessly, to wit: by

failing to control the motor vehicle operated by Appellant, and by failing to

keep a proper lookout for another vehicle, and by failing to keep the motor

vehicle operated by Appellant on the roadway, and by operating a motor

vehicle while impaired, cause serious bodily injury to Joseph Salinas by



                                       2
driving a motor vehicle that was occupied by Joseph Salinas into and against a

bulldozer. C.R. at 4.

      Except for alleging that Christopher Manka was the victim, Count 4 of

the indictment was identical to Count 3. C.R. at 4.

                                  State’s Case

      On October 15, 2011 at 11:22 p.m., Officer Ruben Ramirez responded

to a call regarding a “major traffic accident.” 3 R.R. at 17 & 56. He parked his

patrol car on the side of the highway and walked through a lot of shrubbery to

reach Appellant’s vehicle. 3 R.R. at 19-20. He observed Appellant and

Martina Cepeda tending to a male in the vehicle. He also saw someone lying

on the ground. 3 R.R. at 20. Ramirez observed “a lot of blood” on the male in

the vehicle. 3 R.R. at 22.

      Christopher Manka was the male in the front passenger seat of the

vehicle. 3 R.R. at 25. Joseph Salinas was the person lying on the ground. 3

R.R. at 25-26.

      Ramirez testified that Appellant “was in control of the situation but she

was kind of dazed.” 3 R.R. at 22. Ramirez also smelled alcohol on her breath.

3 R.R. at 24. Her clothing was “disarranged” and her speech was “thick

tongued” like she had a “cotton mouth.” 3 R.R. at 53. Appellant advised him

that after having three beers and a “bull blaster shot” at a bar on Padre Island,



                                        3
she stopped at a Whataburger to get something to eat. As she was coming into

Flour Bluff, “somebody veered out in front of her and she avoided it, over

corrected, and ultimately crashed into this bulldozer.” 3 R.R. at 23 & 54-55.

Ramirez was later advised by Cepeda that there was no oncoming car. 3 R.R.

at 23.

         Cepeda also told Ramirez that Appellant had exited her vehicle and

thrown away some beer bottles that were inside her vehicle. Appellant threw

them in back of the bulldozer that she struck. 3 R.R. at 48-49. Appellant

actually placed the bottles in a “container” that was attached to the bulldozer.

The container was “pretty high” off the ground. When Ramirez pulled himself

up, he was able to observe some broken bottles. 3 R.R. at 50. If Cepeda had

not told him about the bottles, he would never have known about them. 3 R.R.

at 51.

         After Ramirez and his lieutenant examined the scene, they determined

that Appellant drove straight off the roadway and never veered. Instead of

turning with the roadway, she continued going straight. 3 R.R. at 24.

         Appellant was then transported to a hospital to obtain a blood draw. 3

R.R. at 25. Her blood was drawn at 1:42 a.m. 3 R.R. at 56. Ramirez explained

that field sobriety tests are not administered to people involved in accidents. 3

R.R. at 52-53.



                                        4
      Based upon all of the information that he had, Ramirez believed

Appellant was intoxicated. 3 R.R. at 26-27.

      During cross-examination, when Ramirez was asked why he described

the scene as “chaotic,” he replied, “People lying on the ground, complaining

of injuries, somebody laying in blood and a lot of people trying to focus on

them, damage to vehicle that was heavy front end. It was not an average

accident. She had crashed into a bulldozer which never happens. I’ve never

seen that before in my ten years.” 3 R.R. at 32.

      Officer Paul Janko testified that Appellant’s vehicle, a four-door

Pontiac, was approximately 1000 feet off the roadway when he arrived at the

scene. 3 R.R. at 67 & 74. According to Janko, Appellant’s vehicle was

traveling “highway speed” when “something happened in the vehicle or the

vehicle lost control” and crashed. 3 R.R. at 71.

      Officer Marc Harrod transported Appellant’s blood sample to the

Department of Public Safety laboratory. 3 R.R. at 83. He also testified that the

evidence room at the police department where Appellant’s blood was stored is

not refrigerated. It is also not required to be refrigerated. 5 R.R. at 30.

      Joseph Salinas testified that he knew Appellant through Christopher

Manka, his best friend. 4 R.R. at 11. Prior to October 15, 2011, he had spent




                                         5
time with Appellant a “handful” or a “couple” of times. 4 R.R. at 12.

According to Salinas, Appellant was not a “heavy drinker.” 4 R.R. at 14.

         On October 15, 2011, Appellant and Manka came to his residence at

9:00 p.m. They stayed at his apartment for a “little bit” and then went to the

Pelican Lounge. 4 R.R. at 15-16. According to Salinas, they did not drink any

alcoholic beverages at his apartment. 4 R.R. at 17.

         Appellant was driving her vehicle, Manka was the front passenger, and

Salinas sat on the passenger side of the rear seat. They stopped at a

convenience store to get a six-pack of Bud Light. Appellant or Manka bought

the beer. 4 R.R. at 17-18. The beer was supposed to be “for the guys.” 4 R.R.

at 25.

         They arrived at the Pelican Lounge at around 10:00 or 10:15 p.m. and

stayed there for 45 minutes or an hour. He had two drinks. 4 R.R. at 19.

Appellant “did not have no more than two drinks.” Salinas explained that he

would not get in the car with a drunk driver. 4 R.R. at 20. When the

prosecutor asked Salinas what Manka drank, Salinas replied, “I did not pay

attention to those insignificant details.” 4 R.R. at 21.

         They left the bar around 11:00 or 11:15 p.m. and went across the street

to a Whataburger. 4 R.R. at 21. After they went through the drive-thru, they




                                         6
spent about 20 or 30 minutes in the parking lot while Appellant ate. 4 R.R. at

22-23. They then headed to Manka’s apartment. 4 R.R. at 24.

      On the way back to Manka’s apartment, there was what Salinas initially

referred to as “a little bit of a disagreement” between Appellant and Manka.

At that point, Salinas “just wanted to get home.” Salinas then referred to the

disagreement as an “argument.” 4 R.R. at 26.

      At one point, Appellant “tapped” Manka “a couple of times” to get him

to shut up. 4 R.R. at 27. Salinas testified that the wreck occurred a minute or a

couple of minutes after the tapping. 4 R.R. at 27-28. Later, when the

prosecutor asked him if he recalled previously telling her that the wreck

occurred “seconds” after the tapping, Salinas replied, “Couple of seconds,

maybe a minute.” 4 R.R. at 96-97.

      Salinas told the police that Appellant struck Manka’s shoulder three

times with her right hand. She was “using her right hand like ‘shut up

already.’” 4 R.R. at 33.

      Salinas did not recall Appellant’s vehicle swerving or any oncoming

vehicle prior to the wreck. He testified that he was “not paying attention

outside the vehicle.” 4 R.R. at 28.




                                        7
      After the wreck, Salinas crawled out of the vehicle. He sustained a

“posterior dislocation.” In other words, his hip dislocated and went into his

rectum. 4 R.R. at 29. He underwent two surgeries. 4 R.R. at 30.

      Christopher Manka married Appellant three weeks before the trial.

Prior to their marriage, they had known each other for 13 years. 4 R.R. at 42-

43.

      In October of 2011, they were “just getting back together” after taking a

“break” for about six months. On October 15, 2011, they had been back

together for a couple of days or a couple of weeks. 4 R.R. at 43. They had just

started talking again. 4 R.R. at 55. During the six months they stopped seeing

each other, they had both dated other people. 4 R.R. at 59. When Manka was

asked if that created hardship in their relationship when they were getting

back together, he replied, “There is going to be pain there because we were

together ten years and then to see the person you love with someone else; me

with someone else, there is going to be pain there.” 4 R.R. at 60. Appellant

and Manka had arguments about the people they dated while they were

separated. 4 R.R. at 61. One of the women he had dated came to visit him at

the hospital while he was recuperating and caused trouble. 4 R.R. at 60.




                                       8
      In the thirteen years Manka had known her, he had never seen

Appellant drink more than three drinks. She would not drink “very often at

all.” 4 R.R. at 44.

      Manka testified that did not recall much of what occurred on October

15, 2011. He suffered a cracked skull and a swollen brain as a result of the

wreck. 4 R.R. at 46. He also sustained 27 broken bones. 4 R.R. at 55.

      Manka did not recall what they had to drink at the bar. 4 R.R. at 49. He

also did not recall having an argument with Appellant. 4 R.R. at 51. He did

remember that they bought the six-pack so they could have “two beers a

piece” at his house. 4 R.R. at 52. Appellant later told him that she had two

drinks that evening. 4 R.R. at 56.

      The last thing he remembered seeing were “headlights right next to the

vehicle and just losing control.” Appellant’s vehicle did a “fast twitch” before

going off the roadway. 4 R.R. at 56. He saw a light and what appeared to be a

hood before they went “straight into the bulldozer.” 4 R.R. at 57.

      Emily Bonvino, a forensic scientist with the Department of Public

Safety, testified that Appellant’s blood sample contained .08 grams of alcohol

per 100 milliliters of blood. 4 R.R. at 74. Bonvino explained that alcohol

consumption may affect vision. 4 R.R. at 75. She also explained that at the

time Appellant’s blood sample was drawn, her alcohol level was on the way



                                       9
down or in the elimination phase. 4 R.R. at 77-78. It was also her opinion that

at the time of the collision, Appellant’s blood alcohol level would have been

anywhere between .10 and .15. 4 R.R. at 98-99 & 104-105. Also, in her

experience, storage of the blood sample causes the blood alcohol level to

decrease due to the evaporation of ethanol. 4 R.R. at 78.

      Officer David Lee Connor testified that he had received training in

accident reconstruction and crash data retrieval investigation. 4 R.R. at 106-

107. Appellant’s vehicle, a 2006 Pontiac Torrent, an SUV, had a data

recorder. 4 R.R. at 107. The data he reviewed indicated that Appellant had her

seatbelt buckled and Manka did not have his seatbelt buckled. 4 R.R. at 11.

      Five seconds prior to the crash, Appellant was going 58 miles per hour.

4 R.R. at 111. One second before the crash she was going 47 miles per hour. 4

R.R. at 112. Connor explained that the higher the change in velocity upon

impact, the greater the likelihood of more damage and more severe injury.

Appellant’s vehicle “lost 43 miles an hour almost immediately.” 4 R.R. at

113. And for the eight seconds prior to the crash, her brakes were not

depressed. 4 R.R. at 114.

      Martina Cepeda, a teacher with the Corpus Christi Independent

School District, was returning from her 40th high school reunion when she

noticed Appellant’s vehicle in front of her. 5 R.R. at 6-7. She initially saw



                                       10
Appellant’s vehicle “swerving a little bit.” After she slowed down and backed

off a little bit, Appellant’s vehicle started “fishtailing.” 5 R.R. at 7. She

testified Appellant’s vehicle “was going from side to side really drastically

and then all of a sudden it ended up in a position where it was across the lane

rather than the way we were headed. Suddenly they accelerated and ran into

the tractor on the side.” 5 R.R. at 8. There were no other vehicles on the road

at the time of the collision. 5 R.R. at 12.

      Appellant initially got out of the vehicle and attempted to “rouse the

passenger.” 5 R.R. at 8-9. Cepeda was “right next” to Appellant while

Appellant was attempting to awaken Manka. Appellant then “ran around the

back of the vehicle and started doing something in the vehicle.” She then saw

Appellant come out of the vehicle and throw a bag into the tractor that was

next to the vehicle. 5 R.R. at 10. “It sounded like glass.” 5 R.R. at 11.

      Cepeda could smell alcohol on Appellant’s breath while she was

standing next to her. 5 R.R. at 11.

      During cross-examination, when she was asked to define “fishtailing,”

Cepeda said, “The back part of the car started going drastically from one side

to the other.” 5 R.R. at 12. She never saw Appellant’s break lights prior to the

collision. 5 R.R. at 13. She also testified that she had one glass of wine at the

reunion. 5 R.R. at 14.



                                         11
       After Cepeda responded to the first letter from Appellant’s trial

counsel,3she did not respond to any of his other letters because she found his

tone “very rude.” 5 R.R. at 26 & 28.

                               Appellant’s Case

       Gary Harold Wimbish testified that he was board certified in forensic

toxicology. 4 R.R. at 119. He was paid to review Appellant’s blood analysis. 4

R.R. at 127. Appellant’s blood sample was tested at another laboratory. 4 R.R.

at 129. The toxicology results of the second analysis indicated a blood alcohol

concentration of .06 grams of alcohol per 100 milliliters of blood. 4 R.R. at

143.

       According to Wimbish, the instrument used to analyze Appellant’s

blood at the Department of Public Safety laboratory was calibrated but not

validated. 4 R.R. at 135. He nonetheless acknowledged that the two results

“are close.” 4 R.R. at 133.

       He did not believe that evaporation would have any effects on the

results of an analysis. 4 R.R. at 150. He also testified that trauma slows the

absorption of alcohol into the body. 4 R.R. at 153-154.

       It was his opinion that Appellant was not intoxicated at the time of the

collision. 4 R.R. at 158.

3
 She was referring to Rene Rodriguez. Appellant was also represented by
Terry Shamsie. 5 R.R. at 2 & 12.

                                       12
      During cross-examination, Wimbish acknowledged that he had

previously testified that people become intoxicated with a blood alcohol

content of .05. 4 R.R. at 171-172. He also noted that the American Medical

Association “would like that number to be .05.” 4 R.R. at 172.

      It was also his opinion that naïve drinkers are more susceptible to the

effects of alcohol. Thus, they may become intoxicated at a value below .08. 4

R.R. at 164-165. “Individuals who have constitutional sensitivity can be

impaired at low blood alcohol concentrations.” 4 R.R. at 183.

      It was his general understanding and personal observation that the

consumption of alcohol may intensify angry feelings. 4 R.R. at 179 & 181. He

also testified that alcohol can change the mood of a person. 4 R.R. at 180. It

can also affect judgment. 4 R.R. at 181.

      When Wimbish was asked if his confidence in the .06 value would

change if Appellant’s blood sample had been stored at a location that was not

refrigerated, he replied, “Any value found in that sample would be

unacceptable forensically.” 4 R.R. at 185.

      Appellant testified that she could not remember everything “step by

step.” 5 R.R. at 46. She did remember that she stopped at an Exxon to get a

six-pack on the way to Pelican’s Lounge. 5 R.R. at 48. They stayed at the bar

for about an hour. She initially testified that she had “two to three drinks of



                                      13
Michelob Ultra.” She did not know what a “Bull Blaster” is. 5 R.R. at 49. She

testified that she rarely drinks. 5 R.R. at 50.

      When asked to explain what happened right before the accident,

Appellant said, “As soon as I was driving, we were talking and then all of a

sudden I see a car not with lights coming towards me on my lane. My first

reaction was to veer, to get off the road because I was trying to get control and

I ended up hitting the side of a construction piece.” She then said that she

actually “press[ed] the breaks” before she veered. 4 R.R. at 51.

      According to Appellant, the bag with the six-pack was underneath

Manka’s legs. 5 R.R. at 52. She testified that she threw the bag away because

she was concerned that Manka would be injured when she attempted to get

him out of the vehicle. 5 R.R. at 53.

      Appellant testified that she was going 60 or 65 miles per hour before

the collision. She denied that the vehicle was swerving or fishtailing before

the collision. 5 R.R. at 56.

      During cross-examination, she testified that she might have had two or

three beers at the bar. 5 R.R. at 63-64. She denied telling Officer Ramirez that

she drank a Bull Blaster shot. 5 R.R. at 64-65.




                                         14
      David Torres, a private investigator, testified that he went to Cepeda’s

house five times while unsuccessfully attempting to contact her. He left his

card on two occasions. 5 R.R. at 69.

                           Summary of the Argument

   1. Reply to Appellant’s Issues Nos. 1 & 2: Viewed under the appropriate
      standard of review, the evidence is sufficient to prove that Appellant
      recklessly caused serious bodily injury to the victims.
   2. Reply to Appellant’s Issues Nos. 3 & 4: The evidence is sufficient to
      prove that Appellant collided with a bulldozer. Additionally, any
      variance between the alleged manner and means and the proof is
      immaterial.
   3. Reply to Appellant’s Issue No. 5: No error is shown because a jury
      need not be unanimous about a specific manner and means of how an
      offense was committed.

                                    Argument

1. Reply to Appellant’s Issues Nos. 1 & 2:

      In her first and second issues, Appellant contends the evidence is

legally insufficient to sustain her conviction. Appellant’s Brief at 11.

Specifically, Appellant contends that the evidence is legally insufficient to

prove that she acted recklessly. Appellant’s Brief at 22.

      Appellant makes her argument by ignoring the applicable standard of

review and the evidence.

                   Standard of Review and Applicable Law

      “In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light

                                       15
most favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational fact finder could have found

the essential elements of the crime beyond a reasonable doubt.” Whatley v.

State, 445 SW3d 159, 166 (Tex. Crim. App. 2014) (quoting Gear v. State, 340

SW3d 743, 746 (Tex. Crim. App. 2011)). “This familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“The court on appeal does not engage in a second evaluation of the weight and

credibility of the evidence, but only ensures the jury reached a rational

decision.” Reyes v. State, 267 SW3d 268, 275 (Tex. App.-Corpus Christi

2008, pet. ref’d). “Further, it is not the State’s burden to exclude every

conceivable alternative to a defendant’s guilt.” Temple v. State, 390 SW3d

341, 363 (Tex. Crim. App. 2013).

      Inferences may - and often must - be used to prove the elements of an

offense. Hernandez v. State, 190 SW3d 856, 865 (Tex. App.-Corpus Christi

2006, no pet.); Lopez v. State, 884 SW2d 918, 921 (Tex. App.-Austin 1994,

pet. ref’d). Juries are permitted to draw multiple reasonable inferences from

the evidence (direct or circumstantial) as long as each inference is supported

by the evidence presented at trial, but they are not permitted to draw



                                        16
conclusions based on speculation. Anderson v. State, 416 SW3d 884, 888

(Tex. Crim. App. 2013); Hooper v. State, 214 SW3d 9, 16 (Tex. Crim. App.

2007). When faced with a record of historical facts that supports conflicting

inferences, a reviewing court “must presume-even if it does not affirmatively

appear in the record-that the trier of fact resolved any such conflicts in favor

of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at

326. “As long as the verdict is supported by a reasonable inference, it is within

the province of the factfinder to choose which inference is most reasonable.”

Laster v. State, 275 SW3d 512, 523 (Tex. Crim. App. 2009).

      In analyzing legal sufficiency, a reviewing court must consider all of

the evidence in the record, whether direct or circumstantial, properly or

improperly admitted, or submitted by the prosecution or defense. Jackson, 443

U.S. at 319; Clayton v. State, 235 SW3d 772, 778 (Tex. Crim. App. 2007).

             Circumstantial evidence is as probative as direct
             evidence in establishing the guilt of an actor, and
             circumstantial evidence alone can be sufficient to
             establish guilt. In such cases, it is not necessary that
             every fact and circumstance point directly and
             independently to the defendant’s guilt; it is enough
             if the conclusion is warranted by the combined and
             cumulative force of all of the incriminating
             circumstances. Furthermore, the trier of fact may use
             common sense and apply common knowledge,
             observation, and experience gained in ordinary
             affairs when drawing inferences from the evidence.




                                        17
Acosta v. State, 429 SW3d 621, 625 (Tex. Crim. App. 2014) (quotation marks

and footnotes omitted). Because all of the evidence – both direct and

circumstantial – must be evaluated as a whole by the reviewing court, it is not

appropriate to consider evidence myopically or to point out problems with the

individual, separate facts underlying the State’s case. Id. at 631; see also

Merritt v. State, 368 SW3d 516, 526 (Tex. Crim. App. 2012) (disapproving of

a “divide-and-conquer” approach when reviewing the sufficiency of the

evidence).

      The legal sufficiency of the evidence is measured against the elements

of the offense as defined by a hypothetically correct jury charge. Malik v.

State, 953 SW2d 234, 240 (Tex. Crim. App. 1997). A person commits the

offense of assault if the person intentionally, knowingly, or recklessly causes

bodily injury to another. Tex. Penal Code § 22.01(a)(1). A person commits the

offense of aggravated assault if the person commits assault as defined in

Section 22.01 and the person causes serious bodily injury to another. Tex.

Penal Code § 22.02(a)(1).

      A person acts recklessly with respect to the result of her conduct when

she is aware of, but consciously disregards, a substantial and unjustifiable risk

that the result will occur. Tex. Penal Code § 6.03(c); Elliott v. State, No. 13-

13-00220-CR, 2015 WL 1869472, at *3 (Tex. App.-Corpus Christi Apr. 23,



                                       18
2015, no pet. h.) (not designated for publication). The risk must be of such a

nature and degree that its disregard constitutes a gross deviation from the

standard of care that an ordinary person would exercise under all

circumstances as viewed from the actor’s standpoint. Id. “Recklessness can be

applied generally to the act of driving.” Id.

      Anticipating variances in the proof, the State may plead alternative

“manner and means.” Desormeaux v. State, 362 SW3d 233, 239 (Tex. App.-

Beaumont 2012, no pet.). However, the State is not required to prove guilt

under all the theories alleged. Id. “Proof of guilt under one theory of the

offense will suffice for conviction.” Id.

      “Absent a judicial confession, the requisite culpable mental state must

ordinarily be inferred from the acts of the accused or the surrounding

circumstances.” Ledesma v. State, 677 SW2d 529, 531 (Tex. Crim. App.

1984); see also Elliott, 2015 WL 1869472, at *3 (proof of a culpable mental

state generally relies on circumstantial evidence).

      “A ‘consciousness of guilt’ is perhaps one of the strongest kinds of

evidence.” Hyde v. State, 846 SW2d 503, 505 (Tex. App.-Corpus Christi

1993, pet. ref’d). “It is consequently a well accepted principle that any

conduct on the part of a person accused of a crime subsequent to its

commission, which indicates a ‘consciousness of guilt,’ may be received as a



                                        19
circumstance tending to prove that he committed the act with which he is

charged.” Id. “Attempts to conceal incriminating evidence, inconsistent

statements, and implausible explanations to the police are probative of

wrongful conduct and are . . . circumstances of guilt.” Guevara, 152 SW3d

45, 50 (Tex. Crim. App. 2004); see also Hacker v. State, 389 SW3d 860, 871

(Tex. Crim. App. 2013) (“The destruction, suppression or fabrication of

evidence undoubtedly gives rise to a presumption of guilt to be dealt with by

the jury.”); Elliott, 2015 WL 1869472, at *4 (jury could have inferred

appellant’s recklessness from her conduct after the accident that demonstrated

her consciousness of guilt).

                                  Discussion

      While Appellant acknowledges that this Court is required to view the

evidence in the light most favorable to the verdict, Appellant’s Brief at 23, his

Statement of Facts and his argument ignore that requirement. Appellant’s

Brief at 5-11, 12-22 & 30-33. As this Court noted in Elliott, a vehicular

manslaughter case,4 the jury is the “exclusive judge of the credibility of the

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.” 2015 WL

1869472, at *2 (quoting Wesbrook v. State, 29 SW3d 103, 111 (Tex. Crim.

4
 A person commits the offense of manslaughter if he recklessly causes the
death of an individual. Tex. Penal Code § 19.04(a).

                                       20
App. 2000)). An appellant may not attempt to rehash weight and credibility

issues on appeal. Temple v. State, 390 SW3d at 363; Reyes, 267 SW3d at 275.

      Besides looking at the evidence in the light most favorable to her,

Appellant also misstates the evidence. For example, she contends that the

highest speed she was recorded driving was 58 miles per hour on an open

stretch of roadway. Appellant’s Brief at 31. Actually, Officer Connor testified

that the data recorder he examined could only record up to five seconds of

pre-crash data. So he testified that five seconds before the crash Appellant was

traveling 58 miles per hour. 4 R.R. at 111. While she contends that she had

“two Michelob Ultra beers,” Appellant’s Brief at 6, she testified that she

might have had two or three beers. 5 R.R. at 63-64. While Appellant contends

that Cepeda smelled alcohol “on the scene,” Appellant’s Brief at 8, Cepeda

actually testified that she smelled alcohol on Appellant’s breath. 5 R.R. at 11.

And while Appellant testified that the broken beer bottles were “on the

floorboard of the vehicle,” Appellant’s Brief at 32, Cepeda testified that

Appellant “ran around the back of the vehicle” to get the beer bottles. 5 R.R.

at 10. According to Officer Ramirez, she then went around to the back of the

bulldozer to dispose of the beer in an elevated container attached to the

bulldozer. 3 R.R. at 48-50.




                                       21
       Viewed in the light most favorable to the verdict, the record shows the

following:

● On the night of the collision, Appellant and Manka had recently reunited

after taking a six-month break from each other. 4 R.R. at 43. The breakup had

hurt Appellant. 4 R.R. at 60. Appellant and Manka had argued about the

people they were dating during the breakup. 4 R.R. at 61.

● While at the bar, Appellant had three beers and a shot in 45 minutes or one

hour. 3 R.R. at 54-55; 4 R.R. at 19; 5 R.R. at 49.

● Appellant was intoxicated. 3 R.R. at 26-27; 4 R.R. at 47.

● Appellant rarely drinks. Naïve drinkers are more susceptible to the effects

of alcohol. 4 R.R. at 164-165 & 183; 5 R.R. at 50.

● Alcohol can change the mood of a person and intensify angry feelings. 4

R.R. at 179 & 181.

● A couple of seconds before the collision, Appellant was arguing with

Manka and striking him on the shoulder three times to make him shut up. 4

R.R. at 27, 33 & 96-97.

● Just before the collision, Appellant’s vehicle was observed swerving and

fishtailing. 5 R.R. at 7.

● Rather than following the slight bend in the road, Appellant drove straight

off the roadway and never veered. 3 R.R. at 24.



                                       22
● Appellant was traveling at “highway speed” when she left the roadway. And

she never applied her brakes. 3 R.R. at 71; 4 R.R. at 114; 5 R.R. at 13.

● After the collision, Appellant disposed of the beer bottles in a location

where they were not likely to be found. 3 R.R. at 48-49 & 51.

      The jury was instructed that they could convict Appellant if they found

beyond a reasonable doubt that she recklessly, to wit: (1) by failing to control

the vehicle she operated, or (2) by failing to keep a proper lookout for another

vehicle, or (3) by failing the keep the motor vehicle she operated on the

roadway, or (4) by operating a motor vehicle while impaired, cause serious

bodily injury to the victims by driving a motor vehicle into and against a

bulldozer. C.R. at 1250-1251. There is evidence in the record that supports

each and all of these theories.

      In Elliott, the appellant admitted that she was distracted and intoxicated

when she struck a pedestrian. This Court held that this “demonstrated to a

rational jury that she consciously created a substantial and unjustifiable risk of

danger to others.” 2015 WL 1869472, at *3. While Appellant made no such

concession in this case, there is sufficient evidence in the record from which

the jury could have reasonably concluded that Appellant created a substantial

and unjustifiable risk of danger to others. See Trepanier, 940 SW2d 827, 830

(Tex. App.-Austin 1997, pet. ref’d) (despite lack of concession by appellant,



                                        23
evidence was sufficient to show that appellant created a substantial and

unjustifiable risk).

       Also in Elliott, this Court held that “the jury could have inferred

Appellant’s recklessness from her furtive conduct after the accident that

demonstrated her consciousness of guilt.” 2015 WL 1869472, at *4.

       Appellant contends that since the jury acquitted her of the intoxication

assault charges, those verdicts preclude a finding that she was impaired.

Appellant’s Brief at 14. However, the Court of Criminal Appeals rejected a

similar argument in Zuniga v. State, 144 SW3d 477 (Tex. Crim. App. 2004),

overruled on other grounds by Watson v. State, 204 SW3d 404, 415-417 (Tex.

Crim. App. 2006) In Zuniga, the appellant was acquitted of intoxication

manslaughter and convicted of manslaughter. Id. at 478. The Court of Criminal

Appeals rejected the argument that the acquittal for intoxication manslaughter

prevented a jury from considering alcohol use along with other conduct in

concluding that the appellant’s conduct was reckless. Id. at 487.

       And to convict Appellant of the two aggravated assault counts, the jury

did not have to find that she was intoxicated. They just had to find that she was

operating a motor vehicle while impaired. C.R. at 1250-1251. See Rubio v.

State, 203 SW3d 448, 452 (Tex. App.-El Paso 2006, pet. ref’d) (“The fact that

one may legally drive after consuming alcohol does not prevent the State from



                                       24
alleging the driver was reckless in doing so.”); Ventura-Salmeron v. State, No.

03-98-00470-CR, 2000 WL 140906, at *4 n.1 (Tex. App.-Austin Feb. 3, 2000,

pet. ref’d) (not designated for publication) (“We assume the State chose its

language carefully, and by impairment due to alcohol consumption meant a

condition short of intoxication.”).

      While Appellant also contends that there is no evidence to indicate that

she actually did foresee the risk involved and then consciously decided to

ignore it, Appellant’s Brief at 33, in a case of this nature, the defendant need

not be aware of the specific risk posed to another. Trepanier v. State, 940

SW2d at 829; Elliott, 2015 WL 1869472, at *3. “[W]hat matters is that she

consciously created an unjustified risk of danger to others.” Elliott, 2015 WL

1869472, at *3.

      Considering all of the evidence in the record, the jury would have been

acting irrationally if it had acquitted Appellant of the aggravated assault

charges.

      Accordingly, Appellant’s issues should be overruled.

2. Reply to Appellant’s Issues Nos. 3 & 4:

      In her third and fourth issues, Appellant contends that because the State

“failed to produce any evidence” that Appellant drove her vehicle “into and

against a bulldozer,” a fatal variance exists. Appellant’s Brief at 33.



                                        25
       Appellant’s contention is without merit.

                   Standard of Review and Applicable Law

       In Gollihar v. State, 46 SW3d 243 (Tex. Crim. App. 2001), the

appellant was convicted of stealing a go-cart. On appeal, he claimed that the

evidence was insufficient because the model number of the stolen cart alleged

in the indictment and the jury charge did not correspond with the evidence at

trial which showed a different model number. Id. at 244.

       The Court of Criminal Appeals initially noted that “[a] variance occurs

when there is a discrepancy between the allegations in the charging instrument

and the proof at trial.” Id. at 246. It then noted that it has “routinely treated

variance claims as insufficiency of the evidence problems.” Id. at 247.

       After discussing their opinion in Malik, the Court held “that a

hypothetically correct charge need not incorporate allegations that give rise to

immaterial variances.” Id. at 256. In order to determine if a variance is

material or immaterial, two questions must be asked: (1) whether the

indictment, as written, informed the defendant of the charge against him

sufficiently to allow him to prepare an adequate defense at trial, and (2)

whether prosecution under the deficiently drafted indictment would subject

the defendant to the risk of being prosecuted later for the same crime. Id. at

257.



                                       26
      “[W]hen faced with a sufficiency of the evidence claim based upon a

variance between the indictment and the proof, only a ‘material’ variance will

render the evidence insufficient.” Id. “Allegations giving rise to immaterial

variances may be disregarded in the hypothetically correct charge, but

allegations giving rise to material variances must be included.” Id.

      The Court ultimately held that model number variance was not material.

Id. at 258.

      In Johnson v. State, 364 SW3d 292 (Tex. Crim. App. 2012), the

appellant was charged with aggravated assault. The indictment alleged that he

intentionally and knowingly caused serious bodily injury to the victim “by

hitting her with his hand or twisting her arm with his hand.” However, the

victim testified that “appellant threw her against the wall and that hitting the

wall caused her to fall to the floor and break her arm.” On appeal, the

appellant claimed that the variance between pleading and proof rendered the

evidence legally insufficient. Id. at 293.

      After discussing its prior opinion in Gollihar, the Court summarized the

different types of variances as follows:

              [V]ariances can be classified into three categories,
              depending upon the type of allegation that the State
              has pled in its charging instrument but failed to
              prove at trial. First, a variance involving statutory
              language that defines the offense always renders the
              evidence legally insufficient to support the

                                        27
              conviction (i.e. such variances are always are always
              material). Second, a variance involving a non-
              statutory allegation that describes an “allowable unit
              of prosecution” element of the offense may or may
              not render the evidence legally insufficient,
              depending upon whether the variance is material
              (i.e. such variances are sometimes material). Finally,
              other types of variances involving immaterial non-
              statutory allegations do not render the evidence
              legally insufficient. The variance in the present case
              falls within the third category.

Id. at 298-299; see also Fritzching v. State, No. 02-10-00431-CR, 2012 WL

1222033, at *4 (Tex. App.-Fort Worth Apr. 12, 2012, pet. ref’d) (mem. op., not

designated for publication) (“Several courts have held that the manner and

means of an offense - particularly assault – is not an essential element of the

offense and therefore need not be included in the hypothetically correct jury

charge.”).5

      The Court then affirmed the judgment of the court of appeals affirming

the trial court’s judgment. 364 SW3d at 299.

                                   Discussion

      Though Appellant contends that the State “failed to produce any

evidence” that Appellant collided with a bulldozer, Appellant’s Brief at 33 &

35, she also notes that Officer Ramirez testified that Appellant crashed into a


5
 “The phrase ‘manner and means’ describes how the defendant committed the
specific statutory criminal act.” Ngo v. State, 175 SW3d 738, 745 (Tex. Crim.
App. 2005).

                                        28
bulldozer. Appellant’s Brief at 35-36. Even Appellant’s husband testified that

Appellant collided with a bulldozer. 4 R.R. at 57.

      Additionally, Appellant’s argument ignores Johnson.6 “An immaterial

variance is disregarded in a sufficiency of the evidence review. Appellant’s

claim has no merit.” Ngo, 46 SW3d at 258.

      Accordingly, Appellant’s issues should be overruled.

3. Reply to Appellant’s Issue No. 5:

      In his final issue, Appellant contends that “[t]he disjunctive submission

of the jury charge as well as arguments made by the State resulted in a non-

unanimous verdict, which harmed [Appellant].” Appellant’s Brief at 37.

      Appellant’s contention is without merit.


6
  While Appellant contends that the variance impaired her ability to prepare
her defense, Appellant’s Brief at 36, her defense was not based upon the type
of machinery that she struck. Instead, Appellant claimed that, rather than
being caused by her recklessness, the collision was caused by an oncoming
vehicle that crossed into her lane. 4 R.R. at 51. Appellant even acknowledged
that she struck some type of construction equipment. 4 R.R. at 51. See
Gollihar, 46 SW3d at 258 (discussing whether the indictment gave the
appellant sufficient notice to prepare a defense). And the record reflects that
she was provided with a “discovery package” pursuant to the State’s open file
policy. 4 R.R. at 30. Additionally, since the unit of prosecution for assaultive
offenses is each victim, Ex parte Castillo, No. PD-0545-14, 2015 WL
3486960, at *5 (Tex. Crim. App. June 3, 2015), Appellant may not be
prosecuted again for the same crimes. See Henry v. State, No. 10-11-00443-
CR, 2012 WL 2445048, at *1 (Tex. App.-Waco June 27, 2012, no pet.) (mem.
op., not designated for publication) (two aggravated assault counts that alleged
the same offense and differed only in the manner and means violated the
Double Jeopardy Clause).

                                       29
                   Standard of Review and Applicable Law

       Alleged charge error is reviewed by considering two questions: (1)

whether error existed in the charge; and (2) whether sufficient harm resulted

from the error to compel reversal. Ngo, 175 SW3d at 744. Preservation of

charge error does not become an issue until it is necessary to assess harm. Id. at

743.

             Under the Texas Constitution and Code of Criminal
             Procedure, a Texas jury must reach a unanimous
             verdict. The jury must agree that the defendant
             committed one specific crime. That does not mean,
             however, that the jury must unanimously find that
             the defendant committed the crime in one specific
             way or even with one specific act.

Landrian v. State, 268 SW3d 532, 535 (Tex. Crim. App. 2008) (footnotes

omitted); see also Marinos v. State, 186 SW3d 167, 175 (Tex. App.-Austin

2006, pet. ref’d) (“An indictment may allege different manner or means of

committing a single offense, and jurors are not required to agree upon a single

manner or means.”).

       The Court of Criminal Appeals has held that alternate pleading of the

differing methods of committing one offense may be charged in one

indictment. Kitchens v. State, 823 SW2d 256, 258 (Tex. Crim. App. 1991).

“And although the indictment may allege the differing methods of committing

the offense in the conjunctive, it is proper for the jury to be charged in the



                                       30
disjunctive.” Id. When the differing methods are submitted to the jury in the

disjunctive, the jury may return a general verdict if the evidence supports a

conviction under any one of them. Id.; see also Marinos, 186 SW3d at 175.

The unanimity requirement is not violated by instructing the jury on alternate

theories of committing the same offense. Saenz v. State, 451 SW3d 388, 390

(Tex. Crim. App. 2014); Jourdan v. State, 428 SW3d 86, 94 (Tex. Crim. App.

2014) (“Therefore, different modes of commission may be presented in a jury

instruction in the disjunctive when the charging instrument, in a single count,

alleged the different means in the conjunctive.”).

                                   Discussion

      Though Appellant now complains about the State’s argument,

Appellant’s Brief at 37, she did not object to the argument. 6 R.R. at 9-10 &

34-35. Consequently, nothing is presented for review. Tex. R. App. P. 33.1(a);

Estrada v. State, 313 SW3d 274, 303 (Tex. Crim. App. 2010).

      While the indictment in this case alleged differing methods of

committing the aggravated assault offenses in the conjunctive, C.R. at 4, the

jury was charged in the disjunctive. C.R. at 1250-1251.

      Citing Ngo, Appellant’s Brief at 38 & 40, Appellant contends that the

charge deprived her of a unanimous verdict. However, Appellant’s reliance on

Ngo is misplaced because that case dealt with an indictment that contained



                                       31
three paragraphs within a single count that alleged three distinct offenses. The

three application paragraphs of the jury charge permitted the jury to convict the

defendant without unanimously agreeing upon the commission of any one the

three alleged offenses. 175 SW3d at 744.

      In the instant case, Appellant acknowledges that she was charged by

indictment with two counts of the same offense. Appellant’s Brief at 38. The

trial judge properly instructed the jury in the disjunctive because the jury did

not have to agree on the different manner and means alleged in the indictment.

Id. at 745-746. “Put simply, the jury must unanimously agree about the

occurrence of a single criminal offense, but they need not be unanimous about

the specific manner and means of how that offense was committed.” Young v.

State, 341 SW3d 417, 422 (Tex. Crim. App. 2011).

      As in this case, the appellant in Marinos, an aggravated assault case,

contended that jury unanimity was required with respect to the specific manner

or means by which the aggravated bodily injury assault was committed. 186

SW3d at 175. The Austin Court of Appeals disagreed.            Id. Marinos was

subsequently cited with approval by the Court of Criminal Appeals in

Landrian. 268 SW3d at 539 n.31.

      The trial court did not err in charging the jury in the disjunctive,

      Accordingly, Appellant’s issue should be overruled.



                                       32
                                     Prayer

       For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                 Respectfully submitted,

                                 /s/ Adolfo Aguilo, Jr.
                                 Adolfo Aguilo, Jr.
                                 State Bar No. 00936750
                                 Assistant District Attorney
                                 105th Judicial District of Texas
                                 901 Leopard, Room 206
                                 Corpus Christi, Texas 78401
                                 (361) 888-0410
                                 (361) 888-0399 (fax)
                                 adolfo.aguilo@co.nueces.tx.us



                       Rule 9.4 Certificate of Compliance

       In compliance with Texas Rule of Appellate Procedure 9.4(i), I certify

that the number of words in this brief, including those matters listed in Rule

9.4(i)(1), is 8,314.

                                 /s/ Adolfo Aguilo, Jr.
                                 Adolfo Aguilo, Jr.




                                       33
                             Certificate of Service

        This is to certify that this brief was emailed this 8th day of September,

2015,       to     Appellant’s      counsel,     Dante       Eli     Dominguez

(ddominguez.law@gmail.com).


                                 /s/ Adolfo Aguilo, Jr.
                                 Adolfo Aguilo, Jr.




                                        34
