Motion for Rehearing Denied; Memorandum Opinion filed June 20, 2013
Withdrawn; Dismissed for Want of Jurisdiction (No. 14-12-00719-CR and No.
14-12-00728), Affirmed (No. 14-12-00718-CR), and Substitute Memorandum
Opinion on Rehearing filed July 30, 2013.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-12-00718-CR
                            NO. 14-12-00719-CR
                            NO. 14-12-00728-CR


                  WILBURT DWAINE CASH, Appellant

                                     V.
                     THE STATE OF TEXAS, Appellee


                 On Appeal from the 240th District Court
                         Fort Bend County, Texas
        Trial Court Cause Nos. 11-DCR-056924A, 11-DCR-056925A,
                            11-DCR-056926A


     SUBSTITUE MEMORANDUM OPINION
             ON REHEARING
     We deny appellant Wilburt Dwaine Cash’s motion for rehearing, withdraw
our previous memorandum opinion, vacate our previous judgment, and issue this
Substitute Memorandum Opinion on Rehearing and a new judgment.
       In three separate appeals, appellant contends the evidence is legally
insufficient to support his convictions for (1) aggravated sexual assault (14-12-
00718-CR), (2) aggravated kidnapping (14-12-00719-CR), and (3) aggravated
assault committed on or about March 6, 2011 (14-12-00728-CR).1 We dismiss for
want of jurisdiction cause numbers 14-12-00719-CR and 14-12-00728-CR and
affirm the trial court’s judgment in cause number 14-12-00718-CR.

                                    I. BACKGROUND

       In September 2010, appellant and his girlfriend, the complainant, were at the
complainant’s house. While they were in the bathroom, appellant accused the
complainant of infidelity and began questioning her. Appellant poured bleach and
lighter fluid on the complainant, burning her arms and chest. The next day, the
complainant went to the hospital for treatment. Police officers questioned her at
the hospital. She was initially uncooperative but eventually indicated appellant
had assaulted her.     Officers arrested appellant later that day.         Appellant was
released from custody after posting bond.

       In March 2011, appellant and the complainant were again together in the
bathroom of her house when appellant accused her of infidelity. Appellant had the
complainant sit in a chair and taped her legs to the chair legs and her arms behind
her back. The complainant testified she did not “put up a fight” because she knew
appellant would overpower her. While questioning the complainant, appellant
struck her feet with a mallet.        Appellant used pliers to repeatedly grab the
complainant’s nipples, causing wounds. He then penetrated the complainant’s
vagina with pliers, using them to grab her clitoris. Appellant continued to question


       1
         Appellant has also appealed three other related convictions in cause numbers 14-12-
00715-CR, 14-12-00716-CR, and 14-12-00720-CR. We do not address the merits of these
appeals in this opinion.

                                             2
the complainant and turned on a clothes iron. He used the iron to burn the
complainant’s chest and legs. The complainant freed her hands and wrestled with
appellant. During the struggle, she was burned several more times. Eventually,
appellant ceased torturing the complainant in the bathroom, and they went to the
bedroom where he forced her to have sex with him.

       The next morning, the complainant went to the hospital for treatment. The
complainant informed medical personnel about her torture, including that appellant
had used pliers to grab her sexual organ. Officers questioned the complainant at
the hospital. She stated appellant had caused her injuries but “that she loved him,
and she wanted to work it out with him.”

       Thereafter, officers arrested appellant, and he was ultimately charged with
six separate felonies. Regarding the three felonies relevant to this appeal, appellant
pleaded guilty without sentence recommendations to aggravated kidnapping and
aggravated assault committed on or about March 6, 2011 and not guilty to
aggravated sexual assault. After a bench trial, the trial court found appellant guilty
of aggravated sexual assault.            Appellant was sentenced to fifteen years’
imprisonment for aggravated kidnapping, fifteen years’ imprisonment for
aggravated assault, and life imprisonment for aggravated sexual assault (sentences
to run concurrently).2




       2
         In the other three felony cases which are not part of this appeal, appellant was charged
with tampering with a witness committed on or about March 11, 2011, tampering with a witness
committed on or about March 12, 2011, and aggravated assault committed on or about
September 12, 2010.          Appellant pleaded guilty to these charges without sentence
recommendations and was sentenced to imprisonment for two years, two years, and fifteen years,
respectively, to run concurrently with his other three sentences.

                                               3
             II. OFFENSES TO WHICH APPELLANT PLEADED GUILTY

      In cause numbers 14-12-00719-CR and 14-12-00728-CR, appellant contends
the evidence is legally insufficient to support his convictions for aggravated
kidnapping and aggravated assault. However, we first must address the State’s
argument that appellant waived his right to appeal these convictions.

      A valid waiver of appeal will prevent a defendant from appealing without
the consent of the trial court. See Ex parte Broadway, 301 S.W.3d 694, 697 (Tex.
Crim. App. 2009). For a defendant’s waiver of appeal to be valid, it must be made
voluntarily, knowingly, and intelligently. Id. For a defendant’s presentencing
waiver of appeal to be valid, it must be part of a plea bargain agreement or the
State must give the defendant consideration for the waiver.             Id.; see also
Washington v. State, 363 S.W.3d 589, 589–90 (Tex. Crim. App. 2012) (per
curiam).

      Appellant did not plead guilty in these causes pursuant to a plea bargain
agreement or in exchange for the State recommending a sentence. Nonetheless, we
conclude appellant received consideration for his waivers.         In the aggravated
kidnapping cause, the State stipulated the complainant was safely released,
reducing the punishment range to a second-degree felony.           In the aggravated
assault cause, the State agreed to drop its “serious bodily injury” allegation,
reducing the crime to a second-degree felony.          We conclude the State gave
appellant consideration for his waivers of appeal and that appellant voluntarily,
knowingly, intelligently, and validly waived his right to appeal in these cases. See
Broadway, 301 S.W.3d at 697.

      There is language in the trial court’s Rule 25.2(a)(2) certifications indicating
the trial court gave appellant permission to appeal “as to punishment, only.” See
Tex. R. App. P. 25.2(a)(2) (requiring trial court to enter certification of defendant’s
                                          4
right to appeal). Presuming, without deciding, that the trial court gave appellant
permission to appeal as to assessment of punishment, the trial court did not give
appellant permission to appeal as to non-punishment issues. Appellant has not
challenged the trial court’s assessment of punishment.       In these two appeals,
appellant challenges only the sufficiency of the evidence supporting the trial
court’s determination of guilt. Appellant has validly waived his right to appeal the
trial court’s determination of guilt in these two cases. Accordingly, we dismiss for
want of jurisdiction cause numbers 14-12-00719-CR and 14-12-00728-CR.

                       III. AGGRAVATED SEXUAL ASSAULT

      In cause number 14-12-00718-CR, appellant contends the evidence is legally
insufficient to support his conviction for aggravated sexual assault. Appellant
pleaded not guilty to this charge, and the trial court found him guilty after a bench
trial. Thus, we review sufficiency of the evidence under the familiar Jackson
standard. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).

      Under the Jackson standard, we view all of the evidence in the light most
favorable to the verdict and determine, based on the evidence and any reasonable
inferences therefrom, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011) (citing Jackson, 443 U.S. at 318–19). We do not
sit as a thirteenth juror and may not substitute our judgment for that of the fact
finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of
the fact finder to fairly resolve conflicts in testimony, weigh the evidence, and
draw reasonable inferences from basic facts to ultimate facts. Id.

      To convict appellant of aggravated sexual assault as charged in the
indictment, the State had to prove beyond a reasonable doubt that appellant
                                         5
intentionally or knowingly caused the penetration of the complainant’s sexual
organ by pliers without her consent and, in the course of the same criminal
episode, used or exhibited a deadly weapon, specifically pliers or an iron. See Tex.
Penal Code Ann. § 22.021(a)(1)(A)(i), (a)(2)(A)(iv) (West Supp. 2011).

          1. Penetration

          Appellant first argues the evidence is insufficient to prove he penetrated the
complainant’s sexual organ with pliers. Appellant correctly notes the complainant
initially testified appellant did not penetrate her vagina. However, the complainant
subsequently testified appellant did penetrate the outer lips of her vagina with the
pliers.     The trial court acted reasonably by resolving this evidentiary conflict
against appellant, and we must defer to this resolution. See Isassi, 330 S.W.3d at
638. Appellant also argues the complainant lacked credibility because, although
she testified at trial regarding this penetration, she admitted testifying at a
protective hearing that appellant did not sexually assault her. Again, we must defer
to the trial court’s finding that the complainant was truthful when she testified
appellant penetrated her vagina. Id. It was reasonable for the trial court to believe
the complainant’s trial testimony, instead of her earlier testimony, because she
explained it was emotionally difficult for her to discuss the assault at the protective
hearing.       The evidence is legally sufficient to support a finding appellant
penetrated the complainant’s sexual organ with pliers.

          2. Consent

          Appellant next argues the evidence is insufficient to prove he penetrated the
complainant’s sexual organ with pliers “without the consent of [the complainant].”
The Penal Code lists eleven situations in which a sexual assault is without the
consent of the complainant. See Tex. Penal Code Ann. §§ 22.021(c), 22.011(b)
(West 2011). Appellant apparently argues the State was limited to proving lack of
                                             6
consent pursuant to three of the eleven situations, specifically those pertaining to
use, or threat of use, of force or violence. See id. §§ 22.021(c), 22.011(b)(1), (2),
(7). Appellant also asserts that, under the indictment, the State could establish
lack of consent only by proving appellant “compelled [the complainant] to submit
or to participate by using or exhibiting a deadly weapon, to-wit: pliers or an iron.”
However, the indictment does not allege any specific lack-of-consent situation.
Thus, contrary to appellant’s arguments, the State could establish lack of consent
under any of the eleven situations supported by the evidence, including the
situation in which “the other person has not consented and the actor knows the
other person is unconscious or physically unable to resist.” See id. § 22.011(b)(3).
We will review sufficiency of the evidence pertaining to this lack-of-consent
situation.
      Appellant asserts the complainant testified she did not defend herself during
the attack. However, the complainant testified she did not initially defend herself
because she knew appellant would overpower her. Appellant also argues that
evidence the complainant did not want to press charges against him negates lack of
consent. However, the trial court could have rationally found the complainant did
not want to press charges because appellant asked her not to, she was romantically
involved with appellant, and she had two children with him—not because she
consented to the sexual assault. The complainant testified appellant squeezed her
clitoris with pliers while she was taped to a chair and being accused of infidelity.
The evidence is clearly sufficient to support a finding beyond a reasonable doubt
that the complainant did not consent to appellant’s sexual assault and appellant
knew she was physically unable to resist.




                                            7
      3. Deadly Weapon

      Finally, appellant argues the evidence is insufficient to prove he used or
exhibited a deadly weapon, namely pliers or an iron, in the course of the same
criminal episode as the sexual assault. A “criminal episode” commences when the
attacker in any way restricts the victim’s freedom of movement and ends with the
final release or escape of the victim from the attacker’s control; use or exhibition
of a deadly weapon at any time during this period will elevate the crime to an
aggravated status. Burns v. State, 728 S.W.2d 114, 116 (Tex. App.—Houston
[14th Dist.] 1987, pet. ref’d). “Exhibit” means “consciously shown, displayed, or
presented to be viewed.” Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App.
2004).

      “Deadly weapon” may be “anything that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. §
1.07(a)(17)(B) (West Supp. 2012). “Serious bodily injury” is “bodily injury that
creates a substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. § 1.07(a)(46).

      The State is not required to show the “use or intended use causes death or
serious bodily injury” but that the “use or intended use is capable of causing death
or serious bodily injury.” Tucker v. State, 274 S.W.3d 688, 691–92 (Tex. Crim.
App. 2008). We evaluate the alleged deadly weapon’s capability to cause death or
serious bodily injury in light of the facts that actually existed at the time of the
offense. Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d). Relevant factors include (1) the words of the accused, (2) the
intended use of the weapon, (3) the size and shape of the weapon, (4) testimony by
the victim that she feared death or serious bodily injury, (5) the severity of any

                                         8
wounds inflicted, (6) the manner in which the assailant allegedly used the object,
(7) physical proximity of the parties, and (8) testimony as to the weapon’s potential
for causing serious bodily injury. Id.

      Appellant restricted the complainant’s freedom when he taped her to a chair.
After sexually assaulting the complainant, appellant produced the iron, plugged it
in, and repeatedly used it to burn her. Thus, appellant exhibited the iron during the
same criminal episode as the sexual assault. See Quincy v. State, 304 S.W.3d 489,
493, 497–98 (Tex. App.—Amarillo 2009, no pet.) (holding evidence sufficient to
support finding defendant used or exhibited deadly weapon, his hand, in course of
same criminal episode as sexual assault even though he punched and choked
victim before sexual assault occurred).

      Additionally, the evidence supports the trial court’s finding that the iron was
a deadly weapon. In the course of appellant’s four-hour torture of the complainant,
appellant produced and plugged in an iron. Although the complainant initially
testified her burns occurred when she was grappling with appellant, she later
admitted appellant intentionally used the iron to burn her chest, thighs, and groin
area. At some point, the complainant freed herself from the tape and began
physically struggling with appellant. During the struggle, appellant continued to
hold the iron, and the complainant was burned on her arms several times as she
attempted to push away the iron. The complainant also fell on the floor, and as she
was “tr[ying] to get up, . . . [appellant] dropped that iron,” causing a large burn on
the back of her thigh. The nurse who treated the complainant told officers, “[Y]ou
could see where [the complainant] would try and close her legs from being burned
and the groin area had several burns.” When asked at trial about the status of her
burns, the complainant testified, “They’re better now.”



                                          9
      Emergency room personnel requested the consult of a plastic surgeon
because of the extent of the complainant’s burns. The plastic surgeon testified the
complainant suffered “traumatic skin loss” and was likely to have “keloid” scars,
but the burns were only “partial thickness,” meaning they did not “enter the fat.”
Nevertheless, he explained it was important the complainant receive treatment for
her burns because of the risk of serious infection, which could result in amputation
or death. At the time he assessed the complainant’s condition, the plastic surgeon
believed medicated cream would adequately treat her burns. However, he could
not determine the extent of the injuries so soon after they were sustained and was
concerned skin grafting may be necessary.3 According to the plastic surgeon, the
complainant was “lucky” because the iron was placed on areas of her body covered
with thick skin, where burns are most likely to heal; had the iron been touched to
other areas of the complainant’s body, such as her eyelids, the iron would have
been capable of causing “extensive damage, permanent damage,” such as blindness
in the case of an eyelid. Moreover, the plastic surgeon testified that, had the iron
contacted the complainant’s skin for a longer period of time, the burns would have
extended to the fat, likely necessitating reconstructive surgery. Finally, the plastic
surgeon opined the iron did not cause more serious injuries because the
complainant probably jerked away when the iron touched her.

      The foregoing evidence is sufficient to support a finding the iron was a
deadly weapon.          Appellant’s use of the iron to torture the complainant, his
continued brandishing of the iron while struggling with the complainant, and his
dropping the iron onto the complainant’s thigh while she was on the floor support a
finding appellant’s use or intended use of the iron was capable of causing serious
permanent disfigurement. See Tex. Penal Code Ann. § 1.07(a)(17)(B), (a)(46).

      3
          The complainant did not attend a scheduled follow-up appointment with the plastic surgeon.

                                                   10
For example, when appellant dropped the iron onto the complainant’s thigh, it was
capable of causing a deep burn necessitating reconstructive plastic surgery.
Without such surgery, the burn would have been permanently disfiguring. See
Sizemore v. State, 387 S.W.3d 824, 828 (Tex. App.—Amarillo 2012, pet. ref’d)
(“[It is a] well-established rule that the relevant issue is the disfiguring effect of the
bodily injury as it was inflicted, not after the effects had been ameliorated or
exacerbated by other actions such as medical treatment.”); Tinker v. State, 148
S.W.3d 666, 671 n.3 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding
diagnosis that injury may result in permanent deformity without proper treatment
sufficient to meet the definition of serious bodily injury).

        Accordingly, we hold the evidence is legally sufficient to support appellant’s
conviction of aggravated sexual assault. We overrule appellant’s issue in cause
number 14-12-00718-CR.4

                                         IV. CONCLUSION

        We dismiss for want of jurisdiction cause numbers 14-12-00719-CR and 14-
12-00728-CR and affirm the trial court’s judgment in cause number 14-12-00718-
CR.


                                                /s/      John Donovan
                                                         Justice


Panel consists of Justices Frost, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).


        4
           Appellant also appears to argue the evidence is insufficient to prove he placed the complainant
in fear of serious bodily injury during the sexual assault. However, appellant was not charged with
having placed the complainant in fear of serious bodily in injury. Thus, the State did not need to prove
this as an element of the offense.

                                                   11
