Full Opinion (html_with_citations)

Opinion filed December 21, 2023




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-21-00280-CR
                                  __________

                 DOROTHY JEAN MORENO, Appellant
                                         V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 350th District Court
                            Taylor County, Texas
                        Trial Court Cause No. 13287-D


                     MEMORANDUM OPINION
      The jury convicted Appellant, Dorothy Jean Moreno, of aggravated assault
with a deadly weapon, a second-degree felony, and assessed her punishment at
confinement for a term of three years in the Institutional Division of the Texas
Department of Criminal Justice. See TEX. PENAL CODE ANN. § 22.02(a), (b) (West
Supp. 2023). In her sole issue on appeal, Appellant challenges the sufficiency of the
evidence supporting her conviction. Appellant requests that we render an acquittal
of the offense of aggravated assault and convict her of the lesser-included offense of
misdemeanor assault. We modify and affirm.
                                  Background Facts
      Sarah Wallis arrived at Guitars and Cadillacs, a bar in Abilene, around 12:30
a.m., “in time for basically last call.” Wallis had finished her shift at work and joined
Brienna Thorndyke, Raven Contreras, and Ariana Munoz for a drink. Wallis noticed
that Derian Villeda was also at Guitars and Cadillacs. Derian shares a child with
Ariana’s sister, Alexis Munoz. Alexis and Derian had recently separated and were
involved in a custody dispute at the time of the incident.
      Wallis recalled feeling uncomfortable because Derian’s family arrived at the
bar and “wouldn’t stop staring and just, like, making it clear that they had a problem
with us.” Josephine “Angel” Villeda, Derian’s mother, and Appellant, Derian’s
aunt, attempted to speak with Ariana throughout the night. Ariana “made it clear”
that she did not want to talk to Josephine or Appellant. Wallis assumed that the
confrontations were related to issues with Alexis.
      Later that night, Josephine walked up to Ariana, grabbed her by the arms, and
began shaking her while trying to talk to her. Wallis testified that she intervened
and placed her arms between the two while asking Josephine to let go of Ariana.
Appellant grabbed a drinking glass out of Wallis’s hand. Wallis attempted to leave
the confrontation and told Appellant she could keep the drinking glass. When Wallis
turned to leave, Josephine grabbed Wallis’s ponytail, pulled her to the ground, and
sat on her. Wallis testified that Josephine and Appellant began hitting her while she
was “pinned” to the ground underneath Josephine.
      Wallis testified that Appellant did not set the drinking glass down. Wallis said
that she used her hands to defend herself and that, although her eyes were closed,
she recalled being “struck by a very blunt force object that felt exactly like a glass
in my eye.” Wallis was immediately unable to see out of the eye that was hit and
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was in extreme pain. Wallis testified that other people joined in the fight and a
barroom brawl ensued before bar security ended the fight and escorted the parties
outside.
       Ariana testified that Josephine tried speaking with her throughout the night
before grabbing her around the time of last call. Ariana told Josephine that she did
not want to speak with her, and Wallis put her arms between the two and told
Josephine to “get her f-----g hands off of [Ariana].” Ariana saw Appellant take the
glass from Wallis’s hand and saw Josephine pull Wallis to the ground. Ariana did
not see Appellant hit Wallis in the face with a glass because Ariana was pulled away
from the altercation.
      Thorndyke testified that a group of women approached Ariana and Wallis.
Thorndyke stepped in after seeing one woman grab Ariana and another woman raise
her fist. Thorndyke was quickly taken “out of the action” after a third woman
grabbed her hair and hit her in the nose. Thorndyke was unable to recall “who did
what to whom.”
       Contreras testified that she saw Wallis on the ground with a woman on top of
her, but security had already pulled the woman off Wallis by the time Contreras was
able to get to her.
       Testifying for the defense, Derian testified that he watched Josephine
approach Ariana and Wallis and saw Wallis attack Josephine first. Derian testified
that Josephine defended herself against Wallis. Derian testified that Josephine and
Wallis were hitting each other and both women fell to the ground. Derian described
the altercation as “a mess” with hair pulling and thrown glasses. Derian testified
that Appellant was not involved in the altercation.
       After both parties were escorted out of the bar, Wallis drove home even
though she “could not see out of [her] eye.” Wallis realized that she needed
immediate medical attention after feeling her eyeball protrude from her face while
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blowing her nose. Wallis’s mother took her to a local emergency room and Wallis
was transported from there to John Peter Smith Hospital (JPS) in Fort Worth to see
a specialist. Wallis had suffered an orbital socket fracture that required surgery.
      Dr. Herman Kao, a maxillofacial surgeon at JPS, repaired Wallis’s orbital
socket fracture. Dr. Kao agreed that Wallis could have possibly suffered a serious
bodily injury, such as disfigurement, if she had not had surgery to repair the fracture.
Dr. Kao testified that, were someone to be hit in the eye with a drinking glass like
the one from Guitars and Cadillacs, that person could suffer a rupture of the eyeball
itself or a fracture of the eye socket. During cross-examination, Dr. Kao agreed that
the type of fracture Wallis suffered could also have been caused by a blunt trauma
such as falling onto a concrete floor.
      Wallis spoke to two police officers and several healthcare professionals about
the cause of her injury. Officer Cati Wolfe with the Abilene Police Department was
unable to gather many details from her interview with Wallis because Wallis was
sedated at the time Officer Wolfe attempted to interview her. Officer Wolfe recalled
Wallis telling her a drink had been taken out of her hand and she was scared she was
going to be hit with the glass. Detective John Wilson was able to confirm that Wallis
told him she had, in fact, been hit in the face with the glass. Wallis’s medical records
listed the causes of Wallis’s injury as being struck in the face with fists and having
her head “slammed into the concrete.” Appellant’s trial counsel primarily focused
on “inconsistencies” in Wallis’s recounting of the incident—namely, whether she
told various individuals that Appellant had hit her in the face with a glass.
      The State introduced screenshots of two social media posts Appellant had
made about the incident. In the screenshots, Appellant admits to “busting [a
woman’s] face with a glass” and “f-----g up some b----’s face” during a “brawl” at
Guitars and Cadillacs.


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                                       Analysis
      Appellant asserts that there is insufficient evidence that she injured Wallis
with a deadly weapon. We note that Appellant’s issue is limited to the allegation
that she used a deadly weapon to assault Wallis.
      We review a challenge to 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 review all
of 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 offense beyond a
reasonable doubt. Jackson,
443 U.S. at 319
; Isassi v. State,
330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We defer to the factfinder’s role as the sole judge of the
witnesses’ credibility and the weight witness testimony is to be afforded. Brooks,
323 S.W.3d at 899
. This standard accounts for the factfinder’s duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson,
443 U.S. at 319
; Clayton,
235 S.W.3d 772, 778
 (Tex. Crim. App. 2007). When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict and defer
to that determination. Jackson,
443 U.S. at 326
; Clayton,
235 S.W.3d at 778
.
      We measure the sufficiency of the evidence by the elements of the offense as
defined in a hypothetically correct jury charge. Malik v. State,
953 S.W.2d 234, 240
(Tex. Crim. App. 1997).       The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was
tried.”
Id.


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         As relevant to this appeal, a person commits the offense of aggravated assault
if the person intentionally, knowingly, or recklessly causes bodily injury to another
and uses or exhibits a deadly weapon during the commission of the assault. PENAL
§§ 22.01(a)(1), 22.02(a)(2).      Here, the State was required to prove beyond a
reasonable doubt that Appellant intentionally, knowingly, or recklessly caused
bodily injury to Wallis and that she used a deadly weapon, a drinking glass, during
the commission of the assault. Id. at §22.02(a)(2).
         Appellant does not contend that a drinking glass cannot be used as a deadly
weapon. See id. at § 1.07(a)(17)(B) (A deadly weapon is “anything that in the
manner of its use or intended use is capable of causing death or serious bodily
injury.”). Rather, Appellant contends that the jury’s determination that Appellant
hit Wallis with a drinking glass was irrational in light of all the evidence. Appellant
asserts that a combination of Dr. Kao’s testimony that Wallis’s injury could have
been caused by a fist or by a fall, Wallis’s statements in her medical records, in
which she describes being struck in the head with fists and “slammed” onto concrete,
and the fact that no other eyewitness saw Appellant hit Wallis with a glass outweighs
the evidence supporting the jury’s finding that Appellant hit Wallis with a drinking
glass.
         Appellant is incorrect in asserting that there is insufficient evidence that she
struck Wallis with a glass. Wallis testified that she was “struck by a very blunt force
object that felt exactly like a glass in [her] eye.” She also told Detective Wilson that
Appellant hit her in the face with a glass. Dr. Kao testified that Wallis’s injuries
could have occurred in several different ways—including being hit in the face with
a glass. Wallis testified that she was unsure whether she told medical professionals
or Officer Wolfe about the glass and explained that her being stressed and upset from
the recent trauma she sustained could account for her not “relay[ing] every bit of
detail.” Moreover, although Derian testified that Appellant was “nowhere involved”
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in the altercation, Wallis testified that she was certain Appellant struck her. Ariana
saw Appellant take the glass from Wallis’s hand, and the security video shows a
security guard removing Appellant from the area of the altercation. Finally, and
perhaps most notably, Appellant posted on social media that she was involved in a
“brawl” at Guitars and Cadillacs and that she “busted” a person’s face with a glass.
      The question of whether Appellant struck Wallis in the eye with a glass was
inherently a credibility issue for the factfinder to resolve.      We defer to the
factfinder’s role as the sole judge of the witnesses’ credibility. See Brooks,
323 S.W.3d at 899
. Additionally, the jury, as the factfinder, is solely responsible for
resolving conflicts in the evidence. Jackson,
443 U.S. at 319
; Clayton,
235 S.W.3d at 778
. We presume that the factfinder resolved the conflicts in favor of the verdict,
and we defer to that determination. See Jackson,
443 U.S. at 326
; Clayton,
235 S.W.3d at 778
. Viewed in the light most favorable to the verdict, we conclude that
there is sufficient evidence from which a rational trier of fact could have concluded
beyond a reasonable doubt that Appellant committed aggravated assault against
Wallis by striking her with drinking glass. We overrule Appellant’s sole issue.
      We note, however, that the trial court’s judgment (1) incorrectly reflects the
statute of conviction; and (2) does not include the affirmative deadly weapon
finding. As we previously noted, Appellant was charged and convicted of
aggravated assault as the offense is set out in Section 22.02(a)(2) of the Texas Penal
Code. However, the trial court’s judgment incorrectly lists Section 22.02(a)(1) as
the statute of conviction.
      Additionally, after the trial court pronounced Appellant’s punishment, the
prosecutor stated to the trial court, “I know the deadly weapon was alleged in the
indictment; but we’d ask that the Court make a deadly weapon finding.” The trial
court responded that “[t]he deadly weapon was part of the charging instrument. The
Court finds -- the jury made that affirmative finding, and the Court adopts the
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affirmative finding of the deadly weapon use. That is made.” Accordingly, we treat
the omission of the affirmative deadly weapon finding as a clerical error. See
Guthrie-Nail v. State,
506 S.W.3d 1, 5, 7
 (Tex. Crim. App. 2015) (“If [the factfinder]
necessarily made a deadly-weapon finding when it found the defendant guilty as
charged in the indictment for an offense that contained a deadly-weapon element,
then [the trial court] was required to enter that finding in the judgment.”); see also
Duran v. State,
492 S.W.3d 741
, 745–47 (Tex. Crim. App. 2016).
      An appellate court has the power to modify the trial court’s judgment to make
the judgment speak the truth when it has the necessary information before it to do
so. See TEX. R. APP. P. 43.2(b); Bigley v. State,
865 S.W.2d 26
, 27–28 (Tex. Crim.
App. 1993). Because we have the necessary information to make the judgment
speak the truth, we modify the judgment of the trial court to reflect the statute of
conviction, Texas Penal Code § 22.02(a)(2), and to include an affirmative deadly
weapon finding.
                                   This Court’s Ruling
      As modified, we affirm the judgment of the trial court.




                                                JOHN M. BAILEY
                                                CHIEF JUSTICE


December 21, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.




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