AFFIRM; and Opinion Filed June 22, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00214-CR

                         ANTHONY TERRENCE SMITH, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1271255-V

                             MEMORANDUM OPINION
                          Before Justices Lang, Stoddart, and Schenck
                                  Opinion by Justice Stoddart
       A jury convicted Anthony Smith of aggravated assault with a deadly weapon. In three

issues Smith argues (1) the evidence is insufficient to show he used a metal baseball bat as a

deadly weapon; (2) cumulative missteps by the trial court and the State violated his constitutional

rights; and (3) the trial court erred by denying his request for a jury instruction on the lesser-

included offense of misdemeanor assault. We affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       The complainant, Gerre Bird, and her boyfriend, Eric Bryant, were at her house when

Bird saw Anthony Smith come into the living room with a metal baseball bat. Smith hit Bryant

several times on his side and back with the bat. The blows knocked Bryant to the ground and left

scars on his body. Smith also chased Bird, grabbed her from behind, and hit her on the head with

the bat.   Bird started bleeding, became dizzy, and fell to the ground.        Bird escaped to a
neighbor’s house and called 911. She told the dispatcher, “[T]his guy is trying to kill me. My

ex-boyfriend is trying to kill me.” Bird was taken to the hospital by ambulance. Her medical

records show she suffered a laceration to her forehead requiring twelve stitches to close and a

concussion.

                                        LAW AND ANALYSIS

A.     Sufficiency of the Evidence

       In his first issue, Smith argues the evidence is insufficient to show the metal bat was a

deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (aggravated assault with

deadly weapon). He does not challenge the evidence supporting any other element of the

offense. We review a challenge to the sufficiency of the evidence on a criminal offense for

which the State has the burden of proof under the single sufficiency standard set forth in Jackson

v. Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App.

2014). Under this standard, the relevant question is whether, after viewing the evidence in the

light most favorable to the verdict, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2011) (footnotes omitted).

       Smith argues the evidence is insufficient to show a deadly weapon because no one

testified Smith used the bat in a manner capable of causing death or serious bodily injury. See

TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B) (deadly weapon), 1.07(a)(46) (serious bodily injury).

Expert testimony is not required to prove a weapon is deadly. Williams v. State, 575 S.W.2d 30,

32 (Tex. Crim. App. 1979). Lay testimony may be sufficient to support a deadly weapon

finding. See Tucker v. State, 274 S.W.3d 688, 691–92 (Tex. Crim. App. 2008). The jury is free

to consider all of the facts of the case, including the nature, location, and severity of the wounds

inflicted when deciding whether a weapon is deadly. Williams, 575 S.W.2d at 32.

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       The evidence shows Smith hit Bryant multiple times with the bat hard enough to cause

him to fall and to leave scars. It also shows Smith hit Bird with the bat, causing her to fall to the

ground dizzy and bleeding. She sustained a concussion and a gash in her forehead that exposed

her skull, and which required twelve stitches to close. Based on this record, we conclude the

evidence is sufficient for a reasonable juror to conclude Smith used the metal bat in a manner

capable of causing death or serious bodily injury and the bat, as used, was a deadly weapon. See

TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 1.07(a)(46). We overrule Smith’s first issue.

B.     Lesser-Included Offense

       In Smith’s third issue, he argues the trial court erred by denying his request for a jury

instruction on the lesser-included offense of misdemeanor assault.             The State concedes

misdemeanor assault is a lesser-included offense of aggravated assault with a deadly weapon.

       The trial court’s decision to submit or deny a lesser-included offense instruction is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App.

2004) (en banc). We apply a two-pronged test to determine if the trial court should have given a

jury charge on a lesser-included offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim.

App. 2007). We first determine if the proof necessary to establish the charged offense includes

the lesser offense. Id. If it does, we review the evidence to determine whether appellant is guilty

only of the lesser offense. Id. at 536. The first prong is uncontested here.

       The second prong is a question of fact and is based on the evidence presented at trial.

Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This prong requires the

reviewing court to determine whether there is some evidence in the record which would permit a

jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included

offense. Id. It “is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense. Rather there must be some evidence directly germane to a lesser-included

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offense for the factfinder to consider before an instruction on a lesser-included offense is

warranted.” Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997).

       Smith was entitled to the requested lesser-included offense instruction only if the record

includes some evidence that Smith did not exhibit or use the bat as a deadly weapon during the

assault. The record does not support this conclusion.

       It is undisputed Smith struck Bryant multiple times with a metal bat hard enough to

knock him over and leave scars. It is also undisputed Smith hit Bird in the forehead with the bat

causing a gash, bleeding, concussion, and loss of consciousness; Bird needed a dozen stitches.

There is no evidence Smith did not use the bat as a deadly weapon. Accordingly, there is no

evidence from which the jury could have determined Smith was only guilty of misdemeanor

assault. The trial court did not abuse its discretion by denying Smith’s request for a jury

instruction on misdemeanor assault. We overrule Smith’s third issue.

C.     Constitutional Claims

       Smith’s second issue states: “Appellant’s constitutional right to a fair trial and due

process under the 5th, 6th, and 14th Amendment [sic] were violated by a cumulation of

violations, including the State’s numerous instances of untimely production of discovery and the

State’s improper closing arguments as well as the court’s denial of appellant’s motions for

mistrial and continuance.” After reviewing his brief, we conclude Smith’s complaints in his

second issue include: (1) the State failed to timely produce multiple pieces of evidence, including

medical records, photographs allegedly showing Bird’s and Bryant’s injuries, records from Child

Protective Services, and video-recorded interviews; (2) the trial court denied multiple motions

for mistrial based on the State’s alleged failure to produce evidence and the State’s violation of

rule 615, see TEX. R. EVID. 615 (production of statements of witnesses in criminal cases); (3) the

trial court denied his motion for continuance based on the State’s alleged repeated discovery

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abuses and violation of rule 615; and (4) the State made improper jury arguments, including the

State struck at Smith “over the shoulder of counsel,” the State referred to facts outside of the

record, the State shifted the burden to Smith, and the prosecutor injected her opinions into her

closing argument.

       Smith’s second issue embraces multiple grounds for alleged error. It attacks several

alleged discovery abuses by the State, multiple instances when the trial court denied Smith’s

motions for mistrial and continuances, and several comments and arguments made by the State

during its closing argument. Smith’s argument asserts the errors by the State and trial court

violated three constitutional provisions. Because Smith argues more than one legal theory as in a

single issue, his second point is multifarious. See Davis v. State, 329 S.W.3d 798, 803 (Tex.

Crim. App. 2010); Solomon v. State, No. 05-14-00634-CR, 2015 WL 3616425, at *3 (Tex.

App.—Dallas June 10, 2015, no pet. h.) (mem. op., not designated for publication).              We

conclude Smith’s second issue is inadequately briefed, and, as such, is waived. See Solomon,

2015 WL 3616425, at *3 (collecting cases); TEX. R. APP. P. 38.1(h).

       Even if we concluded Smith properly briefed his second issue and properly presented it

on appeal, his complaints would fail.

       1.      Brady Material

       Before trial, Smith requested the State provide all documents relevant to his guilt,

innocence, or punishment.     However, Smith complains, the State failed to timely produce

multiple pieces of evidence, including medical records, photographs allegedly showing Bird’s

and Bryant’s injuries, records from Child Protective Services, and video-recorded interviews.

       When the State discloses evidence during trial, we look at whether the defendant was

prejudiced by the tardy disclosure. Little v. State, 991 S.W.2d 864, 867 (Tex. Crim. App. 1999).

The defendant bears the burden to show prejudice. See id. If the defendant does not request a

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continuance, we can assume the tardy disclosure of evidence was not prejudicial and the

defendant has waived his right to appeal the alleged Brady violation. Brindle v. State, No. 05-

10-01258-CR, 2012 WL 1150533, at *3 (Tex. App.—Dallas Apr. 9, 2012, no pet.) (mem. op.,

not designated for publication) (citing State v. Fury, 186 S.W.3d 67, 73 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref’d)).

                a.      Medical Records and Photographs

        During a pretrial hearing, the State informed the trial court it had subpoenaed Bird’s

medical records but had not received them and the State had photographs related to the offense

that Smith’s counsel previously viewed. The State told the trial court it would produce the

photographs after they were loaded on to a CD and also would provide the medical records when

they became available. The State produced the materials during trial.

        Even though Smith’s counsel knew the State failed to disclose medical records and

photographs, he informed the trial court during voir dire that he did not want to reset the trial.

Smith’s counsel never requested additional time to review the medical records and photographs.

Additionally, Smith’s counsel had the opportunity to use the medical records and photographs to

cross-examine witnesses, but did not do so. On appeal, Smith does not argue he would have

used the medical records and photographs differently if he received them earlier.

        Based on this record, we would conclude Smith failed to show he was prejudiced by the

State’s late disclosure of the medical records and photographs.

                b.      CPS Records

        After both sides rested and closed, the State indicated it learned of and was compiling a

CPS report showing “Smith was negligent and participated in negligent supervision due to

assaulting . . . Bird in front of the children.” Smith fails to provide any analysis regarding when

or if the State disclosed the CPS report, how the report was favorable, or how Smith was

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prejudiced. See Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011) (“defendant must

show that (1) the State failed to disclose evidence . . . ; (2) the withheld evidence is favorable to

him; (3) . . . there is a reasonable probability that had the evidence been disclosed, the outcome

of the trial would have been different.”). Additionally, the appellate record does not include a

copy of the CPS report for our review. Therefore, we would again decline to address the merits

of this complaint due to inadequate briefing. See generally TEX. R. APP. P. 38.1(i); see also Leza

v. State, 351 S.W.3d 344, 358 (Tex. Crim. App. 2011).

               c.      Video-Recorded Interviews

       The parties do not dispute the State disclosed videotaped police interviews of Bryant and

Bird during trial. However, Smith’s counsel never requested additional time to review the

videotaped police interviews. Rather, he conceded at trial he had adequate time to review them.

Based on this record, we would conclude Smith failed to show the tardy disclosure prejudiced

him.

       2.      Motions for Mistrial and Continuance

       Smith has two bases for his complaint he was entitled to a mistrial: violations of rule 615

and Brady for the State’s failure to produce video-recorded interviews and the State’s failure to

provide the CPS report.      A mistrial is a remedy appropriate for a narrow class of highly

prejudicial and incurable errors, and we review the trial court’s ruling for an abuse of discretion.

Patterson v. State, 138 S.W.3d 643, 651 (Tex. App.—Dallas 2004, no pet.) (citing Wood v. State,

18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). As we already concluded Smith failed to show he

was prejudiced by the State’s failures to timely produce evidence, we would conclude the trial

court did not abuse its discretion by denying Smith’s motions for mistrial.

       Smith also argues the trial court abused its discretion by denying his motion for

continuance. However, because Smith’s motion for continuance was oral and did not comply

                                                –7–
with statutory requirements, we would conclude Smith did not preserve the issue for appeal.

Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) (unsworn oral motion for

continuance preserves nothing for appeal).

       3.      Improper Jury Arguments

       Smith lodges several complaints related to the State’s closing argument. He asserts the

State struck at Smith “over the shoulder of counsel,” the State referred to facts outside of the

record, the State shifted the burden to Smith, and the prosecutor injected her opinions into her

closing argument. To preserve jury argument error for appellate review, the defendant must

object, request the jury be instructed to disregard the argument, and move for mistrial. Cook v.

State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993). During the State’s closing argument, the

trial court sustained all of Smith’s objections except those concerning the prosecutor injecting

her personal opinion. However, Smith did not request an instruction to disregard, nor did he

request a mistrial on any of his sustained objections. Therefore, Smith did not preserve jury

argument error on his objections concerning the State improperly striking over the shoulder of

counsel, referring to facts outside of the record, or shifting the burden of proof to Smith. See id.

       Smith objected the prosecutor injected her personal opinion into her argument when she

stated “there is no question that Anthony Smith assaulted Ms. Bird.” Permissible jury arguments

include reasonable deductions drawn from the evidence and the State is afforded wide latitude in

its jury argument so long as the argument is supported by the evidence, legitimate, fair, and

offered in good faith. See Brown v. State 270 S.W.3d 564, 570-72 (Tex. Crim. App. 2008).

Because the evidence adduced at trial clearly supported the State’s argument that Smith assaulted

Bird, we would conclude the trial court did not abuse its discretion by overruling Smith’s

objection.




                                                –8–
                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                     /Craig Stoddart/
                                                     CRAIG STODDART
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

140214F.U05




                                               –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ANTHONY TERRENCE SMITH,                            On Appeal from the 292nd Judicial District
Appellant                                          Court, Dallas County, Texas
                                                   Trial Court Cause No. F-1271255-V.
No. 05-14-00214-CR        V.                       Opinion delivered by Justice Stoddart.
                                                   Justices Lang and Schenck participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 22nd day of June, 2015.




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