Wallace v. State

75 S.W.3d 576, 2002 WL 424802
CourtCourt of Appeals of Texas
DecidedMay 7, 2002
Docket06-01-00068-CR
StatusPublished
Cited by129 cases

This text of 75 S.W.3d 576 (Wallace v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallace v. State, 75 S.W.3d 576, 2002 WL 424802 (Tex. Ct. App. 2002).

Opinions

OPINION

Opinion by

Chief Justice CORNELIUS.

Robert Marvin Wallace was convicted of aggravated assault with a deadly weapon, Tex. Pen.Code Ann. § 22.02(a)(2) (Vernon 1994). A jury found him guilty and set his [581]*581punishment, enhanced by one prior conviction, at twenty-five years’ imprisonment.

The offense occurred on July 20, 2000, in the mobile home park where Bert Babb, his girlfriend, Betty Beth Merritt, and Randy Molaris, the victim, resided. At about 7:30 or 8:00 that evening, Sabra Stansell, Amy Smith, and a man identified as Wallace, entered Babb’s mobile home. The man began beating Molaris, who had been sitting on the couch watching television, with a metal baseball bat, causing severe injuries to Molaris’ head and arm. Molaris picked up a nearby wooden rocking chair and put it in front of him, which the assailant smashed with the bat before again striking Molaris. One of the witnesses heard Wallace say to the victim something like, “how do you like being beaten up?” Wallace then left the mobile home, accompanied by Stansell and Smith, got into a car parked outside, and left. There was testimony that another female, identified later as Jennifer Mullins, had come with the group in the car but had not entered Babb’s mobile home.

Sabra Stansell, Amy Smith, Bert Babb, Betty Beth Merritt, and the victim, Molar-is, all gave eyewitness testimony identifying Wallace as the person who struck Mo-laris five or six times with the metal bat. Two other witnesses who saw Wallace at other times before or shortly after the assault identified him in a police photographic display. Two neighbors, Megan Streety and Melissa Layton, who were sisters, were outside when a car containing three females and one male came up to Babb’s mobile home. They noticed the car because it had the name “Jennifer” stenciled on it. Although their versions were slightly different, they both said they saw at least two of the females and the man go into the mobile home. They heard a lot of screaming coming from inside the mobile home, and then saw the two females and the man come out and leave; the man was carrying a baseball bat.

There was testimony that Stansell was angry with Molaris because about a month before this incident, Molaris and Babb had gotten into a fight and Molaris had struck Babb, blackening both of his eyes. There was also testimony that Stansell, Smith, and Mullins had been drinking all day, had come for a short visit to Babb’s mobile home and left, presumably to get more beer, and that they returned with Wallace.

Stansell, during what was apparently a day of continuous drinking, visited Babb’s mobile home earlier on July 20, along with Smith and Jennifer Mullins,1 Wallace’s sister. Stansell then returned to her own house, where Wallace was visiting. After more drinking and talking, Wallace went with Stansell, Smith, and Muhins back to Babb’s mobile home. Stansell made Wallace aware of her dislike for Molaris.

Stansell and Smith testified that they each initially gave a false description of the man who attacked Molaris, calling him “Billy,” and that they gave the false statements to protect Wallace.

Several witnesses testified for the defense and said that Wallace and Mike Allen were in Dallas on July 20, 2000, the date of the incident, immediately after Wallace had purchased a new truck. This alibi testimony was refuted by the salesman who sold the truck to Wallace. He said he sold the truck to Wallace in Paris on July 31, not until well after July 20. The salesman produced a copy of the sales contract as confirmation of the transaction.

In his first issue, Wallace challenges the sufficiency of the evidence to support his conviction, contending that “the State failed to show that the com[582]*582plainant suffered a serious bodily injury.” Wallace does not specify whether the challenge is to the legal sufficiency, the factual sufficiency, or both. We will consider both challenges in the interest of justice. Aldrich v. State, 928 S.W.2d 558, 559 n. 1 (Tex.Crim.App.1996); Chimney v. State, 6 S.W.3d 681, 688 (Tex.App.-Waco 1999, no pet.).

Tex. Pen.Code Ann. § 22.02(a) (Vernon 1994) describes two kinds of aggravated assault: 1) assault, as defined in Section 22.01, which causes serious bodily injury to another, including the person’s spouse; or 2) assault, as defined in Section 22.01, in which the defendant uses or exhibits a deadly weapon during the commission of the assault. Wallace was charged in the indictment with intentionally, knowingly, or recklessly causing bodily injury to Mo-laris by hitting him and using and exhibiting a deadly weapon, to-wit, a baseball bat, that in the manner of its use and intended use was capable of causing death and serious bodily injury. The jury was instructed:

Our law provides that a person commits an assault if the person intentionally or knowingly or recklessly causes bodily injury to another.
A person commits the offense of aggravated assault if the person commits assault, as hereinbefore defined, and the person uses or exhibits a deadly weapon during the commission of the assault.
“Deadly weapon” means anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
“Bodily injury” means physical pain, Alness, or any impairment of physical condition.

The statutes do not require the State to prove both that Wallace caused serious bodily injury and that he used a deadly weapon. A person may be guilty of aggravated assault if he commits an assault with a deadly weapon and causes bodily injury or if he commits an assault and causes serious bodily injury. Madden v. State, 911 S.W.2d 236, 244 (Tex.App.-Waco 1995, pet. ref'd). Wallace was charged with the type of aggravated assault committed with the use of a deadly weapon, where the jury would have to find assault, bodily injury, and use of a deadly weapon, but not serious bodily injury. Since Wallace challenges the sufficiency of the evidence on a matter that the State was not required to prove, we reject his challenge.

In issues two and three, Wallace challenges the trial court’s order of restitution to the victim in the amount of $6,227.65 for medical expenses and $3,000.00 for lost wages, totalling $9,227.65. See generally Tex.Code CRim. PROC. Ann. art. 42.037(b)(2)(A-C) (Vernon Supp.2002). Wallace contends that the trial court relied solely on hearsay evidence in issuing such an order, thereby denying him due process of law under both the United States and Texas Constitutions.

In its brief, the State has conceded error on this point, agreeing that the hearsay objection raised by Wallace at trial was well-taken. Thus, the only issue we consider is what disposition this error requires. The parties have called to our attention two cases procedurally similar to this case, in which the disposition was handled differently. In Cartwright v. State, 605 S.W.2d 287 (Tex.Crim.App. [Panel Op.] 1980), the trial court assessed punishment on an aggravated assault conviction at ten years, probated, and set restitution to the victim in the amount of $36,000.00.

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Bluebook (online)
75 S.W.3d 576, 2002 WL 424802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-state-texapp-2002.