McCoy, Gary Jay

PD-0595-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/17/2015 5:57:33 PM

Accepted 6/18/2015 4:14:39 PM

June 18, 2015 ABEL ACOSTA

NO. PD-0595-15 CLERK

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

AUSTIN, TEXAS

GARY JAY MCCOY

PETITIONER,

V.

STATE OF TEXAS

RESPONDENT

PETITION FOR DISCRETIONARY REVIEW

ON PETITION FOR DISCRETIONARY REVIEW from the

ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS

CASE NO. 11-13-00099-CR

On appeal from the 161ST Judicial District of Ector County, Texas

Cause Number B-40,007

Honorable John W. Smith, Presiding

M. Michele Greene

State Bar No.00789966

2833 Wildwood Ave.

Odessa, Texas 79761

Tel: (432) 238-1255

Email: mmg@michelegreenelaw.com

Attorney for Petitioner

PETITIONER REQUESTS ORAL ARGUMENT

NO. PD-0595-15

IN THE

COURT OF CRIMINAL APPEALS

OF TEXAS

AUSTIN, TEXAS

GARY JAY MCCOY

PETITIONER,

V.

STATE OF TEXAS

RESPONDENT

PETITION FOR DISCRETIONARY REVIEW

ON PETITION FOR DISCRETIONARY REVIEW from the

ELEVENTH COURT OF APPEALS , EASTLAND, TEXAS

CASE NO. 11-13-000099-CR

On appeal from the 161ST Judicial District of Ector County, Texas

Cause Number B-40,007

Honorable John W. Smith, Presiding

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL

APPEALS OF TEXAS:

NOW COMES Gary Jay McCoy, Petitioner in this cause, by and through his

court-appointed appellate counsel, M. Michele Greene, and, pursuant to the

provisions of TEX. R. APP. P. 67 et seq., moves this Court to grant this petition for

discretionary review, and in support will show as follows:

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties, as well as the names, addresses,

and emails (if known), of all counsel.

Defendant/Appellant/Petitioner: Gary Jay McCoy

Complainant/Appellee/Respondent: State of Texas

Petitioner’s Counsel:

at Trial: Lawrence Barber, Jr.

P.O. Box 4229

Odessa, Texas 79760

Petitioner’s Counsel

on Appeal: M. Michele Greene

2833 Wildwood Ave.

Odessa, Texas 79761

mmg@michelegreenelaw.com

Respondent’s Counsel

at Trial: Dusty Gallivan and Shane Chriesman

Deputy District Attorneys

300 N. Grant Ave., Rm. 305

Odessa, Texas 79761

Respondent’s Counsel

on Appeal: Michael Bloch

Assistant District Attorney

300 N. Grant Ave. Rm. 305

Odessa, Texas 79761

MICHAEL.BLOCH@ectorcountytx.gov.

Trial Court: The Honorable John W. Smith, 161ST

District Court, Ector County, Texas

ii

Appellate Court: Justices Jim R. Wright, Mike Wilson,

and John M. Bailey, Court of Appeals,

Eleventh District of Texas.

iii

RECORD REFERENCES

The Clerk’s Record contains only one volume; therefore, references in this

petition to the Clerk’s Record are by volume and page number, indicated as “CR

1:__.” The Clerk’s Record contains the pleadings, orders, and correspondence filed

with (or sent to) the trial court and clerk that are pertinent to this appeal.

The Reporter’s Record contains nine volumes; therefore, references to the

Reporter’s Record in this petition are by volume and page number, indicated as “RR

__:__.” The Reporter’s Record includes the transcripts of the arraignment hearing

held on February 12, 2012, along with the pretrial hearings held on May 3, 2012,

February 7, 2013, and February 12, 2013. The Reporter’s Record also includes

transcripts of the jury trial held on February 12, 2013, and the bench trial as to

punishment on February 14, 2013.

Further, the Reporter’s Record includes all of the parties’ exhibits submitted

to the trial court and admitted into evidence during the jury trial. All such exhibits

are contained in Volume 9 of the Reporter’s Record. References to the parties’

exhibits are indicated as “RR 9:SX#__” or “RR 9:DX#__.”

References to the Eleventh Court of Appeals’ opinion issued April 16, 2015,

are by page number, indicated as “AO,__.”

iv

PARTY REFERENCES

Petitioner Gary Jay McCoy shall be referred to as “Petitioner.” Respondent the

State of Texas shall be referred to as “Respondent.” The Eleventh Court of Appeals

shall be referred to as “the Appellate Court.”

v

TABLE OF CONTENTS

PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RECORD REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

PARTY REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

STATEMENT OF PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . xii

GROUND FOR REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONCLUSION AND PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A- Appellate Opinion:

McCoy v. State, No. 11-13-00099-CR, 2015 TEX. APP. LEXIS

3781 (Tex. App.–Eastland, delivered April 16, 2015)

vi

INDEX OF AUTHORITIES

CASES

Guerra v. State, No. 05-14-00086-CR, No. 05-14-00087-CR;

2015 TEX. APP. LEXIS 5843 (Tex. App.–Dallas, June 10, 2015,

no pet. hist.) (not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . 6

Hernandez v. State, 946 S.W.2d 108 (Tex. App.–El Paso 1997, no pet.) . . . . . 3,5

Jackson v. State, 399 SW.3d 285 (Tex. App.–Waco 2013, no pet.) . . . . . . . . . . 2-3

Landrian v. State, 268 SW.3d 532 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . 2

Lenzy v. State, 689 S.W.2d 305 (Tex. App.–Amarillo 1985, no pet) . . . . . . . . . . . 4

McCoy v. State, No. 11-13-00099-CR, 2015 TEX. APP. LEXIS 3781

(Tex. App.–Eastland, delivered April 16, 2015) . . . . . . . . . . . . . . . . . . . . xii

Moore v. State, 739 S.W.2d 347 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . 2,6

Moore v. State, 739 S.W.2d 347 (Tex. Crim. App. 1987)

(Clinton, concurring) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Sizemore v. State, 387 S.W.3d 824 (Tex. App.–Amarillo 2012, pet ref’d) . . . 2-3,5

RULES

TEX. R. APP. P. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATUTES

TEX. PEN. CODE ANN. § 1.07(a)(8) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. PEN. CODE ANN. § 1.07(a)(46) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. PEN. CODE ANN. § 22.01(a)(1) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. PEN. CODE ANN. § 22.02(a)(1) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . 1,7

vii

TEX. PEN. CODE ANN. §§ 12.33(a-b), 12.42(d), and 22.02(b) (LEXIS 2015) . . . . xii

TEX. PEN. CODE ANN. §§ 22.01(a)(1), (b)(2)(B), 22.02(a)(1),

and 22.02(b) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x,xii,3

viii

STATEMENT REGARDING ORAL ARGUMENT

Petitioner has raised an important question of first impression in this Court and

believes that oral argument would help clarify the issue presented in this Petition for

Discretionary Review. Therefore, Petitioner respectfully requests oral argument

pursuant to TEX. R. APP. P. 39.

ix

STATEMENT OF THE CASE

Petitioner was initially indicted on Count One of aggravated assault—a second

degree felony, and Count Two of assault by strangulation---a third degree felony

under TEX. PEN. CODE ANN. §§ 22.01(a)(1), (b)(2)(B), 22.02(a)(1), and 22.02(b)

(LEXIS 2015). (CR 1:5). At the conclusion of the guilt/innocence phase of the trial,

Petitioner’s trial counsel failed to request that the jury be instructed on the lesser-

included offense of simple assault. The jury ultimately returned a “guilty” verdict as

to Count One (aggravated assault) and a “Not Guilty” verdict as to Count Two

(assault by strangulation). (CR 1:61,68; RR 7:103).

Petitioner elected to have the trial court assess his punishment. (CR 1:69; RR

5:4-5; 7:105; 8:105). The trial court sentenced Petitioner solely as to Count One.

(RR 8:8).

On appeal, Petitioner raised six separate issues, including whether the evidence

was sufficient to establish beyond a reasonable doubt that he caused “serious bodily

injury” and whether his trial counsel provided ineffective assistance of counsel in

failing to request the lesser included jury instruction of simple assault. The Appellate

Court erroneously ruled that the loss of two teeth, standing alone, constitutes per se

“serious bodily injury.” (AO,4,6). Based on this erroneous rationale, the Appellate

Court wrongly held that the evidence in this case was sufficient to sustain Petitioner’s

x

conviction of aggravated assault. (AO,4). The Appellate Court also erroneously held

and that as Petitioner was not entitled to an instruction on the lesser included offense

of simple assault, his trial counsel’s performance did not constitute ineffective

assistance of counsel. (AO,6). Thus, the Appellate Court erroneously affirmed the

jury’s guilty verdict and the trial court’s thirty-five year prison sentence in this cause.

(AO,11).

xi

STATEMENT OF PROCEDURAL HISTORY

Petitioner was initially indicted on Count One of aggravated assault—a second

degree felony, and Count Two of assault by strangulation---a third degree felony

under TEX. PEN. CODE ANN. §§ 22.01(a)(1), (b)(2)(B), 22.02(a)(1), and 22.02(b)

(LEXIS 2015). (CR 1:5).

On February 12, 2013, the Honorable John W. Smith of the 161st Judicial

District Court of Ector County, Texas held a jury trial in this cause. (RR 6:1). At the

conclusion of the guilt/innocence phase of the trial, the jury returned a “Guilty”

verdict as to Count One of aggravated assault and a “Not Guilty” verdict as to Count

Two of assault by strangulation. (CR 1:61,68; RR 7:103). Petitioner elected to go

to the trial court for punishment. (CR 1:69; RR 5:4-5; 7:105; 8:105).

After implicitly finding the enhancement paragraphs to be true, the trial court

entered a Judgement of Conviction by Jury as to Count One, sentenced Petitioner to

thirty-five years in the Institutional Division of the Texas Department of Criminal

Justice, and assessed a $10,000.00 fine pursuant to TEX. PEN. CODE ANN. §§ 12.33(a-

b), 12.42(d), and 22.02(b) (LEXIS 2015). (CR 1:71-73; RR 8:15). The trial court also

entered a Judgment of Acquittal by Jury as to Count Two. (CR 1:73). On or about

March 13, 2013,

xii

Petitioner timely filed his Notice of Appeal. (CR 1:77-78). Petitioner

presented six issues in his appellate brief.

On April 16, 2015, the Appellate Court affirmed Petitioner’s conviction of

aggravated assault and his thirty-five year prison sentence. (AO, 11). McCoy v.

State, No. 11-13-00099-CR, 2015 TEX. APP. LEXIS 3781 (Tex. App.–Eastland,

delivered April 16, 2015). The Honorable Justices Justice Jim R. Wright, Mike

Wilson, and John M. Bailey participated in the decision of the Appellate Court, with

Chief Justice Jim R. Wright authoring the opinion of the court. (Id.).

Petitioner did not file a Motion for Rehearing with the Appellate Court.

This Petition for Discretionary Review is due to be filed on June 17, 2015;

therefore, it is timely filed.

xiii

GROUND PRESENTED FOR REVIEW

Ground No. 1:

An important question of state law is presented that has not been, but

should be, settled by this Court as to whether the loss of a tooth,

standing alone, constitutes per se “serious bodily injury” under TEX.

PEN. CODE ANN. § 22.01(a)(1) (LEXIS 2015).

xiv

ARGUMENT

Ground for Review Restated:

Ground No. 1: An important question of state law is presented that has not

been, but should be, settled by this Court as to whether the

loss of a tooth, standing alone, constitutes per se “serious

bodily injury” under TEX. PEN. CODE ANN. § 22.01(a)(1)

(LEXIS 2015).

Section 22.01(a) of the TEXAS PENAL CODE provides in pertinent part that a

person commits an offense if he “intentionally, knowingly, or recklessly causes

bodily injury to another. . .” TEX. PEN. CODE ANN. § 22.01(a)(1) (LEXIS 2015).

Section 22.02(a) of the TEXAS PENAL CODE, elevates simple assault to an aggravated

offense when the person “causes serious bodily injury to another . . . ” TEX. PEN.

CODE ANN. § 22.02(a)(1) (LEXIS 2015).

“Bodily injury” is defined as “physical pain, illness, or any impairment of

physical condition.” TEX. PEN. CODE ANN. § 1.07(a)(8) (LEXIS 2015). “Serious

bodily injury” is defined under the TEXAS PENAL CODE as “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.” TEX.

PEN. CODE ANN. § 1.07(a)(46) (LEXIS 2015). Thus, “serious bodily injury” is injury

plus one or more of the following effects:

1

1. a substantial risk of death;

2. death;

3. serious permanent disfigurement;

4. protracted loss of the function of any bodily member;

5. protracted impairment of the function of any bodily member;

6. protracted loss of the function of any bodily organ; and

7. protracted impairment of the function of any bodily organ.

Moore v. State, 739 S.W.2d 347, 355 (Tex. Crim. App. 1987) (Clinton, concurring).

The type of injury under “bodily injury” and “serious bodily injury” does not

vary, only the degree of the injury. Landrian v. State, 268 SW.3d 532, 539 (Tex.

Crim. App. 2008); Moore, 739 S.W.2d at 349 (noting difference between “serious

bodily injury” and “bodily injury” is one of degree). Though frequently only a matter

of degree, there is a distinction or difference between “serious bodily injury and

serious bodily injury.” Id.

Consequently, the determination that an injury qualifies as “serious bodily

injury” must be made on a case-by-case basis. Jackson v. State, 399 SW.3d 285, 292

(Tex. App.–Waco 2013, no pet.); also see Moore, 739 S.W.2d at 349 (holding

distinction between “serious bodily injury” and “bodily injury” must be made on an

ad hoc basis).

Furthermore, Texas case law is clear there are no wounds that constitute

“serious bodily injury” per se. Sizemore v. State, 387 S.W.3d 824, 828 (Tex.

App.–Amarillo 2012, pet ref’d) (holding no wounds constitute “serous bodily injury”

2

per se); Hernandez v. State, 946 S.W.2d 108, 111 (Tex. App.–El Paso 1997, no pet.)

(holding there are no wounds that are per se “serious bodily injury).

Instead, each case should be evaluated on its own facts to determine whether

the evidence was sufficient to permit the factfinder to conclude that the injury fell

within the definition of “serious bodily injury.” Jackson, 399 S.W.3d at 292;

Sizemore, 387 S.W.3d at 828.

In the case at bar, Petitioner was charged with one count of aggravated

assault—a second degree felony, and one count of assault by strangulation---a third

degree felony pursuant to TEX. PEN. CODE ANN. §§ 22.01(a)(1), (b)(2)(B),

22.02(a)(1), and 22.02(b) (LEXIS 2015). (CR 1:5). The State alleged that both

offense were committed against Rosemary Wilson, (“Wilson”). (Id.).

Undisputedly, the jury found that Petitioner was “not guilty” of strangling or

choking Wilson and acquitted Petitioner of this charge. (CR 1:61,68; RR 7:103).

From its opinion, it appears as if the Appellate Court disagreed with the jury’s

acquittal of Petitioner on this charge, as the Appellate Court noted at least three

different times in its opinion that Petitioner was “choking” Wilson during the alleged

assault. (AO,3).

Wilson testified that as a rsult of Petitioner’s actions during their altercation,,

two of her teeth “popped out,” causing her mouth to bleed. (RR 1:7:14,32-34).

3

Petitioner introduced no evidence to the contrary. However, there was also no other

evidence introduced at trial by the State to establish the degree of Wilson’s injury.

For example, there was no evidence of any trip to the hospital by Wilson as a result

of her injury, no evidence of any painful effects as a result of the injury, or any

negative effects on Wilson’s ability to eat, drink, or speak as a result of her injury.

medical and/or dental requirements as a result of the injury. Rather, the State’s entire

aggravated assault case hinged on the loss of two teeth---an injury for which

Petitioner received thirty-five years in prison. (CR 1:71-72; RR 8:15).

Citing Lenzy v. State, 689 S.W.2d 305 (Tex. App.–Amarillo 1985, no pet), the

Appellate Court held that because teeth are separate, definable parts of the body, they

constitute a “bodily member or organ.” (AO,4). The Appellate Court reasoned that

the loss of two teeth, notwithstanding any other injury, constituted the loss of “two

bodily member or organs.” (Id.). Based on this reasoning, the Appellate Court held

that the loss of two teeth is per se “serious bodily injury.” (Id.).

Later in its opinion, the Appellate Court again ruled that the loss of a tooth is

a “serious bodily injury.” In analyzing Petitioner’s ineffective assistance of claim, the

Appellate Court acknowledged that simple assault can be a lesser included offense

of aggravated assault. (AO,5-6). The Appellate Court correctly determined that the

assault in this case is a lesser included offense of aggravated assault. (AO,6).

4

Nevertheless, the Appellate Court found that Petitioner was not entitled to the

lesser included instruction of simple assault. (AO,5). The Appellate Court held that

because the evidence introduced at trial established Petitioner knocked out two of

Wilson’s teeth, such injury caused her “serious bodily injury.” (Id.). As such, the

Appellate Court specifically found “no reasonable view of the evidence in this case

. . . would permit a jury to rationally find that, if the defendant [Petitioner] was guilty,

he was guilty only of the lesser offense of assault.” (Id.).

Essentially, the Appellate Court reasoned that no jury could ever rationally find

that losing a tooth constituted only “bodily injury.” Accordingly, the Appellate Court

implicitly held that the loss of a tooth constitutes per se “serious bodily injury.”

Based on this faulty reasoning, the Appellate Court wrongfully determined Petitioner

was not entitled to the lesser included instruction of simple assault and denied

Petitioner’s ineffective assistance of counsel claim. (Id.).

The Appellate Court cited no case law or statutory authority directly on point

to support its holding that the loss of two teeth constitutes per se “bodily injury.”

Such lack of authority is not surprising. Texas appellate courts have consistently held

that there are no injuries with constitute per se “serious bodily injury.” See Sizemore,

387 S.W.3d at 828; Hernandez, 946 S.W.2d at 111. Therefore, the Appellate Court’s

5

holding in this case is contrary to established Texas case law handed down from its

sister appellate courts.

The practical effect of the Appellate Court’s erroneous holding in this case is

that a factfinder will never be required to determine the degree of injury in an assault

case in which the State alleges the victim lost a tooth as a result of the defendant’s

actions. To the contrary, such injury will always constitute a “serious bodily injury,”

thereby barring the factfinder from making this determination. However, this

outcome is in direct contradiction to this Court’s directive that the degree of injury

between “bodily injury” and “serious bodily injury” should be determined on case-by-

case basis. See Moore, 739 S.W.2d at 349.

Furthermore, the Appellate Court’s erroneous ruling in this case will have, and

already has had, a negative impact on future criminal cases. For example, although

the Appellate Court only handed down its ruling in this case approximately two

months ago, the Dallas Court of Appeals has already cited the Appellate Court’s

opinion in support its own finding that a loss of a tooth constitutes per se “serious

bodily injury.” See Guerra v. State, No. 05-14-00086-CR, No. 05-14-00087-CR;

2015 TEX. APP. LEXIS 5843, *14 (Tex. App.–Dallas, June 10, 2015, no pet. hist.) (not

designated for publication). Clearly, the Appellate Court’s erroneous ruling in this

case will have broad and quick impact on Texas criminal jurisprudence.

6

Accordingly, this Court should grant this Petition for Discretionary Review to

(1) answer a question of first impression; and (2) establish much needed precedential

authority upon which both the State and defendants may rely in the future when a

“serious bodily injury” is alleged involving the loss of teeth pursuant to TEX. PEN.

CODE § 22.02(a)(1) (LEXIS 2015).

7

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Petitioner Gary Jay McCoy

respectfully prays that this Court grant his Petition for Discretionary Review and,

after full briefing on the merits, the Court issue an opinion 1) reversing the Appellate

Court’s ruling affirming Petitioner’s second degree felony conviction for aggravated

assault and 2) remanding this case for a new trial.

Petitioner also prays that this Court grant him such other and further relief to

which he may be entitled.

Respectfully submitted,

M. MICHELE GREENE

Attorney at Law

2833 Wildwood Ave.

Odessa, Texas 79761

Tel: (432) 238-1255

Email: mmg@michelegreenelaw.com

By: /s/ M. Michele Greene

M. Michele Greene

State Bar No.00789966

Appellate Counsel for Petitioner

Gary Jay M cCoy

8

CERTIFICATE OF COMPLIANCE

In accordance with Rules 9.4(e) and (i) of the TEXAS RULES OF APPELLATE

PROCEDURE, the undersigned attorney of record certifies that the Petition for

Discretionary Review contains 14-point typeface for the body of the petition and

contains 1,526 words, excluding those words identified as not being counted in Rule

9.4(i)(1) and was prepared on Word Perfect Version 9.

/s/ M. Michele Greene

M. Michele Greene

CERTIFICATE OF SERVICE

I certify that a copy of the Petition for Discretionary Review was served

electronically on this the 17h day of June, 2015, to the following party and that the

electronic transmission was reported as complete:

Michael Bloch

Ector County District Attorney’s Office

Ector County Courthouse

300 N. Grant Ave. Rm. 305

Odessa, Texas 79761

MICHAEL.BLOCH@ectorcountytx.gov.

Attorney for Respondent

/s/ M. Michele Greene

M. Michele Greene

9

APPENDIX

10

APPENDIX A

Opinion filed April 16, 2015

In The

Eleventh Court of Appeals

__________

No. 11-13-00099-CR

__________

GARY JAY MCCOY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-40,007

MEMORANDUM OPINION

The grand jury indicted Gary Jay McCoy of one count of aggravated assault

and one count of assault by strangulation. The jury convicted Appellant of

aggravated assault as alleged in Count One of the indictment and found Appellant

not guilty of assault by strangulation as alleged in Count Two of the indictment. See

TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). After implicitly finding the

enhancement paragraphs true, the trial court assessed Appellant’s punishment at

confinement for a term of thirty-five years and a fine of $10,000. The trial court

sentenced Appellant accordingly as to Count One and entered a judgment of

acquittal as to Count Two. Appellant raises six issues on appeal. We affirm.

In his first issue, Appellant claims that the trial court erred when it denied his

motion for directed verdict. Appellant challenges the sufficiency of the evidence to

support his conviction in his second issue. Because we treat a challenge to the trial

court’s denial of a motion for directed verdict as a challenge to the sufficiency of the

evidence, we will review Appellant’s first and second issues together. See

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). We review the

sufficiency of the evidence under the standard of review set forth in Jackson v.

Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.

ref’d). Under the Jackson standard, we examine all of the evidence in the light most

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

reasonable inferences from it, any rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

Appellant contends that the evidence was insufficient to support his

conviction because the victim did not suffer “serious bodily injury” but suffered only

“bodily injury.” A person commits the offense of assault if he “intentionally,

knowingly, or recklessly causes bodily injury to another.” PENAL § 22.01(a)(1)

(West Supp. 2014). If a person “causes serious bodily injury to another,” the person

commits aggravated assault. Id. § 22.02(a)(1). “Bodily injury” is defined as

“physical pain, illness, or any impairment of physical condition.” Id. § 1.07(a)(8).

“Serious bodily injury” is defined as “bodily injury that creates a substantial risk of

death or that causes death, serious permanent disfigurement, or protracted loss or

2

impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46).

Appellant argues that the victim’s loss of two teeth did not constitute serious bodily

injury. We disagree.

Rosemary Wilson, Appellant’s ex-girlfriend, is the victim in this case. Wilson

testified that she tried to break up with Appellant and told him that he needed to

leave or that she would leave; they were living together at the time. When Wilson

tried to walk out the door, Appellant grabbed her around the neck, pulled her back,

threw her on the couch, and started choking her. He called her a “whore” and spit

in her face. Eventually, he stopped choking her, and she went to their bedroom.

Appellant followed her into the bedroom and yelled at her about needing money.

When she gave him only $7, he threw her down on the bed, pinned her down, started

choking her again, and hit her in the face with his knee. He had his knee on her face

while he held her down; he applied so much pressure to her face with his knee that

he caused two of her teeth to pop out. Her mouth was bleeding “[p]retty bad.”

Wilson testified that she could not call the police that night because Appellant cut

the phone lines and took her cell phone. She was able to call the police the next

morning when Appellant left. Appellant was arrested when he returned.

Caley Frederick, a police officer with the Odessa Police Department, testified

that she was the first one to arrive at the scene. Wilson told Officer Frederick that

two of her teeth had been knocked out. Officer Frederick observed that two of

Wilson’s teeth were missing, that her mouth was swollen, and that she had some

blood on her shirt. Officer Michael McClendon assisted Officer Frederick and

testified that Wilson was missing a tooth from her top gum and a tooth from her

bottom gum and that she was bleeding from both of those areas. He also noticed

that she had bloodstains on her shirt and that there were blood droplets on the wall,

sheets, bedspread, and mattress.

3

A person suffers serious bodily injury if the person has a “protracted loss . . .

of any bodily member or organ.” Id. Teeth are separate, definable parts of the body

and, as such, constitute a “bodily member or organ.” Lenzy v. State, 689 S.W.2d

305, 310 (Tex. App.—Amarillo 1985, no pet.); see also Hatfield v. State, 377 S.W.2d

647, 649 (Tex. Crim. App. 1964) (holding that evidence of injured party’s cut lip,

loss of some teeth, hospitalization, and a stiff neck was sufficient to sustain jury’s

finding that victim suffered serious bodily injury). Appellant points out that the State

did not present any medical testimony to establish the severity and extent of

Wilson’s dental injuries, that the State did not introduce any photographs of

Wilson’s injuries, and that Wilson did not testify as to how the missing teeth caused

her problems or pain. However, there is no dispute that Appellant caused Wilson to

lose two teeth and, therefore, lose two bodily members or organs. We have reviewed

the evidence in the light most favorable to the verdict, and we hold that a rational

trier of fact could have found beyond a reasonable doubt that Wilson suffered serious

bodily injury. We overrule Appellant’s first and second issues.

In his third issue, Appellant argues that he was denied effective assistance of

counsel because his trial counsel failed to request a jury instruction on the lesser

included offense of assault. In order to determine whether Appellant’s trial counsel

rendered ineffective assistance at trial, we must first determine whether he has

shown that his counsel’s representation fell below an objective standard of

reasonableness and, if so, then determine whether there is a reasonable probability

that the result would have been different but for his counsel’s errors. Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 772

(Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim.

App. 1986). We must indulge a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance, and Appellant must

overcome the presumption that, under the circumstances, the challenged action could

4

be considered trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d

707, 712 (Tex. Crim. App. 2000). Where the record is silent, we cannot speculate

on trial counsel’s strategy. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.

1999). Thus, an allegation of ineffective assistance of counsel must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. Generally, the record on direct appeal will not be sufficient to

show that trial counsel’s performance was so lacking as to overcome the

presumption of reasonable conduct. Id. at 813–14.

Here, Appellant has not shown that his counsel’s representation fell below an

objective standard of reasonableness because, even if counsel had requested a lesser

included instruction in the jury charge, Appellant was not entitled to such an

instruction. We perform a two-step analysis to determine whether a defendant is

entitled to a lesser included offense instruction. Hall v. State, 225 S.W.3d 524, 528,

535 (Tex. Crim. App. 2007). First, we look to whether the offense is a lesser

included offense of the charged offense, and second, we look to whether there was

some evidence adduced at trial that would permit the jury to rationally find that, if

the defendant was guilty, he was guilty only of the lesser included offense. Id. at

535–36. The lesser included offense must be “a valid, rational alternative to the

charged offense.” Id. at 536 (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex.

Crim. App. 1999)) (internal quotation marks omitted).

An offense may be a lesser included offense if the lesser offense “differs from

the offense charged only in the respect that a less serious injury or risk of injury to

the same person, property, or public interest suffices to establish its commission.”

TEX. CODE CRIM. PROC. ANN. art. 37.09(2) (West 2006). Assault falls into this

category because it requires proof of a less serious injury than does aggravated

assault—bodily injury compared to serious bodily injury. Compare PENAL

§ 22.01(a)(1) (assault), with PENAL § 22.02(a)(1) (aggravated assault). The conduct

5

constituting the assault must be the same as the conduct alleged for the aggravated

assault in order for assault to be a lesser included offense. Irving v. State, 176

S.W.3d 842, 845–46 (Tex. Crim. App. 2005). Here, the conduct is the same—

Appellant knocked out two of Wilson’s teeth by hitting Wilson in the mouth with

his knee. Therefore, the assault here is a lesser included offense of aggravated

assault. However, there is no reasonable view of the evidence in this case that would

permit a jury to rationally find that, if the defendant was guilty, he was guilty only

of the lesser offense of assault. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim.

App. 2001) (holding that a reasonable jury could not have found the defendant guilty

of only misdemeanor assault because it was unquestionable that the victim suffered

serious bodily injury). The evidence was undisputed that two of Wilson’s teeth were

knocked out causing her to suffer serious bodily injury; therefore, there is not “some

evidence” that Wilson suffered only bodily injury. See id. at 589.

Appellant was not entitled to an instruction on the lesser included offense of

assault. Because defense counsel’s request for such an instruction would have been

futile, defense counsel’s performance was not deficient. See Kinnamon v. State, 791

S.W.2d 84, 97 (Tex. Crim. App. 1990) (holding that failure to request an instruction

on a lesser included offense is not deficient performance where the evidence does

not authorize the instruction), overruled on other grounds by Cook v. State, 884

S.W.2d 485, 491 (Tex. Crim. App. 1994). Furthermore, the record is silent as to

defense counsel’s reasoning for not requesting the lesser included instruction. We

agree with the State’s contention that “it was possible that defense counsel was

pursuing an all-or-nothing trial strategy.” Appellant has not shown that his counsel’s

representation fell below an objective standard of reasonableness. See Strickland,

466 U.S. at 687. We overrule Appellant’s third issue.

Appellant argues in his fourth issue that the trial court erred when it overruled

Appellant’s objection to the State’s late notice of enhancement and sentenced him

6

under the habitual offender statute. Appellant also argues that the late notice violated

his right to due process. In his fifth issue, Appellant asserts that the trial court erred

when it denied his motion for new trial on this same ground. The record shows that

the State did not give notice that it was seeking to enhance Appellant’s punishment

until the afternoon of the last day of the guilt/innocence phase of the trial. The jury

reached the guilty verdict that same day, a Tuesday evening, and the trial court set

the punishment phase to begin on that Thursday morning. The prosecutor informed

the trial court that defense counsel had indicated that he had some issues with the

late filing. The prosecutor further told the trial court that “[t]he State has no

objections if he needs more time to prepare for that enhancement.” Defense counsel

responded that he could be ready by Thursday to respond to the State’s late filing,

that he did not believe it was appropriate for the State to file the enhancement

allegations after the trial had already started, and that he believed Appellant was

entitled to “way more notice than that.” The trial court said that it would take a look

at the issue. When the punishment phase commenced, Appellant’s trial counsel

represented that he and Appellant had not seen the pen packets regarding the alleged

prior convictions. The trial court asked defense counsel and Appellant if they

wanted some more time to look into the enhancement allegations and if they wanted

to postpone the punishment hearing for a week or two. Appellant declined the trial

court’s offer to continue the punishment phase and said that he was “aware of them.”

Under a due process analysis, the issue is whether a defendant “received

sufficient notice of the enhancements so that he had an opportunity to prepare a

defense to them.” Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).

“[W]hen a defendant has no defense to the enhancement allegation and has not

suggested the need for a continuance in order to prepare one, notice given at the

beginning of the punishment phase satisfies” due process. Villescas v. State, 189

S.W.3d 290, 294 (Tex. Crim. App. 2006). Appellant claims that he had a viable

7

defense to one of the two enhancement allegations and that he did not have time to

prepare such defense. However, the trial court offered Appellant and his defense

counsel more time to prepare, but Appellant refused the continuance. By refusing

the continuance, Appellant waived his objection to the State’s late notice of

enhancement. Appellant’s fourth and fifth issues are overruled.

In his sixth and final issue, Appellant contends that, under Section 12.42(d)

of the Texas Penal Code, the trial court illegally sentenced him to a term of thirty-

five years in prison when the trial court failed to find as true one of the State’s

enhancement allegations. As to that same enhancement paragraph, Appellant also

contends that the evidence was insufficient to prove beyond a reasonable doubt that

the enhancement was true. At the conclusion of the punishment phase, the trial court

did not expressly state that it found the enhancement paragraphs to be true, nor does

the judgment indicate that the trial court found the enhancement paragraphs to be

true.1 The trial court did, however, inform Appellant that the minimum punishment

was twenty-five years and that the maximum punishment was life. “Although it is

preferred that trial courts read the enhancement paragraphs orally and find them to

be true or not true on the record, a trial court does not err by not doing so.” Seeker v.

State, 186 S.W.3d 36, 39 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). “A trial

court makes an implied finding of true to an enhancement allegation when the record

establishes the truth of that allegation.” Torres v. State, 391 S.W.3d 179, 183 (Tex.

App.—Houston [1st Dist.] 2012, pet. ref’d); see also PENAL § 12.42(d) (“[I]f it is

shown on the trial of a felony offense . . . that the defendant has previously been

finally convicted of two felony offenses, . . . the defendant shall be punished by

1

The trial court did state that the evidence showed that Appellant had two prior convictions;

however, the trial court referenced a 1987 burglary-of-a-habitation case and a 1987 possession-of-

marihuana case. The 1987 burglary-of-a-habitation case was not the burglary conviction that the State

alleged in its first enhancement paragraph. The burglary conviction that the State alleged in its first

enhancement paragraph was a 1986 burglary-of-a-building case.

8

imprisonment . . . for life, or for any term of not more than 99 years or less than 25

years.” (emphasis added)).

In order for a defendant’s punishment to be enhanced under Section 12.42(d),

the State must prove beyond a reasonable doubt that the defendant has had two prior

felony convictions and that the first prior conviction became final before the

defendant committed the second prior offense. Jordan v. State, 256 S.W.3d 286,

290–91 (Tex. Crim. App. 2008). The State must also show that the second prior

conviction became final before the defendant committed the offense on which the

trial court is currently assessing punishment. Id.

Here, the State alleged that Appellant had been previously convicted of

burglary of a building on June 26, 1986, and of possession of marihuana in an

amount of less than five pounds but more than four ounces on July 15, 1987. The

State further alleged that Appellant was convicted of the 1986 burglary charge in

Cause No. 81-114-K in the 26th District Court of Williamson County and that

Appellant was convicted of the 1987 possession charge in Cause No. B-18,711 in

the 161st District Court of Ector County. During the punishment phase, the State

offered, and the trial court admitted, certified judgments of conviction as to each of

the enhancement allegations. State’s Exhibit No. Two shows that Appellant was

convicted of burglary of a building on August 13, 1981. The judgment of conviction

contains the same cause number, court, and county as alleged in the first

enhancement paragraph. The judgment also reflects that punishment was assessed

at six years but that the court suspended his sentence and placed him on probation.

The State filed a motion to revoke on October 25, 1983, and the trial court revoked

his probation on June 26, 1986. Appellant argues that the evidence was insufficient

to show that he was convicted of a 1986 burglary because the judgment of conviction

shows that he was convicted in 1981. We disagree. Although Appellant was

convicted in 1981 of the burglary-of-a-building charge, his conviction did not

9

become final for enhancement purposes until 1986 when the trial court revoked his

probation and sentenced him to confinement for a term of three years. See Ex parte

Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992) (“[A] probated sentence is

not a final conviction for enhancement purposes unless it is revoked.”); Cromeans v.

State, 268 S.W.2d 133, 135 (Tex. Crim. App. 1954) (“A conviction in which the

sentence is suspended is not such a final conviction as will support an enhancement

of punishment, unless the suspension has been revoked.”). Therefore, the evidence

showed that Appellant was convicted of burglary in Williamson County and that his

conviction became final on June 26, 1986. Appellant did not offer any contrary

evidence during the punishment phase. The record supports a finding of true as to

the prior conviction alleged in the first enhancement paragraph.

Appellant does not challenge the sufficiency of the evidence to support a

finding of true as to the prior conviction for possession of marihuana as alleged in

the second enhancement paragraph. Moreover, the punishment evidence shows that

a judgment of conviction for possession of marihuana in an amount of five pounds

or less but more than four ounces was entered against Appellant on July 2, 1987, and

that the trial court sentenced Appellant on July 15, 1987. The judgment also reflects

the same cause number, court, and county as that alleged in the second enhancement

paragraph. In addition, the judgment reflects that the offense occurred on

February 16, 1987, which is after the date the burglary-of-a-building conviction

became final.

We hold that the State met its burden of proof to show that Appellant’s

punishment should be enhanced under Section 12.42(d), and we further hold that the

trial court did not illegally sentence Appellant to confinement for a term of thirty-

five years. Appellant’s punishment falls within the range provided for by

Section 12.42(d). Appellant’s sixth issue is overruled.

10

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

April 16, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

11