Robert Eric Wade, III, Appellant v. The State of Texas, Appellee
NO. 03-18-00712-CR
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
January 16, 2020
FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 16-2156-K26, THE HONORABLE SUZANNE BROOKS, JUDGE PRESIDING
Robert Eric Wade, III, was charged with aggravated assault. See
BACKGROUND
As set out above, Wade was charged with committing aggravated assault. Specifically, the indictment alleged that Wade “intentionally, knowingly, or recklessly caused serious bodily injury to Taylor Sughrue, by biting off . . . Sughrue‘s earlobe” in July 2016. The indictment also contained a separate deadly-weapon notice alleging that Wade “used or exhibited a deadly weapon, namely, the defendant‘s teeth, during the commission of” the offense. The undisputed evidence presented at trial established that Sughrue was dating Wade‘s ex-wife, Christina Reale, and was in her home at the time of the offense. The undisputed evidence also established that Reale and Wade were divorced in 2014 but that they started dating again in 2015. The evidence is disputed regarding whether Reale was also dating Wade at the time of the offense.
During the trial, the State called the following individuals to the stand: Sughrue;
In her testimony, K.R. related that Sughrue was intoxicated on the night in question and that Reale helped him walk to the master bedroom. Further, K.R. recalled that she later heard Wade and Reale arguing outside, that Wade walked into the house, and that Wade headed for the master bedroom. Regarding the alleged offense, K.R. testified that Wade got on top of Sughrue while Sughrue was sleeping, that Wade‘s face got near Sughrue‘s ear, and that Sughrue screamed in a way that she had “never heard anybody scream like . . . before.”
Next, the State called Sughrue to the stand. In his testimony, Sughrue stated that he fell asleep in Reale‘s bed but woke up after he felt someone on top of him beating him. Next, Sughrue described experiencing something painful on his ear and neck area and then noticing blood was “pouring off” his ear. When describing the injury, Sughrue stated that Wade “had pulled away and . . . ripped” his ear “away a little bit from [his] actual head.” Further, Sugrue explained that he still had nerve damage at the time of trial that causes him excruciating pain if the ear is directly touched or bent in certain ways. Sugrue testified that the doctors treating his injury were unable to reattach the earlobe, that he was given eleven stitches to close the wound, and that the bottom part of his ear was reattached to his head. Further, Sughrue admitted that he was “devastated” when he learned that the earlobe could not be reattached because he would “be disfigured for the rest of [his] life.” Similarly, Sughrue stated that he was permanently disfigured by the assault. During his testimony, Sughrue stepped down from the witness stand to allow the jury to examine his ears.
After the State rested, Wade testified that K.R. told him that Reale was having an affair a month before the incident in question but that he continued his relationship with Reale after she stated that she was no longer seeing Sughrue. Further, Wade recalled that he had made plans with Reale on the night in question but that she told him that she had to cancel because she
was going to spend the day with her brother. Next, Wade testified that he texted with Reale throughout the day, that he went to Reale‘s home to see if she was there, that he could not enter the home because it was locked, that he waited outside the home, and that he eventually saw a car drive to the house with Reale, K.R., and Sughrue inside. Additionally, Wade stated that he texted Reale after she got home, that she met him outside, and that they argued. Moreover, Wade testified that Sughrue opened the door and pushed him against a wall, that he pushed back, that they fell to the floor inside the home, that they wrestled, that Sughrue had something in his hand, that Sughrue hit
After Wade rested, a charge conference was convened. During the charge conference, Wade requested an instruction on the lesser included offense of assault, but the district court denied that request. At the end of the trial, Wade was convicted of the charged
offense, and the jury returned a separate finding specifying that Wade used or exhibited a deadly weapon during the offense.
Wade appeals his conviction.
DISCUSSION
On appeal, Wade argues that the evidence presented at trial is legally insufficient to support his conviction and that the district court erred by failing to include an instruction on the lesser included offense of assault.
Sufficiency of the Evidence
Under a legal-sufficiency standard of review, appellate courts view the evidence in the light most favorable to the verdict and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). When performing this review, an appellate court must bear in mind that it is the factfinder‘s duty to weigh the evidence, to resolve conflicts in the testimony, and to make “reasonable inferences from basic facts to ultimate facts.” Id.; see also
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that “direct and circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an actor” and “can be sufficient” on its own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref‘d). The evidence is
As set out above, Wade was convicted of aggravated assault for causing serious bodily injury to Sughrue by biting off a portion of Sughrue‘s ear. Under the Penal Code, a person commits assault if he “intentionally, knowingly, or recklessly causes bodily injury to another,”
“[T]here are no wounds that constitute ‘serious bodily injury’ per se.” Jackson v. State, 399 S.W.3d 285, 292 (Tex. App.—Waco 2013, no pet.) (quoting Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.—El Paso 1997, no pet.)). Instead, reviewing courts “must evaluate each case on its own facts to determine whether the evidence sufficed to permit the jury to reasonably conclude that the injury fell within the definition of ‘serious bodily injury.‘”
Reyes, 2017 WL 1130373, at *4. “[I]n assessing the sufficiency of the evidence to establish serious bodily injury, the question is the degree of risk of death that the injury caused, or the disfiguring or impairing quality of the injury, ‘as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment.‘” Stuhler v. State, 218 S.W.3d 706, 714 (Tex. Crim. App. 2007) (quoting Fancher v. State, 659 S.W.2d 836, 838 (Tex. Crim. App. 1983)). “Simply that an injury causes scarring is not sufficient, on its own, to establish serious permanent disfigurement.” Wright v. State, 494 S.W.3d 352, 362 n.5 (Tex. App.—Eastland 2015, pet. ref‘d). Rather, “[t]here must be evidence of some significant cosmetic deformity caused by the injury.” Hernandez, 946 S.W.2d at 113 (observing that “[d]isfigurement, like beauty, is in the eye of the beholder“); cf. Hatfield v. State, 377 S.W.2d 647, 649 (Tex. Crim. App. 1964) (determining that evidence that victim had cut lip, lost teeth, had stiff neck, and required hospitalization was “sufficient to sustain the jury‘s finding that serious bodily injury was inflicted upon him“).
When presenting his sufficiency challenge, Wade concedes that the evidence established that Sughrue sustained bodily injury on the night in question and that the evidence shows that he assaulted Sughrue, but he asserts that the evidence did not establish that he committed aggravated assault because the evidence did not show that Sughrue sustained serious bodily injury. As support for his assertion, Wade highlights that Sughrue “did not characterize any disfigurement” that he sustained in the assault “as serious.” Similarly, Wade contends that the medical records and the testimony from the paramedic who responded to the scene did not establish that “Sughrue sustained serious permanent disfigurement.” Further, Wade points to portions of his own testimony in which he denied causing serious bodily injury to Sughrue and in
which he explained
During the trial, EMS records for the night in question and medical records from the hospital where Sughrue was treated were admitted into evidence. The EMS records reflect that Sughrue sustained a “[t]raumatic injury,” that his left earlobe had been amputated, that he had pain in his left ear following an assault while he was sleeping, and that there was “quite a bit of blood” at the scene. Similarly, the hospital records describe the injury as a “large complex laceration to the left ear externally with loss of the ear lobe,” as “10 cm” long, as an amputation, as extending “into the cartilage,” and as requiring “11 sutures.” Cf. Reyes, 2017 WL 1130373, at *5 (noting that evidence regarding wounds and medical treatment performed “demonstrated more than just scarring“). The hospital records also say that Sughrue was assaulted and had dried blood on his chest; that he was experiencing pain at a level of seven that was constant, tender, and sharp; and that he continued to experience pain while sleeping before the sutures were removed.
In addition, photographs of Reale‘s bedroom and of Sughrue after the assault were admitted into evidence. The photos of Reale‘s bedroom show a significant amount of blood on the sheets and comforter. The photos of Sughrue show blood on his face and on other parts of his body and document that the earlobe was removed.
At trial, K.R. testified that she heard Sughrue scream during the assault in a way that she had “never heard anyone scream like . . . before.” Following K.R.‘s testimony, Sughrue explained that on the night in question he woke up when someone punched him in the face and that he felt pain on his left ear. When describing the injury, Sughrue explained that Wade pulled his ear away from his head after biting it and that he was covered in blood. Further, Sughrue
related that doctors were unable to reattach his earlobe. Moreover, Sughrue explained that he received eleven stitches, including stitches to reattach the bottom part of his ear to his head, and that he continued to experience pain at the time of the trial if his ear is directly touched. Sughrue also testified that he will be disfigured for life because of the injury to his ear. See id. at *5 (noting that location of injury on face was relevant consideration); Jackson, 399 S.W.3d at 292 (explaining that “[t]he person who sustained the injury at issue is qualified to express an opinion about the seriousness of that injury“). During his testimony, Sughrue stepped down from the witness stand for the jury to examine his ear.
When confronted with a similar issue and with similar evidence, one of our sister courts of appeals concluded that evidence pertaining to an injury caused by biting an earlobe was sufficient to establish serious bodily injury. See Sizemore v. State, 387 S.W.3d 824, 830 (Tex. App.—Amarillo 2012, pet. ref‘d). In reaching that conclusion, our sister court noted that photos of the victim‘s injury to her ear admitted during trial showed “a significant amount of blood in and around the area surrounding [her] ear” and showed “that a piece of her ear is missing” and that her ear is “misshapen.” Id. at 829. Next, the court highlighted the testimony from the victim in which she related that the defendant bit her ear, that the missing portion of her ear was never found, that she underwent a surgical procedure to attempt to repair the injury, and that she still experienced pain in her ear months later. Id. As with Sughrue, the victim “showed her ear to the jury, enabling it to assess the degree of disfigurement.” Id. Additionally, the court noted that the medical records described
width‘” that is “‘simply gone.‘” Finally, the court observed that the records revealed that the initial surgical procedure “did not result in a full reconstruction of the ear.” Id. at 830.2
Given our standard of review and in light of the similarity of the types of evidence, including medical records, describing Sughrue‘s injury and the victim‘s injury in Sizemore as well as the fact that both juries were given the opportunity to personally observe the injured ears, we similarly conclude that by applying “common sense, knowledge, and experience” and making reasonable inferences from the evidence presented, “the jury could have rationally concluded that” Sughrue “suffered serious permanent disfigurement.” See id. Accordingly, we conclude that the evidence is legally sufficient to establish that Wade caused Sughrue serious bodily injury. See
For these reasons, we overrule Wade‘s first issue on appeal.
Jury Charge
In his second issue on appeal, Wade contends that the district court erred by failing to include a lesser included-offense instruction. During the trial, Wade requested that the district court provide an instruction on assault because, according to Wade, his testimony was sufficient to warrant the instruction. After considering the parties’ arguments, the district court denied the request.
Appellate courts “use a two-step analysis to determine if a defendant is entitled to a lesser-offense instruction.” Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App. 2018). “The first step is to determine whether the requested instruction pertains to an offense that is a lesser-included offense of the charged offense, which is a matter of law.” Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App. 2016). “Under this first step of the test, an offense is a lesser-included offense if it is within the proof necessary to establish the offense charged.” Id. As a matter of law, assault is a lesser included offense of the charged offense of aggravated assault because “it differs from the charged offense only in the respect that a less serious injury . . . suffices to establish its commission.” See
To satisfy the second step, “there must be evidence from which a rational jury could find the defendant guilty of only the lesser offense.” Ritcherson, 568 S.W.3d at 671. “That requirement is met if there is (1) evidence that directly refutes or negates other evidence establishing
raises the issue, the trial court must include an instruction in the jury charge.” Ramirez v. State, 263 S.W.3d 40, 42 (Tex. App.—Houston [1st Dist.] 2006, pet. ref‘d).
During his testimony, Wade admitted that during an altercation with Sughrue, he bit Sughrue‘s ear hard enough to remove the earlobe and that Sughrue‘s ear was disfigured in the assault. But Wade denied more than once that his actions resulted in a serious bodily injury. Additionally, when describing the injury, Wade explained that if he saw Sughrue on the street, he would not notice any difference between his ears. See Isaac v. State, 167 S.W.3d 469, 475 (Tex. App.—Houston [14th Dist.] 2005, pet. ref‘d) (explaining that “a defendant‘s testimony alone is sufficient to raise the issue” of whether lesser included-offense instruction should be given).
In its brief, the State contends that the testimony offered by Wade was insufficient to raise the issue of the lesser included offense of assault or to negate the charged offense. Specifically, the State asserts that the testimony regarding the severity of the wound was a lay opinion, that a defendant may not provide an opinion regarding the severity of an injury that he allegedly caused, and that Wade was not qualified to provide an expert opinion about the seriousness of the wound. The State also argues that Wade‘s assessment of the injury as being something that he would not notice if he observed Sughrue and did not know him could not have entitled Wade to the lesser included offense instruction because the hypothetical is flawed. More precisely, the State notes that Wade knew Sughrue and knew that Sughrue had sustained the injury at issue.
We have not been pointed to any case law supporting the proposition that a defendant may not provide testimony regarding the severity of an injury or that a jury may not consider that testimony as evidence. Courts have determined that victims are qualified to express an opinion regarding the seriousness of their injury, see Jackson, 399 S.W.3d at 292, and we are
not persuaded that an alleged offender cannot provide similar testimony regarding an injury that he observes and admits that he directly caused by the use of his teeth. Similarly, we have been unable to find support for the proposition that testimony from a witness—the defendant or otherwise—that an injury is not a serious bodily injury cannot qualify as evidence sufficient to raise the need for a lesser offense instruction even though the witness is not a doctor or other qualified expert. Cf. id. (stating that “‘serious bodily injury’ may be established without a physician‘s testimony when the injury and its effects are obvious“). Moreover, we do not read Wade‘s testimony as narrowly as the State does and instead read the testimony as an expression regarding the visibility of the injury rather than a hypothetical expression of what his observations might be if he did not know Sughrue.
Wade also testified that Sughrue did not sustain a serious bodily injury in the assault, which provided more than a scintilla of evidence that Sughrue did not suffer a serious permanent disfigurement.3
For these reasons, we conclude that more than a scintilla of evidence was presented during trial that negated the greater offense of aggravated assault by causing serious bodily injury and raised the lesser offense of assault by causing bodily injury and that the district court erred by denying Wade‘s request for a lesser included offense instruction for assault. Cf. Bullock, 509 S.W.3d at 929-30 (determining that trial court erred by failing to include instruction on lesser included offense of attempted theft where jury could have determined that defendant was not guilty of theft of truck but was guilty of attempted theft by believing evidence that defendant was inside truck without consent with intent to steal it and by believing defendant‘s
testimony stating that his feet were not on the pedals, that he did not turn
If an appellate court determines that there is error present in a jury charge, it must then evaluate the harm caused by the error. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The amount of harm needed for a reversal depends on whether a complaint regarding “that error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref‘d). If the defendant made a timely objection, as in this case, reversal is required if there has been “some harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh‘g). “In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.” Id.
In this type of analysis, reviewing courts “consider: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors
present in the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). Although the standard is less stringent than the analysis performed when an objection is not made, the reviewing court must still “find that the defendant ‘suffered some actual, rather than merely theoretical, harm from the error.‘” Id. (quoting Warner v. State, 245 S.W.3d 458, 463 (Tex. Crim. App. 2008)).
Although the abstract portion of the jury charge included an instruction on simple assault as well as aggravated assault and defined the terms “bodily injury” and “serious bodily injury,” the application paragraph, as set out above, did not contain any instructions authorizing the jury to find Wade guilty of assault as opposed to aggravated assault. Courts have “routinely found” in circumstances where “a lesser included offense [instruction] . . . was requested and raised by the evidence” and where the failure to include that instruction “left the jury with the sole option either to convict the defendant of the greater offense or to acquit him” that “‘some’ harm” occurs from the failure to include the instruction. Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995); see also Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005) (explaining that “the harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer“); Ramirez, 263 S.W.3d at 43 (finding “some harm” where “the absence of the lesser included offense instruction left the jury
In its brief, the State contends that any error in the jury charge was harmless. As support, the State notes that the jury charge contained instructions on the “Special Issue” of whether Wade used a deadly weapon during the assault. Specifically, the instruction directed the
jury to consider the issue if it found Wade guilty of aggravated assault causing serious bodily injury; included definitions for the terms “[d]eadly weapon,” “[b]odily injury,” and “[s]erious bodily injury“; and asked the jury to specify whether it found beyond a reasonable doubt that he “used or exhibited a deadly weapon, namely, the defendant‘s teeth, during the commission of the felony offense of Aggravated Assault Causing Bodily Injury.” In light of the special-issue instructions, the State argues that the jury was free to find that he did not use a deadly weapon during the offense “and thereby inject an inference that they were harboring residual reasonable doubt” but instead chose to make the finding.
However, the special-issue definitions for serious bodily injury and bodily injury were the same as those included in the abstract portion of the jury charge. Moreover, the special-issue definition for “[d]eadly weapon” specified that a deadly weapon is “anything that in the manner of its use is capable of causing death or serious bodily injury,” and the special-issue instruction directed the jury to make a deadly-weapon finding if it found that Wade “used or exhibited a deadly weapon” during the offense. In light of the fact that the same definition for “serious bodily injury” formed the basis for the conviction and for the deadly-weapon finding, we do not agree with the State‘s argument that the deadly-weapon finding made by the jury in this case shows that there was no harm from the failure to provide the lesser included instruction. In fact, during its closing argument, the State told the jury twice that if it found Wade guilty of the charged offense, the deadly-weapon issue was “necessarily” true. Accordingly, we conclude that the first factor weighs in favor of some harm.
Turning to the arguments of counsel, we note that during the State‘s opening argument, it asserted that Sughrue now has a “permanent disfigurement . . . because [Wade] bit” off part of his ear, but the State did not assert that the injury was a serious permanent
disfigurement. During the first portion of its closing argument, the State again characterized the injury as a permanent disfigurement but asserted during the second portion that the injury was a serious permanent disfigurement. In his closing argument, Wade emphasized that the State‘s characterizations of the injury omitted the term “serious,” that the injury had to be a “serious” one to qualify as serious bodily injury, that none of the witnesses at trial described the injury as a “serious permanent disfigurement,” that Sughrue did not use the word serious to describe his own injury, and that none of the treating physicians were called to the stand and, accordingly, did not provide any expert testimony regarding the severity of the injury. In light of the preceding, we conclude that the second factor also weighs in favor of a finding of some harm.
Regarding the evidence presented at trial, we note that although the evidence was legally sufficient to support an inference that the injury qualified as serious permanent disfigurement, the severity of the injury was one of the primary contested issues. Additionally, as Wade correctly points out, no witnesses, including Sughrue, used the word “serious” when describing the injury, and he testified that
Turning to the fourth factor, we note that although Wade was ultimately placed on community supervision when he was sentenced, the jury assessed his punishment at five years’ imprisonment. That sentence is longer than the maximum sentence allowed for simple assault, see
suffered some harm after noting that sentence assessed exceeded “maximum punishment” available for lesser included offense).
In light of our resolution of the factors set out above, we conclude that Wade suffered some harm from the denial of his request for a jury instruction. Therefore, having found error and some harm from that error, we sustain Wade‘s second issue on appeal. See id. (concluding that defendant suffered some harm from denial of instruction “on the lesser included offense of simple assault“).
CONCLUSION
Having overruled Wade‘s first issue but having sustained his second issue, we reverse the district court‘s judgment of conviction and remand the cause for a new trial.
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Kelly
Reversed and Remanded
Filed: January 16, 2020
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