594 S.W.3d 804
Tex. App.2020Background
- Defendant Robert Eric Wade III was indicted for aggravated assault for allegedly biting off part of Taylor Sughrue’s earlobe in July 2016; the indictment included a deadly-weapon notice alleging the defendant’s teeth were a deadly weapon.
- At trial the State presented testimony from the victim, a paramedic, an officer, and a household witness; medical and EMS records and photographs showing an amputation/laceration of the left earlobe and substantial blood were admitted.
- Sughrue testified doctors could not reattach the earlobe, he received 11 sutures, still had nerve pain, and would be permanently disfigured; he displayed his ear to the jury.
- Wade testified he tackled and wrestled with Sughrue, bit while being held in a headlock, admitted he bit off the earlobe but denied intent to cause serious bodily injury and said he would not notice a visible difference between the ears if he didn’t know Sughrue.
- Jury found Wade guilty of aggravated assault, answered the deadly-weapon special issue affirmatively, and recommended community supervision; district court sentenced Wade to seven years’ community supervision.
- On appeal Wade argued (1) evidence was insufficient to prove serious bodily injury and (2) the trial court erred in refusing his requested lesser-included-offense (assault) instruction. The court reversed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Wade) | Held |
|---|---|---|---|
| Sufficiency of evidence that injury was "serious bodily injury" (aggravated assault element) | Evidence (medical records, photos, testimony, visible amputation, pain, inability to reattach) permits reasonable inference of serious permanent disfigurement. | Injury not shown to be "serious"; medical/EMS records and witnesses did not establish serious permanent disfigurement; defendant testified injury not serious and not visibly different. | Held: Evidence legally sufficient to support finding of serious bodily injury. |
| Entitlement to lesser-included-offense instruction (assault) | Court should deny because evidence supports aggravated assault and jury found deadly-weapon; defendant’s testimony about severity is lay opinion and insufficient to raise lesser offense. | Wade’s testimony denying serious bodily injury and stating the injury was not visibly distinct raised more than a scintilla of evidence negating the serious-injury element, entitling him to the lesser instruction. | Held: Trial court erred in denying lesser-included instruction; error caused "some harm" and requires reversal and remand. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes legal-sufficiency standard)
- Hooper v. State, 214 S.W.3d 9 (circumstantial and direct evidence equally probative in sufficiency review)
- Stuhler v. State, 218 S.W.3d 706 (serious bodily injury judged from injury as inflicted)
- Ritcherson v. State, 568 S.W.3d 667 (two-step test for lesser-included-offense instruction)
- Bullock v. State, 509 S.W.3d 921 (an offense is lesser-included if within proof necessary for charged offense)
- Sizemore v. State, 387 S.W.3d 824 (ear-bite causing loss of tissue and persistent pain sufficed as serious bodily injury)