## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 0 0070

- CR

___________________________

On Appeal from the 8 9th District Court Wichita County, Texas Trial Court No. 58,5 54

- C Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Womack 

### G RE GORY 

### W

AYNE 

### A LEXANDER 

### , Appella nt
V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION I. I NTRODUCTION In a single issue, Appellant Gregory Wayne Alexander challenges the jury ’ s

v er dict convicting him of aggravated assault with a de adly w eapon . According to Alexander , the State failed to prove that the dea dly weapon he used to commit t he assault w as a “ woode n log ” as alleged in the indictment, resu lting in a material variance b e tween the indictment an d t he proof at trial. B ecause we hold that the evidence at trial was sufficient to prove that Alexander hit the compl ainant wit h a

“ wooden log ” a nd, t h us, that there was no variance between t he i ndictment and proof, we aff

irm the trial court ’ s judgment.

II. B ACKGROUND Because the details abo ut the events preceding the assault are not necessary t o our disposition, we provide only a brief summary of what happened

. Alexander and hi s son, the co mpl ainant , got into an argum ent at their friend Ashley Rid dle s ’ s house

on e evening

. The complainant l ef t the house but Alexander stayed there. Early the

n ext mo rning , the complainant returned an d sat down in Riddles ’ s bed room to talk to he r . According to Riddles and the complainant, Alexander swiftly entered the room and immediately began hittin g the c o mpl ainant in the head w i th a wooden objec t. Acc ording to Riddle s, the first blow rendered the complainant unconsciou s, but Alexander continued to hit hi m multiple times

. T h e compl ainant suf f ered si g nificant injuries: a concussion , two large lacerations on hi s head, “ acute intracranial3

hemorrhage, ” and a h a irline skull fracture. The police searched Riddles ’ s house afterward but never found the object Alexander used to hit the c omplainant. A grand jury indicted Alexander for aggravated assault with a de adly weapon, alleging specif

ically that Alexander “ intentionall y, knowingly, or recklessly cause[d] bodily inj ury to [the co mp l ainant ] by striki ng [the complainant] on or about th e head, and . . . use [d] or exhibit[ ed] a d eadly weapon , to

- wit: [a] wooden log, durin g the commission of [the] assault. ” See Tex. Penal Code Ann. § 22.02(a)(2). Alexander contended at his t ri al that he acte d in self

- d efense , but the jury rejected that de fense and convicted him of aggravated assault with a d eadly weap on. The ju ry found a punishment

- enhancement allegati on to be true and assesse d Alexander ’ s punish m ent at twenty

- fiv e years ’ confinement ; t he trial judge sentenced Alexander accordingly

. See id

. § 12

. 4 2 (b)

. The trial cour t also inclu ded a n affirmative deadly weapo n findin g in the judgment. See Tex. Code Crim. Proc. Ann. art. 42A. 05 4 (c)

. Alexander appeals the jud gment on a narrow sufficiency ground. III. D ISCUSSION A. Stan dard of R eview Federal due process requires that the State prove beyond a reasonable doubt

ev ery el ement of the crime charged

. Jackson v

. Virginia , 443 U.S

. 307, 316 , 99 S

. Ct

. 2781, 2787 (1979); see U.S

. Const

. amend

. XIV

. In our due

- process evidentiary

sufficiency review, we view all the evidence in the light most favorable to the verdict to d etermi ne whether any rational factfinder could have fou n d the crime’s ess ential4

elements beyond a reasonable doubt

. Jackson , 443 U.S

. at 319, 99 S

. Ct

. at 2789 ; Queeman v

. State , 520 S.W.3d 616, 622 (Tex

. Crim

. App

. 2017)

. This standard gives full play to the f actfinder’s responsibility to resolve conflicts i n the testimony, t o weigh the evidence, a nd to draw reasonable inference s from basic facts to ultimate facts

. See Jackson , 443 U.S

. at 319, 99 S

. Ct

. at 27 89; Queeman , 520 S.W.3d at 622

. The factfind er alo ne judges the evidence’s weight and credibility

. See Tex

. Code Cri m . Proc

. Ann

. art . 38.0 4; Queeman , 520 S.W.3d at 622

. Thus, when performing an evidentiary

- sufficiency review, we may not re

- evaluate the evidence’s weight and credibility and substi tute o ur judgment for the factfinder ’s

. Queeman , 520 S

. W.3d at 622

. Ins tead, we determine whet her the necessary infe rences

are reasona ble based on the evidence’s cumulative force when viewed in the light

most favorable to the verdict

. Murray v

. State , 4 57 S.W .3d 446, 448 (Tex

. Crim

. App. 2015 ) ; see Villa v

. State , 514 S.W.3d 227, 232 (Tex

. Crim

. A pp . 2017) (“The court conducting a sufficiency review must not engage in a ‘divide and conquer’ strategy but

must c onsider the cumulative force of all the evide nce.”)

. We must presume that the factfinder resolved a n y conflicting inf erences in favor of the verdict , and we must defer to that resolution

. Murray , 457 S.W.3d at 448

– 49

. B. Alexander ’ s Issue Alexander chal lenges a single jury finding: that he used a “wood en log ” to assault the complainant , a s a l l e g e d i n t h e i n d i c t m e n t . Accordin g to Alexander , the evidence is insufficient to show that the object he hit the complainant with could be5

considered a “ wooden log ” acc ording to the common meaning of that term

. Thus, Alexander does not argue that the State faile d to show that he hi t the complainant

w it h an object or that the object, in its manner of use or intended use , was capable of causing death or serious bodily injury. See Tex . Pe nal Code Ann. § 1.07 (a)( 17)(B) ( defi ning noninherent deadly weapon) . Instead, Alexander contends that a material varia nc e exis ts between the indictment ’ s description of the object used and the witnesses ’ descriptions of the o bject at trial

. See Gollihar v

. State , 46 S.W.3d 243, 246 (Tex

. C rim

. App

. 2001) ( “ In a variance situation, th e State has prove n the defendant guilt y of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. ” ). Because the existence of a material vari ance be tween an in dictment ’ s allegations and the State ’ s proof render s the evidence supporting a conviction insufficie nt , Alexander contends that we must reverse hi s conviction. 1 See Thomas v. S tate , 444 S.W.3d 4, 9 (Tex. Crim. App. 2014) ( noting that a

m aterial variance render s a con viction “ inf i rm ” but tha t “ [i] mmaterial vari ances do not affect t he validity of a criminal convictio n ” ) ; Gollihar , 4 6 S .W.3d at 2 57

. But because

1 Alexander contends that rather than r endering a judgment of a cquit tal, we sho uld reform the judgment to show his conviction for the l esser
- included offense of misdem eanor assault and remand the case for a new punishment tr ial within the lower range applicable to Class A misdemeanors

. See Te x . Penal Code Ann. § 12.21 (pr oviding ran ge of punish m ent for Class A misdemeano r), § 22.01(a)(1) , (b) (providing that bodily

- injury assault i s a Clas s A misdemeanor) ; Thornton v

. State , 425 S.W.3d 289, 299

– 300 (Tex

. Crim

. App

. 2014) ( holding that when app e llate court determines that t he evidence is insufficien t to supp o rt a con viction for a greater o ff ense, it must consider whether to reform the judgment to s how conviction for a less er
- include d o ffense ).6

the evidence supports the jury ’ s finding that the object Alexander u sed to commi t the

a ssault was a “ wooden log ” as alleged in the in d i ctment, we conclude t hat there is no

var iance between th e indictment ’ s alleg ation and the proof at trial ; thus, we re ject Alexander ’ s claim that the evidence does not support his conviction

. C. Witness es ’ Descriptio n of Object The complainant testif

ie d t h at he saw Alexander c ome into Riddles ’ s bedroom holding what “ l ooked like . . . a tree branch, a log. ” The item “ was long, like something you pick up from outside. ” He had not seen the item before. A fter seeing Alexand e r come into the room holding the object , the complainant put his head in his hands; he c ould not remember anything else from that nig ht. His next memory wa s of waking up in the hospital. On cross

- examination, the c omplainant s t a ted t hat the object A lexander had been h olding “ looked like a tree branch

. ” He admitted that only second s elapsed between the time he saw Alexander and the time Alexander started hitting him ; thus he di d not get a good l ook at the object. But whe n the prosecu tor as ked the complainant again whether his injuries had been c aused by Alexander ’ s hit tin g him with “ a wooden log, ” the complainant answered , “ Y es . ” Rid dl es told the police after th e attack that Alexander ha d hit the co mplainant

w it h a log. At trial, R

iddles described the object in several ways. She first testified that Alexander hit the complainant with “ a stick ” or “ som e sort of stick ” that was mad e of “ [w]ood ” a nd measured “ about two

- and

- a
- h alf in ches in diame ter7

an d

. . . about f

o ur foot [sic] long

. . . [or] maybe a little shorter. ” Riddles admitted that the object could have been described as a log and that she had seen Alexander walking with it. Riddles a lso cla imed to have fou nd the “ stick, lo g thing ” weeks after the assault ; it had been hidde n behin d the mirror in her bedroom and had been broken in to two pi eces . Riddle s di d not know what had happened to the ite m , though , and opined that it could have been burn ed in h er firepit “ as kindling. ” Alexander cross
- ex amined Riddles in detail about the nature of the object. Accordin g to Riddles, sh e never measure d t he “ log, ” and it di d not appear to have

“ just ” fallen off a tre e ; it was rounded and sm ooth , “ like a sta ff, like something Moses would carry. ” But when Alexander asked her if the object “ was more of a staff than a log, ” Riddles answered, “ I woul d say it was a log. ” When Alexander asked Riddles her definition o f a log, she ans wered, “ I guess anything two inc hes in diameter on, I would consider a log. ” Alexander then questioned Riddles ab out the dictionary definition of “ log ” : Q. ( [ ALEXANDER ’ S COUNS EL] ) Can you tell me what the

-- this is? A

. Says definition of a log. Q. Okay. And you can see where it ’ s pr inted o ut from?

. . . . A. Webster. Q. Okay. And can you tell me

-- read off that first definition for me?8

A. Bulky piece or length of a cut or fallen tree; especial l y: a length of a tree trunk ready for sa

wing and over six feet long. Q. Okay. And no w, do y ou agree with that definition? A. Yeah , I would consider that a log. Q. You would consider that a log? Okay. And it

-- so you would agree that a log is a le n gth or a cut of a fallen tree? A. One of the definitions, yeah. Q. Okay. But you hav e a dif ferent definition of that? A. Yes. Q. And you ’ re saying both definiti ons ar e correct? A. Yes. Wh en the prosecutor asked Riddles whether she ha d any reason to believe th at the object h ad not been cut from or fallen from a tree “ at s ome po i nt in time, ” she answered, “ It did , I ’ m sure. ” She also said she would describ e the i tem a s “ bulky. ” T he detective who inv estigated t h e offense testified that Riddles desc rib ed the object to him as “ a log, some type of log , large , long. ” From her des cription, he thought the o bject “ sounded like a lar ge piece of firew ood or some type o f log. ” When asked wheth e r the detec tive th ought it obvious that the complain ant had been hit with some type of w eapon, the detective answered, “ Yes , ” explaining that the nature of the complainant ’ s injuries indicated that “ it would take something with . .

. quite a bit of mass o r we ig ht to create that t

ype of inju ry an d q uite a bit of force. ”9

Alexander testifi ed at guilt

- innocence . He claime d that when he a nd the

c om plainant had argu e d, the complainant hit and kicked him n umerous times and had broken his cane. Af

ter t h e complainant left the hous e , Alexander found “ an old piece of wooden hoe h andle . . . about an inch an d a quarter around ” and “ about three foot [sic] long ” in a tool shed in Riddles ’ s backyard. 2 He used it to replace his cane. Alexander claimed t hat when the complain ant returned and was sitting in Riddles ’ s bedro o m, he hit the comp lainant with the hoe handle before the complainant could

“ get ahold of

” him. D. Analysis We measur e the s ufficiency of the evide nce a gainst a hypo thetically c orrect jur y charge. See Jenkins v

. State , 493 S.W.3d 583, 599 (Tex

. Cr i m . App

. 2016) . Such a charge must , among other things, accurately set out the law , be authorized by the indictment, and adequately describe the par ticular offense for which the defend ant was tried

. Id. at 5 99

. The “ law as authorized by the indictment ” m eans the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument

. See id. A correc t char g e need not defin e word s that are n ot sta tutori ly defined ; the jury may freely read such u ndefined word s as

2 In contrast, Riddl es denied that the object had com e from her house or that she h ad a “ conta iner ” in her yard that held tools.10

having any m eaning s “ acceptable in common parlance. ” 3 Green v. State , 476 S.W. 3d 440, 445 (Tex. Crim. A pp. 2015) (quoting Kirsch v. State , 357 S.W. 3 d 645, 650 (Tex. Cr im. App. 2012) )

. We may also apply such common defini tions in assess ing sufficiency of the evidence. See Kirsch , 357 S .W.3 d at 652

. O n appeal, Alexander provides this court with several d efinitions of “ log ” that he contends sh ow the S t ate ’ s proof at t rial was deficient : (1) “ a usually bu lky piece or length of a cut or fa llen tree, especially : a l ength of a tree trunk ready for sawing and over six feet (1.8 meters ) lon g ” ; (2) “ a portion or le ngth of the trunk or of a large limb of a f e lled tree ” ; and (3) “ [ a] part of the tru nk or a lar g e branch of a tree tha t has fallen

o r been cut o ff. ” Accordi ng to Alexander , no rational ju ror co ul d have concluded from the testimony that the object used to hit the compl ai nant met any of t hese

common definition s of a log. Alexa nder does not cite any other authority supportin g his argument; instead, he distinguishes opinions in which the courts held that no varia nce existed b etween the State ’ s indictment allega tion and proof at trial. B ut r egardless of whether we appl y any of the above definitions , the evidenc e supports the ju ry ’ s findin g that Alexander hit the complainant with a log. A ll of the

3 In the context of considering Alexander ’s motion for a directed verdict, the trial court took judicial notice of a definition of “log” that Alexander ’s counsel s a id he had obtained from Merriam

- Webster’ s dic tionary website : “ [a] usually bulky piece or lengt h or cut or fallen tree; es pecially, a length of a trunk ready for sawing and over six feet.” But the trial court denied Alexander ’s motion f o r a directed verdict, st ating,
“ [I] nclud ed within that definit ion, is a definition that means so mething less than six feet. And is it merely a piece of wood, which is consistent with the State’s claim.”11

a b ove definitions include in their meanings a piece of wood that was once some part of a tree. Although Alexander admits th at the compl ainant descr ibed the object as a

“ tree branch, ” he conten ds w e should not give any weight to that test imony because the complainant saw the item for “ seconds ” and admitted that he did not get a good look at i t. But we cannot we ig h the evidence in a suffic iency review or assess a witness ’ s credibil

i ty ; that was the jury ’ s province at trial. See Tex

. Code Crim

. Proc

. Ann

. art . 38.04; Queeman , 520 S.W.3d at 622

. The jury could have decided to believe only the complai n ant ’ s d escri ption of the obj ect and no o ne else ’ s. Or it could have decided that both t he complainant ’ s and Riddles ’ s descriptions , or on ly R iddles ’ s, met the common definition o f a log. The jury w as not obl igated to believe Alexander ’ s self

- serving tes t

imony that t he item was a ho e handle rat her than a log or stick

. 4 Alexander ’ s trial stra t egy was to convince the jury either that he hit the complainant in s elf

- defense or that he hit the complainant with an item other than a log. In his closing argument , Alexander ’ s counsel argued that Alexand er did not deny the he had com mitted misdemeanor assault . Thus, h e told the jury that it had three choices : it could find that Alexander acted in self

- defense, f

ind him not guilty of aggravated assault if it did n o t believe Alexander had use d a “ wooden l og, ” or find

4 We agree with the re asoning in a similar bu t unpublished memoran dum opinion from thi s court, in which a panel h eld that the jury did not hav e to believe the appellant ’ s sel f

- serving testimony that the object he pointed at the victims and later discarded

–– described in the indictment as a “ firear m ”

–– w as actually a pe llet gun. See Lee v. St ate , No. 02

- 17

- 00379

- CR , 20 19 WL 3491648, at *1

– 4 (Tex. App.

–– F ort Worth Aug. 1, 2019 , no pet. h.) (mem . op. , not designated for publication).12

Alexander guilty of aggravated assaul t if it b el ieved that Alexander had used a

“ wooden log. ” The jury rejected self

- def ense and found that Alexander ha d used a

“ wooden log ” as allege d in the indictment

. The jury thus reje ct ed Al exander ’ s
te stimony. And t he ot her evidence sup p orts the jury ’ s v er dict

. Cf., e .g. , Price v. State , 227 S. W.3d 264, 266

– 68 (Tex. App.

–– Houston [1 st Dist.] 2007, pet . ref ’ d, untimely filed ) (holding that juror s could reasonably infer that Pr ice used a fir earm in commi tting offense wh en witnesses d escrib ed the object as a gun) ; Ar thur v. State , 11 S .W.3d 386, 389 (Tex. App.

–– H o uston [14 th Dist.] 2000, pet. ref ’ d) (same). Because the record supports the jury ’ s fi n ding that Alexander used a “ wooden log ” to st rike the com plain ant, we hold that the evide n ce is suf ficient to support the jury ’ s finding a nd th at there was no variance between the indictment ’ s des cription of the obj ect and the proof at trial. We therefor e overrule Alex ander ’ s sole issue on appe al. I V. C ON CLUSION Because we have overrule d Alexander ’ s issue, we affirm the trial court ’ s judg m ent . /s/ Dana Womack Dana Womack Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: August 28, 2019