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Wade v. State

Court of Appeals of Texas, Third District, Austin

January 16, 2020

Robert Eric Wade, III, Appellant
v.
The State of Texas, Appellee

          FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 16-2156-K26, THE HONORABLE SUZANNE BROOKS, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          OPINION

          Thomas J. Baker, Justice.

         Robert Eric Wade, III, was charged with aggravated assault. See Tex. Penal Code § 22.02.[1] At the end of the guilt-or-innocence phase, the jury found Wade guilty of the charged offense. At the end of the punishment phase, the jury recommended that Wade be sentenced to five years' imprisonment and that he be placed on community supervision. See id. §§ 12.33, 22.02(b). The district court rendered its judgment of conviction in accordance with the jury's verdicts and placed Wade on community supervision for seven years. On appeal, Wade contends that the evidence supporting his conviction was insufficient and that the district court should have included an instruction in the jury charge for the lesser included offense of assault. We will reverse the district court's judgment of conviction and remand for a new trial.

         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; K.R., who is Reale's daughter; Officer Michael Silva, who responded to a 911 call regarding the incident; and paramedic James Baker, who also responded to the 911 call. In his testimony, Officer Silva explained that the bed in Reale's master bedroom "was covered with blood" when he arrived, that Sughrue "had a substantial amount of blood around his face and head," and that "a portion of [Sughrue's] earlobe [wa]s missing." Similarly, Baker explained in his testimony that Sughrue had blood on his face, that Sughrue had "an amputation of the left earlobe," that he transferred Sughrue to the hospital to see if the lobe could be reattached, that the wound had "minimal active bleeding" by the time that he treated Sughrue, that Sughrue described the pain as "seven out of ten," and that Sughrue refused any pain medication. During Baker's testimony, his incident report as well as the medical records from the hospital were admitted into evidence.

         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 him with the object in his hand, and that Sughrue ran to the master bedroom. Additionally, Wade stated that he ran after Sughrue because he wanted "to finish it" and because he did not know what Sughrue might have in the bedroom, that he lunged toward Sughrue, that he tackled Sughrue, that they wrestled on the bed, and that Sughrue placed him in a headlock. When describing the incident in question, Wade related that he closed his eyes and bit Sughrue because Sughrue would not release him, that he did not know what he was biting, that Sughrue screamed and released him, that he felt something soft in his mouth, and that he spit the object out. In addition, although he denied intending to bite Sughrue's earlobe off, Wade admitted that he opened his mouth, put his teeth around Sughrue's ear, and bit down hard enough to sever the earlobe. When describing the injury, Wade acknowledged that Sughrue's ear was disfigured but denied that Wade suffered serious bodily injury and further stated that if he saw Sughrue on the street and did not know who Sughrue was, he would be unable to notice any difference between Sughrue's two ears.

         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 ...


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