Affirmed as Modified and Opinion Filed October 19, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-01231-CR 

EMMANUEL LYNN LIMBERG, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the Criminal District Court No. 4 

Dallas County, Texas 

Trial Court Cause No. F-1875450-K 

MEMORANDUM OPINION 

Before Justices Myers, Partida-Kipness, and Garcia 

Opinion by Justice Partida-Kipness 

Appellant Emmanuel Lynn Limberg appeals his conviction for Aggravated 

Assault Causing Bodily Injury With a Deadly Weapon Family Violence, a seconddegree felony. Limberg brings two issues on appeal, and the State asserts five crosspoints. We overrule Limberg’s issues, sustain the State’s cross-points, modify the 

judgment as requested by the State, and affirm the judgment as modified. 

BACKGROUND 

Kristen Zapalac, the complainant, met Limberg in 2017 while working as the 

front desk supervisor at a hotel Limberg frequently stayed at while in Dallas on 

business. The pair began dating and, by early to mid-December, Limberg was 
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primarily staying with Zapalac at her apartment instead of getting a hotel room when 

he was in town. In February 2018, Limberg had the apartment lease transferred from 

Zapalac’s roommate to him. Zapalac was a tenant on the lease. The assault at issue 

occurred on March 18, 2018. After working a night shift, Zapalac returned home 

around 8:00 or 8:30 a.m., went to sleep, and woke up around 4:00 or 5:00 p.m. 

According to Zapalac, Limberg was cooking bacon in the kitchen and yelling at her 

from the kitchen about leaving dirty dishes soaking in the kitchen sink. When she 

joined Limberg in the kitchen, Zapalac told him she wanted to break up with him 

but thought they should “both be adults and ride out the last two months on the 

lease.” Limberg continued cooking while Zapalac talked and, when she finished 

talking, she asked Limberg if he heard her. Limberg replied, “Yeah, whatever. Are 

you done?” He then placed the cooked bacon on a plate and leaned into the 

refrigerator to get something. 

Zapalac reached across the sink to turn off the stove and then grabbed the 

frying pan off the burner to wash it. Zapalac testified that when Limberg heard the 

“click” from her turning off the stove, Limberg “spun around,” saw she had the pan 

of grease in her hand, “wrenched” the pan from her hand and, while holding it like 

he was performing a backhand with a tennis racket, “lobbed” the pan’s grease onto 

Zapalac. As Limberg was throwing the grease on Zapalac, he stated “What the fuck 

are you doing? I’m not done cooking yet, you dumb bitch.” She immediately felt the 
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hot grease hit her skin. A few minutes later, after the shock of the event wore off, 

Zapalac “felt like [she] was on fire.” 

Limberg told Zapalac that he grabbed the pan because he thought Zapalac was 

going to dump the grease on his head. At trial, Zapalac expressed disbelief at his 

explanation, telling the jury that Limberg is “a lot taller” than she is, so she did not 

understand how it would even be possible to pour grease on his head. Limberg then 

went to the bedroom, zipped up his suitcases, which he typically kept packed, and 

loaded his belongings in his car. When Limberg briefly came back inside the house, 

Zapalac told him to take all of his belongings because he was not coming back. She 

also told Limberg that her grease burns hurt “so bad.” He responded, “Run some 

water over it, you damn bitch. God, you’re so retarded.” Before finally leaving, 

Limberg returned to the kitchen and got the bacon he had made and took it with him. 

After being struck by the grease, Zapalac called two friends for comfort, called 

a third friend to ask for a ride to the hospital, and then FaceTimed her mother. When 

Zapalac’s parents saw her burns, they advised her to go to the hospital and call the 

police. Zapalac called 911 and took videos on her cellphone of the crime scene and 

her burn injuries. She testified that she could not put on a shirt because the pain from 

her burns “hurt too bad.” Zapalac told the 911 operator her “face was peeling off.” 

At trial, she explained that her face felt like it was “melting off,” and the grease 

continued to burn her skin with every passing second. Zapalac felt as if the pain was 

getting worse and worse every second. She told the jury that she feared the grease 
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would permanently scar her skin and disfigure her, and she could not believe 

someone would use grease to burn someone they love. 

David Dixon and his partner were the Dallas Fire and Rescue paramedics 

dispatched to Zapalac’s apartment. Dixon testified that this call was “unique” 

because burn calls are rare. He also explained that this was a “very bad” burn call 

that presented a “challenging situation.” When he first saw Zapalac, Dixon noticed 

that she had second-degree burns on part of her face and left arm. He knew they were 

second-degree burns because the burn had “blistered up.” Zapalac told the 

paramedics that she got burned from grease. Dixon’s written narrative in his 

Prehospital Care Report Summary states that Zapalac reported, “My boyfriend put 

hot bacon grease on me.” Dixon saw the skillet on the ground in the kitchen and saw 

grease everywhere, including on her body. Dixon and his partner put a burn sheet on 

Zapalac to keep the burns cool and moisturized. They wanted to get her to the 

hospital as quickly as possible. With any burn, paramedics “are in a hurry” to get the 

patient to the burn unit, but even more so with second and third degree burns. 

Zapalac testified that it was “difficult” for her when the paramedics placed the burn 

wrap on her, describing the wrap as “painful stuff.” Although she “was in an 

incredible amount of pain,” Zapalac drove herself to the emergency room because 

she believed she could not afford ambulance transport. 

At the emergency room, hospital staff took Zapalac to a private room where 

nurses, police officers, and doctors asked questions, took pictures of her injuries, and 
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treated her burns. Zapalac “couldn’t stop crying” because the grease burns caused 

her to feel like she “was on fire.” She described the pain as “the most pain I have 

ever felt.” She told the jury that the pain rated a nine out of ten. Zapalac received 

pain medication and an IV when she arrived at the hospital. After about ten minutes, 

Zapalac was calming down emotionally, “wasn’t hyperventilating as hard,” and 

began “feeling groggy.” But the pain medication was only helping with the pain 

“very, very, very minimally.” 

At the hospital, blisters formed on Zapalac’s “entire arm,” on her face, and on 

her chest. Zapalac testified that the blisters “felt excruciating” and “as soon as one 

had formed, they were just popping up one after the -- one after the other.” She 

explained that her skin was raw underneath the blisters after medical personnel 

removed the blisters and “it hurt so much.” 

Emergency trauma nurse Arika Tilma treated Zapalac. Tilma is certified in 

Advanced Burn Life Support and specializes in trauma and burns. Zapalac’s medical 

team gave her medication for her pain and Silvadene, a healing ointment. Tilma 

testified that they use Silvadene in cases where the burns are deeper burns and more 

severe. Medical personnel cleaned her burn wounds with scrub brushes to remove 

the grease and blisters, and admitted her to the hospital because of the extent of the 

burns. At one point during her treatment, Zapalac watched her skin peel off as a 

nurse used a bristled brush and a sandpaper-like sponge to scrub her burns. Zapalac 

felt extreme pain from the scrubbing and begged the nurse to stop. The nurse 
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administered pain medication and resumed scrubbing. The pain medication did not 

work immediately so Zapalac pleaded with the nurse to stop. The nurse left and 

returned a few minutes later to finish scrubbing the burns. 

Tilma testified that she treated Zapalac for burns to three-and-a-half to four 

percent of her body, including her forearm, shoulder, left side of her chin, and chest. 

Tilma noted that while three-and-a-half percent is not a large portion of Zapalac’s 

body, Zapalac’s burn percentage “still is significant, I mean, for the type of -- the 

mechanism in which it happened.” According to Tilma, Zapalac told her that “she 

was in an altercation with her boyfriend and that . . . he had grabbed the pan of hot 

grease and threw it on her.” Zapalac reported the same events to responding Dallas 

Police Department Officer Tyler Prothro. Tilma told the jury that Zapalac seemed 

“withdrawn” but was also in a lot of pain, uncomfortable, “very tearful,” and 

emotionally upset while being treated. 

The jury was shown photos of Zapalac’s injuries before and after the 

treatment. Those exhibits included photos of skin peeling from her body after the 

nurse finished scrubbing, and raw skin on Zapalac’s arm and chest after the nurse 

had popped the blisters. Zapalac had what she described as a third-degree burn by 

the corner of her mouth. That particular wound took “a good four months” to 

completely heal and was still causing her pain sporadically at the time of trial: 

Every time I opened my mouth, it felt like my -- my mouth was cracking 

open, like, tearing open more, and that -- despite that being the smallest 
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injury, that was the one that took the longest to heal and was most as -- 

I felt pain there longer than anywhere else. It was the worst. 

Zapalac stated that her pain level was at a nine or ten for almost a week after the 

incident “and then it very gradually went down over the course of time.” Photos of 

the burns taken about ten days after the incident show well-defined burns on 

Zapalac’s arm, chest, and face. The burns look raw and pink. The burns on her face 

were partially scabbed, partially pealing, and bright pink underneath. Photos of her 

arm taken two weeks before trial show visible scarring from the burns. 

The Dallas County grand jury indicted Limberg on one count of aggravated 

assault causing serious bodily injury under section 22.02(b)(1) of the penal code. 

The indictment charged the aggravated assault as a first-degree felony, alleging a 

family relationship between Limberg and Zapalac, and alleging Limberg used a 

deadly weapon, hot grease, during the commission of the assault. Limberg pled not 

guilty, and the case proceeded to trial. A jury found Limberg guilty of the seconddegree felony of aggravated assault causing bodily injury with a deadly weapon 

family violence. The trial court sentenced Limberg to ten years’ confinement and 

made affirmative deadly-weapon and family violence findings. 

ANALYSIS 

Limberg brings two issues on appeal. We address each in turn. 

I. Submission of Lesser-Included Offense 

In his first issue, Limberg complains that the trial court submitted the lesserincluded offense of second-degree aggravated assault with a deadly weapon. We 
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review alleged charge error by considering two questions: (1) whether error existed 

in the charge; and (2) whether sufficient harm resulted from the error to compel 

reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (internal 

citations omitted). Jury charge error requires reversal when the defendant has 

properly objected to the charge and we find “some harm” to his rights. Id. When the 

defendant fails to object or states that he has no objection to the charge, we will not 

reverse for jury-charge error unless the record shows “egregious harm” to the 

defendant. Id.

Limberg was indicted for first-degree aggravated assault. The jury charge 

included instructions and a question on that offense as well as instructions and a 

question on second-degree aggravated assault. Limberg argues that the jury charge 

should not have included second-degree aggravated assault because the indictment 

alleged only that he used a deadly weapon, but a conviction for second-degree 

aggravated assault can be based on either the use or exhibition of a deadly weapon. 

According to Limberg, “[s]econd-degree aggravated assault under Section 

22.02(a)(2) is not a lesser-included offense of first-degree aggravated assault under 

section 22.02(b)(1) because the second-degree assault has the additional element of 

exhibiting a deadly weapon.” We conclude these arguments lack merit and overrule 

Limberg’s first issue. 

As a preliminary matter, the arguments Limberg makes on appeal on this issue 

were not raised below and, as such, are not preserved for review. At the charge 
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conference, Limberg’s counsel objected to inclusion of the lesser-included offense 

on the ground that there was no evidence of mere bodily injury. On appeal, Limberg 

complains the second-degree offense is not a lesser-included offense because the 

second-degree offense can be established by proving he used or exhibited a deadly 

weapon, whereas the indictment alleged only use of a deadly weapon. This 

complaint does not match the objection made at trial. Because Limberg’s complaint 

on appeal does not comport with his trial objection, he has failed to preserve error 

on this complaint. TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333, 340 

(Tex. Crim. App. 2012); Jasso v. State, 112 S.W.3d 805, 812 (Tex. App.—Houston 

[14th Dist.] 2003, pet. ref’d). 

Even if Limberg had preserved error for our review, the record does not reflect 

any error occurred. First, Limberg’s contention that second-degree aggravated 

assault is not a lesser-included offense of first-degree aggravated assault is contrary 

to established law. See Wilson v. State, No. 05-10-01604-CR, 2012 WL 3264396, at 

*5 (Tex. App.—Dallas Aug. 13, 2012, pet. ref’d) (not designated for publication) 

(“[a]ssault by committing bodily injury is a lesser-included offense of aggravated 

assault by inflicting serious bodily injury”) (quoting Hall v. State, 225 S.W.3d 524, 

531 (Tex. Crim. App. 2007)). Moreover, under this record, we conclude the trial 

court properly charged the jury on the lesser-included offense. 

An aggravated assault is generally a second-degree felony that requires proof 

beyond a reasonable doubt of both (a) the commission of an assault by intentionally, 
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knowingly, or recklessly causing bodily injury to another, including the person’s 

spouse, and (b) one of the following: 

(1) causing serious bodily injury to another, including the person’s 

spouse; or 

(2) using or exhibiting a deadly weapon during the commission of the 

assault. 

TEX. PENAL CODE §§ 22.01(a)(1) (assault); 22.02(a) (second-degree aggravated 

assault). An aggravated assault is a first-degree felony if the actor uses a deadly 

weapon and causes serious bodily injury to a person with whom the actor was in a 

“dating relationship” as defined by section 71.0021(b) of the family code, are family 

members as defined by section 71.003 of the family code, or are members of the 

same household as defined by section 71.005 of the family code. TEX. PENAL CODE 

§ 22.02(b)(1). 

Here, the State indicted Limberg for first-degree felony aggravated assault 

serious bodily injury with a deadly weapon, family violence under section 

22.02(b)(1) of the penal code. The indictment states that Limberg (1) intentionally, 

knowingly and recklessly caused serious bodily injury to Zapalac by throwing hot 

grease on Zapalac, (2) used a deadly weapon, hot grease, during the commission of 

the assault, and (3) “has and has had a dating relationship” with Zapalac and was a 

member of Zapalac’s family and household. TEX. PENAL CODE § 22.02(b)(1). Under 

that indictment, to convict Limberg of first-degree aggravated assault, the State was 

required to prove beyond a reasonable doubt that Limberg (1) assaulted Zapalac, (2) 
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used a deadly weapon during the commission of the assault, (3) caused serious 

bodily injury to Zapalac, and (4) was in one of the familial relationships set out in 

section 22.02(b)(1). See TEX. PENAL CODE § 22.02(b)(1). 

In contrast, to convict Limberg of second-degree aggravated assault, the State 

was required to prove only that Limberg assaulted Zapalac and either (1) caused 

Zapalac serious bodily injury or (2) used1

 a deadly weapon during the commission 

of the assault. See TEX. PENAL CODE § 22.02(a). 

At trial, the court charged the jury on first-degree and second-degree 

aggravated assault. The second-degree charge sought conviction only for causing 

bodily injury and using a deadly weapon. TEX. PENAL CODE §§ 22.01(a)(1), 

22.02(a)(1). The State did not seek conviction for second-degree aggravated assault 

by causing serious bodily injury without the use of a deadly weapon. TEX. PENAL 

CODE §§ 22.01(a)(1), 22.02(a)(2). 

An offense will be a lesser-included offense when it is established by proof of 

the same or less than all the facts required to establish the commission of the charged 

offense. TEX. CODE CRIM. PROC. art. 37.09(1). To determine whether an offense 

qualifies as a lesser-included offense, courts use the cognate-pleadings approach. Ex 

parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). An 

offense is a lesser-included offense of another offense if the indictment for the 

1

 The indictment did not allege exhibition of a deadly weapon, only use of a deadly weapon. 
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greater-inclusive offense either: (1) alleges all of the elements of the lesser-included 

offense, or (2) alleges elements plus facts from which all of the elements of the 

lesser-included offense may be deduced. Id. If this analysis supports a determination 

that the requested lesser offense is a lesser-included offense, the court will move to 

the second step of the test and consider whether a rational jury could find that, if the 

defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 

S.W.2d 666, 673 (Tex. Crim. App. 1993). 

Under the charge given here, the only difference between the first degree and 

second degree offenses was the degree of injury. To convict on either offense, the 

jury was required to find use of a deadly weapon, a dating or familial/household 

relationship between Limberg and Zapalac,2

 and that Limberg caused either bodily 

injury or serious bodily injury. If the jury had found Limberg caused serious bodily 

injury, then the jury would have convicted for first degree aggravated assault. But 

the jury found that Limberg only caused bodily injury and convicted on the second 

degree offense. Bodily injury is encompassed within serious bodily injury. See Ortiz 

v. State, 623 S.W.3d 804, 807 (Tex. Crim. App. 2021) (“aggravated assault is a 

bodily-injury assault plus aggravating elements of serious bodily injury or use of a 

deadly weapon. Tex. Penal Code § 22.02(a). Without the aggravating elements, there 

is still a bodily-injury assault.”); see also Stone v. State, No. 05-12-01261-CR, 2014 

2

 The charge included the element of family violence in the second-degree offense instructions even 

though that was not required for conviction on the lesser-included offense. Neither Limberg nor the State 

complain of this issue on appeal. 
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WL 1018196, at *1 (Tex. App.—Dallas Feb. 20, 2014, no pet.) (mem. op., not 

designated for publication) (noting that bodily injury is included within the 

definition of serious bodily injury in the penal code). Although the indictment 

alleged serious bodily injury, the elements of bodily injury to support the lesserincluded offense were necessarily encompassed within the indictment. Further, the 

State alleged use of a deadly weapon in the indictment, which is an element of proof 

required in both degrees of felony charged here. Under these facts, we conclude the 

indictment alleged all of the elements of the lesser-included offense as charged at 

trial. Step one of the analysis is, therefore, met. 

We next consider whether a rational jury could find that, if the defendant is 

guilty, he is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 673. The 

penal code defines bodily injury as “physical pain, illness, or any impairment of 

physical condition.” TEX. PENAL CODE § 1.07(a)(8). It defines serious bodily injury 

as “bodily injury that creates a substantial risk of death or that causes death, serious 

permanent disfigurement, or protracted loss or impairment of the function of any 

bodily member or organ.” Id. § 1.07(a)(46). 

Here, although the burns were severe and painful, the jury could have 

concluded that they did not rise to the level of a serious bodily injury because 

Zapalac was hospitalized for just one day, and her burns had healed before trial 

without severe complications and without “serious permanent disfigurement, or 

protracted loss or impairment of the function of any bodily member or organ.” It was 
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undisputed, however, that Zapalac suffered physical pain and, thus, bodily injury. 

Zapalac testified to the “excruciating” pain she endured from the burns and to the 

severe and lingering pain she suffered in the days, weeks, and months after the 

incident. Under this record, we conclude second-degree felony aggravated assault 

was a lesser-included offense and was properly charged here. As such, no harm 

analysis is required. See Ngo, 175 S.W.3d at 743–44. We overrule Limberg’s first 

issue. 

II. Deadly Weapon Finding 

In his second issue, Limberg challenges the sufficiency of the evidence to 

support the deadly weapon finding. Specifically, Limberg maintains the evidence is 

insufficient because the State did not elicit testimony that grease constituted a deadly 

weapon in this case. We review the sufficiency of the evidence under the standard 

set out in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Matlock v. State, 392 

S.W.3d 662, 667 (Tex. Crim. App. 2013). We examine all 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; Matlock, 392 S.W.3d at 667. 

To sustain a deadly-weapon finding, the evidence must show that the object 

satisfies the definition of “deadly weapon,” that it was used or exhibited during the 

offense, and that someone other than the defendant was put in danger. Brister v. 

State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014); Green v. State, 465 S.W.3d 
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380, 382 (Tex. App.—Fort Worth 2015, pet. ref’d). The Texas Penal Code defines 

“deadly weapon” as “(A) a firearm or anything manifestly designed, made, or 

adapted for the purpose of inflicting death or serious bodily injury; or (B) anything 

that in the manner of its use or intended use is capable of causing death or serious 

bodily injury.” TEX. PENAL CODE § 1.07(a)(17). The “use” element can be satisfied 

by “any employment of a deadly weapon, even its simple possession, if such 

possession facilitates the associated felony.” Patterson v. State, 769 S.W.2d 938, 

941 (Tex. Crim. App. 1989) (citation and internal quotation marks omitted); Hill v. 

State, No. 02-16-00306-CR, 2018 WL 2248466, at *2 (Tex. App.—Fort Worth May 

17, 2018, pet. ref’d) (mem. op., not designated for publication) (citing Patterson). 

Hot grease is not a deadly weapon per se because it is not an object 

“manifestly designed, made, or adapted for the purpose of inflicting death or serious 

bodily injury.” TEX. PENAL CODE § 1.07(a)(17)(A); see Cooper v. State, No. 03-19-

00007-CR, 2020 WL 5752920, at *8 (Tex. App.—Austin Sept. 23, 2020, pet. ref’d) 

(mem. op., not designated for publication) (knife is not a deadly weapon per se). But 

hot grease may become “a deadly weapon if, in the manner of its use or intended 

use, it is capable of causing death or serious bodily injury.” See Cooper, 2020 WL 

5752920, at *8; TEX. PENAL CODE § 1.07(a)(17)(B). To determine whether hot 

grease is a deadly weapon, we may consider (1) any words or threatening actions by 

the defendant, including his proximity to the victim, (2) the weapon’s ability to 

inflict serious bodily injury or death, including the size, shape, and sharpness of the 
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weapon, and (3) the manner in which the defendant used the weapon. Johnson v. 

State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017). These are, however, merely 

factors used to guide a court’s sufficiency analysis and are not “inexorable 

commands.” Id.

The State need not establish that the use or intended use of the object actually 

caused death or serious bodily injury; only that “the manner” it was either used or 

intended to be used was “capable” of causing death or serious bodily injury. Moore 

v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017) (quoting Tucker v. State, 274 

S.W.3d 688, 691 (Tex. Crim. App. 2008)). Nor is the State required to prove that the 

actor actually intended death or serious bodily injury. Moore, 520 S.W.3d at 909; 

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Moreover, it “is not 

necessary” to admit the object or provide a detailed description of the object “when 

there is other evidence showing [the object] was capable of inflicting serious bodily 

injury in the manner in which it was used.” Cooper, 2020 WL 5752920, at *8. 

Injuries suffered by the victim can by themselves be a sufficient basis for inferring 

that a deadly weapon was used. Tucker, 274 S.W.3d at 691–92 (two-inch folding 

knife or key were objects “capable” of causing death or serious bodily injury); 

Johnson v. State, No. 05-19-00986-CR, 2021 WL 1248271, at *4 (Tex. App.—

Dallas Apr. 5, 2021, no pet.) (mem. op., not designated for publication) (butcher 

knife with a seven-inch blade used to hit complainant across the head and inflict 
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large gash was, in the manner of its actual use, capable of causing death or serious 

bodily injury). 

Here, the jurors heard testimony from which they could reasonably conclude 

that the hot grease was capable of causing injury or death. Tilma testified that 

Zapalac’s doctors admitted her to the hospital because of “the extent of her burn.” 

Tilma further explained that “[g]rease burns are very significant,” in that they 

continue to burn and “cook” a patient’s skin even after cleaning. Further, a grease 

burn may look “superficial on the outside,” but it can “just continue to get deeper in 

depth.” Tilma told the jury that if a grease burn is left untreated, it can “progress to 

a third-degree burn,” become infected, or require “extensive skin grafting.” She 

confirmed that the types of burns Zapalac suffered “have a very high rate of 

infection” and, if Zapalac had not sought treatment, “there is a good possibility that 

there could be deeper scars; multiple hospital visits, due to the fact that there was an 

infection; multiple OR visits, due to the depth of the burn and needing skin grafting.” 

Tilma also stated that she believed Zapalac’s grease burns were “permanently 

disfiguring” and would leave scars “probably for a good amount of time.” Tilma 

agreed that grease can be used as a deadly weapon. She told the jury that, based on 

her training and experience, a grease burn like Zapalac’s is capable of causing death 

depending “on the total body surface area” of the burn. 

Although the jury may not have believed that Zapalac’s burns were a serious 

injury, that did not preclude the jury from finding that the hot grease was capable, in 
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the manner of its use, of causing death or serious bodily injury. The burns were on 

her face, arm, and chest, each of which are vital areas that “would seem to carry at 

least some potential for resulting in a serious bodily injury . . . or death.” See Tucker, 

274 S.W.3d at 692. Indeed, at the time of trial, Zapalac’s scars remained visible on 

her arm, and she wore make-up daily to cover the scars on her face. Viewed in the 

light most favorable to the verdict, the evidence presented here showed that the hot 

grease was, in the manner of its actual use, capable of causing death or serious bodily 

injury. The evidence was, therefore, sufficient to support the deadly weapon finding. 

We overrule Limberg’s second issue. 

STATE’S CROSS-POINTS 

The State asserts five cross-points in which the State requests modification of 

the judgment to correct clerical errors in the trial court’s judgment. The State 

requests we modify the judgment to reflect the following: (1) the correct name of the 

offense for which Limberg was convicted, (2) that punishment was determined by 

the trial judge, not the jury, (3) that Limberg filed a written election for the trial judge 

to assess punishment, (4) the correct name of the attorney for the State, and (5) the 

correct degree of the felony for which Limberg was convicted. 

We have the power to modify a judgment to speak the truth when we have the 

necessary information to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 

26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. 

App.—Dallas 1991, pet. ref’d) (en banc). The record supports the requested 
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modifications and we, therefore, agree with the State that the judgment needs to be 

corrected. 

First, the record shows Limberg was convicted of “Aggravated Assault 

Causing Bodily Injury With a Deadly Weapon Family Violence” (i.e., seconddegree aggravated assault) under Section 22.02(a)(2) of the Texas Penal Code. The 

judgment, however, states that he was convicted of “Aggravated Assault 

Date/Family House SBI With Weapon” (i.e., first degree felony aggravated assault 

with a deadly weapon) under section 22.02(b)(1) of the penal code. The judgment 

should be modified to reflect the correct offense for which Limberg was convicted 

and the correct statute for the offense. Accordingly, we sustain the State’s first crosspoint and modify the trial court’s judgment to replace “Aggravated Assault 

Date/Family House SBI With Weapon” as the “Offense for which Defendant 

Convicted” with “Aggravated Assault Causing Bodily Injury With a Deadly Weapon 

Family Violence.” We further replace “22.02(b)(1) Penal Code” as the “Statute for 

Offense” with “22.02(a)(2) Penal Code.” 

Next, the State asks us to modify the judgment to reflect that the trial judge 

assessed punished. The record confirms that the trial judge assessed punishment. 

The judgment, however, states that the jury assessed punishment. The judgment 

should be modified to reflect the truth. We, therefore, modify the trial court’s 

judgment to state that the trial judge assessed punishment by replacing “JURY” with 

“Trial Court” as to “Punishment Assessed by.” 
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Similarly, the State asks us to reform the judgment to reflect that Limberg 

filed a written election for the trial judge to assess punishment. The record confirms 

Limberg’s election for the trial judge to assess punishment, but the judgment does 

not reflect that election. Instead, the judgment states that the jury assessed 

punishment pursuant to Limberg’s election. We, therefore, modify the trial court’s 

judgment by removing the “X” selecting the paragraph designating that Limberg 

made an election for the jury to assess punishment and adding an “X” selecting the 

paragraph that Limberg filed a written election for the trial judge to assess 

punishment. We sustain the State’s third cross-point. 

In its fourth cross-point, the State asks the Court to modify the judgment to 

reflect the correct name of the attorney who represented the State at trial. The 

judgment reflects that Michelle Shugart represented the State during Limberg’s trial. 

The record shows, however, that Annelise DeFrank prosecuted the case on behalf of 

the State of Texas. We sustain the State’s fourth cross-point, and modify the trial 

court’s judgment by replacing Michelle Shugart with Annelise DeFrank as the 

attorney who represented the State at trial. 

Finally, the State asks the Court to modify the judgment to reflect the correct 

degree of the felony for which Limberg was convicted. The judgment states that the 

offense for which Limberg was convicted is a first-degree felony. The record 

reflects, however, that Limberg was convicted of aggravated assault causing bodily 

injury with a deadly weapon, family, which is a second-degree felony. We sustain 
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the State’s fifth cross-point and modify the judgment to change the “Degree of 

Offense” from “1st Degree Felony” to “2nd Degree Felony.” 

In reviewing the record, we discovered that the signature line on the judgment 

lists the wrong judge. The Honorable Michael R. Snipes presided over this case, but 

the typed name under the signature line lists the Honorable Dominique Collins as 

the presiding judge. The signature is illegible. During oral argument, Limberg’s 

counsel agreed that Judge Snipes presided at trial. Counsel further agreed to 

reformation of the judgment to reflect that Judge Snipes presided at trial and signed 

the judgment. We, therefore, modify the judgment to replace Judge Dominque 

Collins from the signature line with Judge Michael R. Snipes as the presiding judge. 

See Asberry, 813 S.W.2d at 529–30 (appellate court may act sua sponte to reform 

incorrect judgments). 

CONCLUSION 

We overrule Limberg’s appellate issues, sustain the State’s cross-points, and 

affirm the trial court’s judgment as modified. 

191231F.P05 

 

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

EMMANUEL LYNN LIMBERG, 

Appellant 

No. 05-19-01231-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the Criminal District 

Court No. 4, Dallas County, Texas 

Trial Court Cause No. F-1875450-K. 

Opinion delivered by Justice PartidaKipness. Justices Myers and Garcia 

participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

MODIFIED as follows: 

 Replace “Aggravated Assault Date/Family House SBI With 

Weapon” with “Aggravated Assault Causing Bodily Injury With 

a Deadly Weapon Family Violence” as the “Offense for which 

Defendant Convicted.” 

 Replace “22.02(b)(1) Penal Code” with “22.02(a)(2) Penal 

Code” as the “Statute for Offense” 

 Replace “JURY” with “Trial Court” as to “Punishment Assessed 

by.” 

 Remove the “X” selecting the paragraph designating that 

Appellant made an election for the jury to assess punishment and 

adding an “X” selecting the paragraph that Appellant filed a 

written election for the trial judge to assess punishment. 

 Replace Michelle Shugart with Annelise DeFrank as the attorney 

who represented the State at trial. 
 –23– 

 Change the “Degree of Offense” from “1st Degree Felony” to 

“2nd Degree Felony.” 

 Change the name of the presiding judge on the signature line 

from Judge Dominque Collins to Judge Michael R. Snipes. 

As REFORMED, the judgment is AFFIRMED. 

Judgment entered this 19th day of October 2021.