Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 25th District Court of Gonzales County,
Chief Justice Valdez and Justices Rodriguez and Hinojosa
LETICIA HINOJOSA Justice
Steven Davis appeals his convictions for aggravated assault
with a deadly weapon, a second-degree felony, and assault
family violence, a third-degree felony. See Tex. Penal Code Ann.
§§ 22.01, .02 (West, Westlaw through 2015 R.S.).
convictions were enhanced by appellant's status as a
habitual felony offender. See id. § 12.42(d)
(West, Westlaw through 2015 R.S.). A jury returned a guilty
verdict on both counts and assessed punishment of concurrent
terms of sixty years' imprisonment in the Texas
Department of Criminal Justice-Institutional Division. By
three issues, appellant argues: (1) there is insufficient
evidence that the appellant and the complainant were members
of the same household; (2) there is insufficient evidence
that appellant used or exhibited a deadly weapon; and (3)
appellant's trial counsel was ineffective. We conclude
that cellmates in a jail are not members of the same
household under the assault family violence statute and that
there is legally insufficient evidence that appellant's
hands were used as a deadly weapon. Therefore, we reverse and
remand to the trial court to reform the judgment to reflect a
single conviction for assault causing bodily injury and to
conduct a new punishment hearing.
case arises out of a physical altercation between appellant
and Vernon Pullin, appellant's cellmate. A grand jury
returned an indictment alleging that appellant had committed
aggravated assault by causing bodily injury to Pullin, while
exhibiting or using a deadly weapon; "to-wit,
hand(s)." Under a second
count, the indictment alleged appellant committed assault
family violence against Pullin, "a member of
[appellant's] household, " and appellant was
previously convicted of an assault involving family violence.
following evidence was adduced at trial. Appellant and Pullin
shared a Gonzalez County jail cell. Jailers removed the
television from their cell due to Pullin's verbal abuse
of jail staff. Appellant complained to the staff that it was
unfair for him to be punished for Pullin's actions.
Appellant asked Officer Corey Fonseca to remove him from the
cell or "problems . . . would occur." He also
informed Corporal Gracie Rodella that if the staff did not
remove Pullin, appellant would "handle it himself."
Neither Pullin nor appellant was removed, but Corporal
Rodella instructed Officer Fonseca to monitor the cell.
Sometime later, Pullin knocked on the window of the cell and
asked to be removed, but his request was again denied. After
Pullin attempted to alert jail staff a second time, Officer
Fonseca opened the curtain to the cell and observed appellant
strike Pullin in the back of the head with his fist causing
Pullin's head to hit the ledge of the window. Officer
Fonseca observed appellant "throw a few punches"
to Pullin's face and chest area while Pullin
"cover[ed] up" in a defensive position. Officer
Fonseca called for backup and then entered the cell with
Corporal Rodella and Officer Devon Taylor. The officers
observed appellant hitting Pullin, whose hands were in front
of his face in a defensive position.
backed away when the officers entered, and they were able to
remove Pullin from the cell. A jailer later transported
Pullin to the hospital where he received stitches to treat a
laceration to his nose. Pullin also suffered bruising to his
left temple and a black eye.
testified that, prior to the altercation, appellant stated he
"wasn't going to pay for someone else's
problems" and he was going to "whoop [Pullin's]
ass." On the morning of the assault, appellant told
Pullin "you better get up, fat boy, it's time to
fight[.]" Pullin explained that he was trying to get
Officer Fonseca's attention when he "felt
[appellant] rush up behind [him], and . . . hit [him] in the
back of the head[.]" Pullin explained, "I turned
around and started to defend myself. . . . I kicked him off
of me a couple times and just kept on . . . pushing him away
from me as he kept on continuing to hit me." Pullin
recalled that appellant hit him "a couple more
times" on the head. Pullin stated he suffered bruises on
his face and a laceration to his nose when it struck the
ledge of the cell window. Pullin said he still has a scar on
his nose and experiences numbness on parts of his head. The
trial court admitted photographs depicting the injuries to
Pullin's face and head. A hospital nurse testified that
Pullin received stitches to treat the laceration on his nose
and that Pullin also suffered a contusion to his temple.
to medical records, Pullin was discharged less than an hour
after arriving at the emergency room. When examined, Pullin
was alert, oriented to person, place, and time, and
cooperative. Pullin received stitches for a two-and-one-half
centimeter laceration to his nose. The injury was further
treated with Neosporin and an adhesive bandage. Upon
discharge, Pullin received instructions to take Tylenol every
four hours as needed for pain, apply a topical antibiotic,
and follow up with a physician in one week to have the
testified that the physical confrontation began before Pullin
approached the cell window. Appellant stated Pullin
aggravated him, and he asked Pullin "how are we going to
take care of the matter?" According to appellant, the
two then "engaged in a one-on-one battle."
Appellant claimed Pullin tried to kick him and "rastled
[him] down." Appellant further claimed that he fell to
the ground, and that Pullin stomped on his hand. Appellant
maintained that Pullin attempted to get the attention of a
corrections officer only after Pullin "started to lose
provided a written statement to a Gonzalez County
Sheriff's deputy. In his statement, appellant stated that
he told a jailer "she was leaving [Pullin] in to be
punished by me if she refused to punish him for his
actions." Appellant explained that "she left an
inmate in the faith [sic] of other inmates, which could have
turned tragic all because of her poor judgment and the choice
she made . . . caused [Pullin] to be assaulted."
County Sheriff's deputy Travis Vega testified that
"a fist or a hand . . . could cause serious bodily
injury, could leave somebody dysfunctional or . . . have bad
injuries." Chief Deputy Jeromy Belin testified that he
has investigated several assaults resulting in broken facial
bones and facial reconstruction. Deputy Belin explained that
"[t]he face is constructed of many small bones . . .
around your eyes and nose." He stated that "to
receive several blows, especially in one concentrated area,
is going to tenderize that area, and then you get a better
chance of breaking something in that area." Deputy Belin
opined that appellant used his fist in a manner capable of
causing serious bodily injury.
jury found appellant guilty on both counts. This appeal
Sufficiency of the Evidence
first two issues, appellant argues the evidence is
insufficient to support his convictions for aggravated
assault and assault family violence.
Standard of Review
standard for determining whether the evidence is legally
sufficient to support a conviction is 'whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.'" Johnson v. State, 364 S.W.3d 292,
293-94 (Tex. Crim. App. 2012) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)) (emphasis in
Jackson); see Brooks v. State, 323 S.W.3d
893, 898-99 (Tex. Crim. App. 2010) (plurality op.). The
fact-finder is the exclusive judge of the credibility of
witnesses and of the weight to be given to their testimony.
Brooks, 323 S.W.3d at 899; Lancon v. State,
253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Reconciliation of
conflicts in the evidence is within the fact-finder's
exclusive province. Wyatt v. State, 23 S.W.3d 18, 30
(Tex. Crim. App. 2000). We resolve any inconsistencies in the
testimony in favor of the verdict. Bynum v. State,
767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).
measure the sufficiency of the evidence by the elements of
the offense as defined by a hypothetically correct jury
charge. Cada v. State, 334 S.W.3d 766, 773 (Tex.
Crim. App. 2011) (citing Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997)). Such a 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.
Assault Family Violence
first issue, appellant argues "[t]he evidence is
insufficient to support the conviction for Assault Family
Violence . . . as [appellant] and the alleged victim were not
members of a household." Appellant contends that
"the Texas Legislature did not intend for the term
'household' to encompass inmates in the county jail
placed in the same cell, and a finding of such would lead to
22.01(b)(2) enhances the offense of assault causing bodily
injury from a class A misdemeanor to a third-degree felony.
Agbogwe v. State, 414 S.W.3d 820, 840 (Tex.
App.-Houston [1st Dist.] 2013, no pet.) (citing Tex. Penal
Code Ann. § 22.01(b)(2)(A)). As relevant here, the
offense is a third-degree felony if it is committed against
"a person whose relationship to or association with the
defendant is described by Section . . . 71.005 [defining
household], Family Code" and if "it is shown on the
trial of the offense that the defendant has been previously
convicted of an offense under this chapter . . . against a
person whose relationship to or association with the
defendant is described by Section 71.0021(b), 71.003, or
71.005, Family Code." Tex. Penal Code Ann. §
hypothetically correct jury charge, the State was required to
prove (1) appellant (2) intentionally, knowingly, or
recklessly (3) caused bodily injury to Pullin (4) who is a
member of appellant's household, and (5) had previously
been convicted of an assault involving family violence.
See id.; see also McZeal v. State, No.
13-12-00060-CR, 2013 WL 1688856, at *2 (Tex. App.-Corpus
Christi Apr. 18, 2013, no pet.) (mem. op., not designated for
contends that cellmates are not members of the same household
as defined by section 71.005 of the family code. See
Tex. Fam. Code Ann. § 71.005 (West, Westlaw through 2015
R.S.). As we can find no Texas cases discussing the
application of section 71.005 in this context, the issue
appears to be one of first impression. In resolving this
question, we must construe the pertinent statutory language.
When we interpret a statute, "we seek to effectuate the
'collective' intent or purpose of the legislators who
enacted the legislation." Reynolds v. State,
423 S.W.3d 377, 382 (Tex. Crim. App. 2014) (quoting
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.
App. 1991)). We begin our analysis by attempting to discern
the fair, objective meaning of the text at the time of the
statute's enactment. Id. "Where [statutory
language] is clear and unambiguous, we will give effect to
its plain meaning[.]" Id. This is so because we
assume that the plain language best reflects the intent of
the legislature. Boykin, 818 S.W.2d at 785. Only if
the plain language of a statute would lead to absurd results,
or if the language is ambiguous, may we consider extratextual
factors such as executive or administrative interpretations
of the ...