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 TE XAS, 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 app eals 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, sust ain the State’s cross-points, modify the judgment as requested by the State, a nd affirm the judgment as modified.
BACKGROUND Kristen Zapalac, the complainant, me t Limberg in 2017 while working as the front desk supervisor at a hotel Limber g frequently stayed at while in Dallas on business. The pair began dating and, by early to mid-December, Limberg was–2– primarily staying with Zapalac at her apar tment instead of getting a hotel room when he was in town. In February 2018, Limber g had the apartment lease transferred from Zapalac’s roommate to him. Zapalac was a te nant 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, Limb erg 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 to ld 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 c ooking while Zapalac talked and, when she finished talking, she asked Limberg if he heard he r. Limberg replied, “Yeah, whatever. Are you done?” He then placed the cooked b acon 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. Zapa lac testified that when Limberg heard the “click” from her turning off the stove, Li mberg “spun around,” saw she had the pan of grease in her hand, “wre nched” the pan from her hand and, while holding it like he was performing a backhand with a tenn is racket, “lobbed” the pan’s grease onto Zapalac. As Limberg was thro wing 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–3– hot grease hit her skin. A few minutes later, after the shock of the event wore off, Zapalac “felt like [s he] 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 tr ial, Zapalac expresse d 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 Li mberg briefly came back inside the house, Zapalac told him to take all of his bel ongings 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, Zapala c called two friends for comfort, called a third friend to ask for a ride to the hosp ital, and then FaceTi med her mother. When Zapalac’s parents saw her bur ns, 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 coul d not put on a shirt because the pain from her burns “hurt too bad.” Za palac told the 911 operator he r “face was peeling off.” At trial, she explained that her face feltlike 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 to ld the jury that sh e feared the grease–4– would permanently scar her skin and di sfigure her, and sh e 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. Dix on testified that this call was “unique” because burn calls are rare. He also explai ned that this was a “very bad” burn call that presented a “challenging situation.” Wh en he first saw Za palac, Dixon noticed that she had second-degree burns on part of he r face and left arm. He knew they were second-degree burns because the burn ha d “blistered up.” Zapalac told the paramedics that she got burned from gr ease. Dixon’s written narrative in his Prehospital Care Report Summary states th at Zapalac reported, “My boyfriend put hot bacon grease on me.” Dixon saw the sk illet on the ground in the kitchen and saw grease everywhere, including on her body. Di xon and his partner put a burn sheet on Zapalac to keep the burns cool and mois turized. They wanted to get her to the hospital as quickly as possible. With any bu rn, paramedics “are in a hurry” to get the patient to the burn unit, but even more so with second a nd third degree burns. Zapalac testified that it was “difficult” for her when th e paramedics placed the burn wrap on her, describing the wrap as “p ainful 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 to ok Zapalac to a private room where nurses, police officers, and doctors asked que stions, took pictures of her injuries, and–5– treated her burns. Zapalac “couldn’t stop crying” because the grease burns caused her to feel like she “was on fire.” She desc ribed the pain as “the most pain I have ever felt.” She told the jury that the pain rated a nine out of te n. Zapalac received pain medication and an IV wh en she arrived at the hospita l. After about ten minutes, Zapalac was calming down em otionally, “wasn’t hyperventilating as hard,” and began “feeling groggy.” But the pain medication was onl y helping with the pain “very, very, very minimally.” At the hospital, blisters formed on Za palac’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 bliste rs after medical personnel removed the blisters a nd “it hurt so much.” Emergency trauma nurse Arika Tilma treat ed 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 a nd Silvadene, a healing ointment. Tilma testified that they use Silvadene in cases where the burns are deeper burns and more severe. Medical personnel cl eaned her burn wounds with scrub brushes to remove the grease and blisters, and ad mitted her to the hospital because of the extent of the burns. At one point during her treatment, Za palac 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 a nd begged the nurse to stop. The nurse–6– administered pain medication and resume d scrubbing. The pain medication did not work immediately so Zapalac pleaded withthe 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, shoul der, left side of her chin, and chest. Tilma noted that while three-and-a-half pe rcent is not a large portion of Zapalac’s body, Zapalac’s burn percentage “still is signi ficant, 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 reporte d the same events to responding Dallas Police Department Officer Tyler Prothro. Ti lma 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 Zapala c’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–7– injury, that was the one that took the longest to heal a nd was most as -- I felt pain there longer than an ywhere 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 da ys after the incident s how 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 pi nk underneath. Photos of her arm taken two weeks before trial s how visible scarring from the burns. The Dallas County grand jury indicted Limberg on one count of aggravated assault causing serious bodily injury unde r section 22.02(b)(1) of the penal code. The indictment charge d the aggravated assault as a first-degree felony, alleging a family relationship betwee n Limberg and Zapalac, and alleging Limberg used a deadly weapon, hot grease, during the commi ssion 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 causi ng 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 app eal. 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 aggravat ed assault with a deadly weapon. We–8– review alleged charge erro r 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 re quires 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 a ggravated assault. The jury charge included instructions and a question on that offense as well as instructions and a question on second-degree aggrav ated assault. Limberg argu es that the jury charge should not have included second-degree aggr avated assault becau se the indictment alleged only that he used a deadly w eapon, but a conviction for second-degree aggravated assault can be ba sed on either the use or exhi bition of a deadly weapon. According to Limberg, “[s]econd-degr ee 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 th e 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–9– 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 allege d 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 obj ection, he has failed to preserve error on this complaint. T EX

. R. A PP

. 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 c ontention that second-degree aggravated assault is not a lesser-include d offense of first-degree aggr avated 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 th at requires proof beyond a reasonable doubt of both (a) the co mmission of an assault by intentionally,–10– 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. T EX

. P ENAL C ODE §§ 22.01(a)(1) (assault); 22.02(a) (second-degree aggravated assault). An aggravated assault is a firs t-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 defi ned by section 71.0021(b) of th e family code, are family members as defined by section 71.003 of th e family code, or are members of the same household as defined by sec tion 71.005 of the family code. T EX

. P ENAL C ODE § 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 bod ily injury to Zapalac by throwing hot grease on Zapalac, (2) used a deadly we apon, hot grease, during the commission of the assault, and (3) “has and has had a da ting relationship” with Zapalac and was a member of Zapalac’s fa mily and household. T EX

. P ENAL C ODE § 22.02(b)(1). Under that indictment, to convict Limberg of firs t-degree aggravated assault, the State was required to prove beyond a reasonable doubt th at Limberg (1) assaulted Zapalac, (2)–11– used a deadly weapon during the commissi on 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 T EX

. P ENAL C ODE § 22.02(b)(1). In contrast, to convict Limberg of sec ond-degree aggravated assault, the State was required to prove only that Limberg assaulted Zapalac a nd either (1) caused Zapalac serious bodily injury or (2) used 1 a deadly weapon during the commission of the assault. See T EX

. P ENAL C ODE § 22.02(a). At trial, the court charged the ju ry on first-degree and second-degree aggravated assault. The second-degree ch arge sought conviction only for causing bodily injury and using a deadly weapon. T EX

. P ENAL C ODE §§ 22.01(a)(1), 22.02(a)(1). The State did not seek convic tion for second-degree aggravated assault by causing serious bodily injury without the use of a deadly weapon. T EX

. P ENAL C ODE §§ 22.01(a)(1), 22.02(a)(2). An offense will be a lesser-i ncluded 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. T EX

. C ODE C RIM

. P ROC . art. 37.09(1). To determ ine whether an offense qualifies as a lesser-included offense, courts use the c ognate-pleadings approach. Ex parte Watson , 306 S.W.3d 259, 273 (Tex. Crim. A pp. 2009) (op. on reh’g). An offense is a lesser-included offense of a nother offense if the indictment for the

1 The indictment did not allege exhibition of a deadly weapon, only use of a deadly weapon.–12– greater-inclusive offense either: (1) alleges all of the elements of the lesser-included offense, or (2) alleges elements plus f acts from which all of the elements of the lesser-included offens e may be deduced. Id. If this analysis supports a determination that the requested lesser offense is a lesser-i ncluded offense, the court will move to the second step of the test and consider wh ether 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 di fference between the first degree and second degree offenses was the degree of in jury. To convict on either offense, the jury was required to find use of a dead ly 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 ca used serious bodily injury, then the jury would have convictedfor first degree aggravated assault. But the jury found that Limberg only caused bodily injury and convicted on the second degree offense. Bodily injury is enco mpassed within serious bodily injury. See Ortiz
v. State , 623 S.W.3d 804, 807 (Tex . Crim. App. 2021) (“a ggravated 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 viol ence in the second-degree offense instructions even though that was not required for conviction on the less er-included offense. Neither Limberg nor the State complain of this issue on appeal.–13– WL 1018196, at *1 (Tex. App.—Dallas Fe b. 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). A lthough the indictment alleged serious bodily injury, the elements of bodily injury to support the lesserincluded offense were necessarily encompa ssed 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 he re. Under these facts, we conclude the indictment alleged all of the elements of the lesser-included o ffense as charged at trial. Step one of the anal ysis is, therefore, met. We next consider whether a rational jurycould 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 inju ry as “physical pain, illne ss, or any impairment of physical condition.” T EX

. P ENAL C ODE § 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 lo ss 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 functio n of any bodily member or organ.” It was–14– undisputed, however, that Zapalac suffered phys ical pain and, thus, bodily injury. Zapalac testified to the “excruciating” pa in she endured from the burns and to the severe and lingering pain she suffered in the days, we eks, and months after the incident. Under this record, we conclude second-degree felony aggravated assault was a lesser-included offe nse and was properly charge d 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 challenge s the sufficiency of the evidence to support the deadly weapon finding. Specifi cally, Limberg maintains the evidence is insufficient because the State did not elic it testimony that grease constituted a deadly weapon in this case. We review the suffici ency 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 verdic t and determine whether any ra tional 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–15– 380, 382 (Tex. App.—Fort Worth 2015, pet. ref’d). The Texas Pe nal Code defines “deadly weapon” as “(A) a firearm or anything manife stly 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 us e is capable of causing death or serious bodily injury.” T EX

. P ENAL C ODE § 1.07(a)(17). The “use” element can be satisfied by “ any employment of a deadly weapon, ev en 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 qu otation 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 pe r se because it is not an object “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” T EX

. P ENAL C ODE § 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) (kni fe 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; T EX

. P ENAL C ODE § 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–16– weapon, and (3) the manner in whic h 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 suffic iency analysis and are not “inexorable commands.” Id. The State need not establish that the us e 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. A pp. 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 them selves 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 h it complainant across the head and inflict–17– large gash was, in the manner of its actua l use, capable of causing death or serious bodily injury). Here, the jurors heard testimony from wh ich 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 bur ns 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 greas e 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 Zapa lac suffered “have a very high rate of infection” and, if Zapalac had not sought treatment, “the re 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 de pth of the burn and needing skin grafting.” Tilma also stated that she believed Za palac’s grease burns were “permanently disfiguring” and would leave scars “pro bably for a good amount of time.” Tilma agreed that grease can be usedas a deadly weapon. She to ld the jury that, based on her training and experience, a grease burn lik e 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–18– the manner of its use, of causing death or serious bodily inju ry. The burns were on her face, arm, and chest, each of which ar e vital areas that “would seem to carry at least some potential for resulting in a se rious bodily injury . . . or death.” See Tucker , 274 S.W.3d at 692. Indeed, at the time of tria l, Zapalac’s scars remained visible on her arm, and she wore make-up daily to c over the scars on her face. Viewed in the light most favorable to the verdict, the ev idence 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, th erefore, 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 th e 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 Limber g 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. T EX

. R. A PP

. 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–19– modifications and we, therefore, agree withthe State that the judgment needs to be corrected. First, the record shows Limberg wa s 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 Te xas Penal Code. The judgment, however, states that he wa s 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 su stain the State’s first crosspoint and modify the trial court’s judg ment to replace “Aggravated Assault Date/Family House SBI With Weapon” as the “Offense for which Defendant Convicted” with “Aggravated Assault Causi ng 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 ju dgment to reflect that the trial judge assessed punished. The record confirms that the trial judge assessed punishment. The judgment, however, states that th e 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 a ssessed punishment by replacing “JURY” with “Trial Court” as to “P unishment Assessed by.”–20– 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 th e paragraph designating that Limberg made an election for the jury to assess punishment and a dding 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 as ks 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 repr esented the State during Limberg’s trial. The record shows, however, that Annelis e 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 modi fy 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 fe lony. The record reflects, however, that Limberg was convict ed of aggravated assault causing bodily injury with a deadly weapon, family, wh ich is a second-degree felony. We sustain–21– the State’s fifth cross-point and modify the judgment to change the “Degree of Offense” from “1st Degree Fe lony” 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 lis ts the Honorable Dominique Collins as the presiding judge. The signature is ille gible. During oral argument, Limberg’s counsel agreed that Judge Snipes presidedat 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 Mich ael R. Snipes as th e presiding judge. See Asberry , 813 S.W.2d at 529–30 (appe llate court may act su a 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–22– 

# 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, Dall as 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 da te, the judgment of the trial court is MODIFIED as follows:

 Replace “Aggravated Assault Date/Family House SBI With Weapon” with “Aggrava ted Assault Causing B odily Injury With a Deadly Weapon Family Violence” as the “Offense for which Defendant Convicted.”

 Replace “22.02(b)(1) Penal C ode” 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 th e paragraph designating that Appellant made an election for th e jury to assess punishment and adding an “X” selecting the para graph 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.