NO. 07-10-00008-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL C 

OCTOBER 5, 2010 

JAVIER YEBRA, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 69TH DISTRICT COURT OF MOORE COUNTY; 

NO. 4249; HONORABLE RON ENNS, JUDGE 

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

A Moore County jury found appellant, Javier Yebra, guilty of aggravated assault 

with a deadly weapon1 and assessed a fifty-year sentence of incarceration. He appeals 

his conviction contending that the evidence was factually insufficient to support a finding 

that he used a deadly weapon and that he acted with the requisite intent. He also 

maintains that the State’s pretrial amendment of the indictment was impermissible. We 

will affirm. 

 1 TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2009). 
2 

Factual and Procedural History 

 Complainant, Darlene Flores, went with her roommate, Rosa Aguirre, to a bar in 

Cactus, Texas. While there, Flores met appellant. Flores bought him a beer, and the 

two played pool. During their interaction, appellant told her that if she “did him wrong 

that he had a knife.” Flores and Aguirre left the bar at about 2:00 a.m. Though 

uninvited and unbeknownst, appellant followed them. 

 At this point, the details regarding the sequence of the night’s events vary 

somewhat among the witnesses. Flores recalled going to her room to change clothes. 

Appellant, after having somehow gained entry to the house, tried to get into her room. 

Flores slammed the door to prevent him from doing so, changed clothes, and then went 

outside to talk to him. Appellant accused Flores of having stolen CDs from him. 

Appellant then attacked Flores. Flores remembered being on the ground as appellant 

was kicking and punching her. Flores had fallen to the ground near some beer bottles 

and picked up a number of these bottles and threw them at appellant. She also hit him 

in the head with a bottle as he continued hitting her. She got to her feet and ran around 

the car toward the house. She tried to get inside but Aguirre would not open the door 

because appellant had tried to punch her as well. 

 According to Flores, appellant again violently approached her. Flores presumed 

that it was during this stage of the altercation that appellant stabbed her although she 

was unaware of her stab wounds until later when she was inside receiving medical care 

from paramedics. Flores did not see a knife during any stage of the altercation. She 

testified that, as a result of the wounds, she had to go to the hospital. She testified that 
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she underwent surgery and that once, during her approximately three-week stay in the 

hospital, she was transferred to ICU after she had stopped breathing. Flores admitted 

to having drunk a great deal that night and that her recollection of the night came only in 

“bits and pieces.” 

 Aguirre testified that after she and Flores returned home, Flores and appellant 

left together in appellant’s car, perhaps to search for more beer, and were gone for 30 

to 45 minutes. When they returned, appellant came into the house but Aguirre directed 

him to go outside. He complied and waited outside for Flores for a little while then came 

back in the house and tried to get in the bedroom. Aguirre again told him to leave the 

house. Appellant went back outside and waited on the porch to talk to Flores. 

 Flores joined him while Aguirre remained inside. Aguirre heard Flores and 

appellant arguing. She looked outside and saw appellant punching Flores by the front 

door; she did not see him stab her. Aguirre moved to go out and assist Flores but was 

denied exit by appellant deliberately pushing the door closed. Appellant also tried to 

punch Aguirre, causing damage to the screen door. She explained that only appellant 

and Flores were outside the house that night. Appellant eventually left, and Aguirre 

helped Flores inside and noticed that she was bleeding “bad.” 

 Appellant was charged with aggravated assault with a deadly weapon. On 

September 21, 2009, over two and a half months before trial began, the trial court 

granted the State’s motion to amend the indictment. The two-day trial began on 

December 8. At trial, Flores and Aguirre provided their foregoing accounts of the night. 

Aguirre’s fifteen-year-old twin children both testified that only appellant and Flores were 
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outside that night. Neither saw appellant stab Flores. The responding officer testified 

that a brief search of the scene yielded no knife, and no knife was found on appellant. 

 No one disputes that there was an altercation between appellant and Flores. 

Likewise, it is undisputed that Flores sustained serious wounds that night. According to 

Dr. Thomas Parsons, a forensic pathologist who examined photographs of the wounds 

and a medical report of a CT scan, the wounds “were most likely caused by a knife or 

knife-like object.” He described the wound characteristics that led him to that 

conclusion and explained the risks posed by the fact that Flores’s liver was lacerated. 

 Appellant did not testify. In his defense, he recalled Aguirre’s daughter who 

testified that, before Flores went outside to talk to appellant, Flores said to her boyfriend 

on the phone that she was going outside to “kick his A.” 

 On December 9, the jury returned its guilty verdict. Appellant timely appealed 

and brings to this Court two issues. In his first issue, he challenges the factual 

sufficiency of the evidence. He focuses on the evidence to prove that he used a deadly 

weapon but also challenges the element of intent. In his second issue, he contends the 

pretrial amendment of the indictment was impermissible as one that prejudiced his 

substantial rights by impairing his ability to prepare his defense. 

Factual Sufficiency of the Evidence 

Standard of Review

 We begin our factual sufficiency review under the assumption that the evidence 

is legally sufficient. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009). In a 
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factual sufficiency review, we view all of the evidence in a neutral light to determine 

whether the jury's verdict of guilt was rationally justified. See Watson v. State, 204 

S.W.3d 404, 415 (Tex.Crim.App. 2006). We give deference to the trier of fact’s 

determination if supported by evidence and may not order a new trial simply because 

we may disagree with the verdict. Id. at 417. We may reverse for factual insufficiency 

only when there is some objective basis in the record that demonstrates that either (1) 

the evidence supporting the verdict is so weak that the verdict seems clearly wrong and 

manifestly unjust, or (2) the great weight and preponderance of the evidence contradicts 

the jury’s verdict. See Laster, 275 S.W.3d at 518. An appellate opinion addressing 

factual sufficiency must include a discussion of the most important evidence that 

appellant claims undermines the jury’s verdict. Simms v. State, 99 S.W.3d 600, 603 

(Tex.Crim.App. 2003). When a defendant’s version of the facts conflicts with other 

evidence, it is the jury’s prerogative to judge the credibility of the evidence and to 

ascribe the weight to be given to the evidence. See Jones v. State, 944 S.W.2d 642, 

648–49 (Tex.Crim.App. 1996). 

Deadly weapon finding

 Appellant maintains that Flores’s wounds could have been inflicted accidentally 

or by a third party, though no third party was identified. Appellant relies on the following 

evidence or lack of evidence to support his contention that the evidence is factually 

insufficient to support the deadly weapon finding: (1) no testimony that appellant was 

seen in possession of a knife, (2) no knife recovered from scene or from appellant, (3) 

no testimony from witnesses that anyone saw appellant stab Flores, (4) witness 
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testimony limited to seeing appellant punch or hit Flores, (5) Flores’s lack of recollection 

of being stabbed, (6) inconsistencies between Flores’s testimony and statement to 

police, (7) evidence of broken beer bottles on the ground during admitted altercation in 

which Flores was on the ground, and (8) the fact that witnesses to the altercation never 

went outside to see if another person was present. 

 Based on the “possibilities” posed by the evidence,2

 appellant urges this Court to 

find the evidence factually insufficient. While we do note that the state of the evidence 

is such that a number of things could have happened that night, we are not charged 

with determining the plausibility of alternate theories. While the existence of other 

reasonable hypotheses may be relevant to our review of the factual sufficiency of the 

evidence, it is not determinative. See Wilson v. State, 7 S.W.3d 136, 141 

(Tex.Crim.App. 1999). In fact, we “may not find the evidence to be factually insufficient 

merely because there are ‘reasonably equal competing theories of causation.’” 

Steadman v. State, 280 S.W.3d 242, 247 (Tex.Crim.App. 2009) (quoting Goodman v. 

State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001)). The evidence cited by appellant as 

supporting alternative theories of how Flores sustained her injuries do not form an 

objective basis demonstrating that the great weight and preponderance of the evidence 

contradicts the jury’s verdict. See Laster, 275 S.W.3d at 518. 

 Turning now to our review of the evidence supporting the State’s allegations 

rather than alternative theories, we note that the State need not introduce the object into 

 2 To the extent that appellant advances his argument in the “reasonable 

alternative hypothesis” paradigm, we note that such construct was overruled in Geesa 

v. State, 820 S.W.2d 154, 161 (Tex.Crim.App. 1991).
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evidence for the trier of fact to find that such object was a deadly weapon. See Morales 

v. State, 633 S.W.2d 866 (Tex.Crim.App. 1982). Even without a description of the 

weapon, the victim’s injuries can, by themselves, be a sufficient basis for inferring that 

an appellant used a deadly weapon. See Tucker v. State, 274 S.W.3d 688, 691–92 

(Tex.Crim.App. 2008); see also Morales, 633 S.W.2d at 868–69 (photograph of deep 

slash requiring stitches and running from below victim’s earlobe across her cheek to the 

corner of her mouth was sufficient to show that a deadly weapon was used). 

 Here, there is evidence that Flores suffered five stab wounds that required 

surgery and a three-week stay in the hospital. At one point, she was transferred to ICU 

when she stopped breathing. Further, Dr. Parsons, an experienced forensic 

pathologist, testified that he examined photographs of the wounds and a medical report 

of a CT scan performed on Flores. In his opinion and based on his review of the 

photographs and medical report, Flores’s wounds “were most likely caused by a knife or 

knife-like object.” He detailed how the elasticity of the skin generally causes such 

wounds to have the “bowed” appearance visible in the photographs. He testified, too, 

that the wounds displayed characteristics of having been inflicted by an object having 

one sharp edge. He also explained how the linear cuts on the shirt Flores was wearing 

were also consistent with having been caused by a knife or knife-like object. He 

testified that Flores’s injuries could have caused death. One of the wounds lacerated 

her liver, which required surgery and posed a serious risk of severe blood loss and 

infection within the abdominal wall. 
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 When presented with the theory that a broken bottle caused Flores’s injuries, 

Parsons responded that injuries inflicted by broken bottles “typically have a fairly 

pronounced arc of circumference” not present in Flores’s wounds. While he 

acknowledged that it was theoretically possible that the wounds were inflicted by a 

piece of a bottle, if a very specifically-shaped shard of glass was used, Parsons 

generally discounted the theory. Though there was no evidence identifying the 

instrument or object used, Parsons specifically testified that a “deadly weapon” caused 

Flores’s injuries. See Tucker, 274 S.W.3d at 692. So, based on Flores’s account of her 

injuries, medical records, photographs depicting her wounds and blood loss, and expert 

medical testimony regarding the nature and source of the wounds, the jury could have 

reasonably found that appellant used a deadly weapon. 

 The absence of evidence specifically identifying or describing the weapon used 

does not render the foregoing evidence of a deadly weapon so weak that the verdict is 

clearly wrong or manifestly unjust. See Laster, 275 S.W.3d at 518. The evidence 

supporting the deadly weapon finding is factually sufficient. We overrule this issue. 

Intent

 In a less-developed contention, appellant maintains that the evidence is 

insufficient to show that he acted with the requisite intent. It is an offense to 

intentionally, knowingly, or recklessly cause injury to another. TEX. PENAL CODE ANN. § 

22.01(a)(1). Again, appellant points to the possibility that Flores’s wounds were inflicted 

accidentally or by a third party. The State has not specifically addressed the 

contentions regarding intent by brief or by oral argument. 
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 The only evidence of appellant’s intent, he argues, are Flores’s wounds. 

However, there is also evidence that the two were arguing and cursing outside before 

the altercation and that appellant hit and punched Flores and chased her around the 

car. Further, Flores testified that appellant accused her of stealing from him. Intent 

may be inferred from the circumstances surrounding the act. See Guevara v. State, 

152 S.W.3d 45, 50 (Tex.Crim.App. 2004). Factually sufficient evidence supports the 

finding that appellant acted with the requisite intent. We overrule this issue. 

Amendment of Indictment 

 The indictment originally charged that appellant used a “deadly weapon, to wit: a 

knife.” Over two and a half months before trial and over objection, the trial court allowed 

the State to amend the indictment to allege that appellant used a “deadly weapon, to 

wit: a knife or some unknown object.” Citing Flowers v. State, 815 S.W.2d 724, 729 

(Tex.Crim.App. 1991), appellant argues that the amendment prejudiced his substantial 

rights by impairing his ability to present a defense to the deadly weapon allegations. 

Applicable Law and Standard of Review

 Article 28.10 governs the amendment of an indictment and provides that, “after 

notice to the defendant, a matter of form or substance in an indictment or information 

may be amended at any time before the date the trial on the merits commences.” TEX.

CODE CRIM. PROC. ANN. art. 28.10(a) (Vernon 2006). However, “[a]n indictment or 

information may not be amended over the defendant’s objection as to form or substance 

if the amended indictment or information charges the defendant with an additional or 
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different offense3 or if the substantial rights of the defendant are prejudiced.” Id. art. 

28.10(c). In Flowers, the Texas Court of Criminal Appeals determined that a review of 

the entire record is appropriate to determine whether an amendment was prejudicial 

under the “substantial rights” provision of article 28.10(c). 815 S.W.2d at 729. Based 

on appellant’s position, then, we review the record to determine whether the pretrial 

amendment impaired his ability to prepare his defense. 

Discussion

 Appellant incorporates his factual insufficiency points to support his contention 

that the amendment was prejudicial to his substantial rights. Appellant adds that the 

amendment “substantively altered the nature of the weapon that was allegedly used so 

that, in essence, any object could qualify in this case as a ‘deadly weapon.’” 

 As we have concluded, the evidence at trial was factually sufficient to support the 

deadly weapon finding. And nothing in the record seems to suggest the amendment 

impaired appellant’s ability to prepare a defense. His defense centered on testimonial 

inconsistencies and evidentiary gaps leaving open the possibilities that Flores was 

stabbed accidentally or by a third party. The amendment arguably drew attention to the 

fact that the State was not certain of the precise nature of the object used. 

 Nor did it have to be; again, the State need not introduce the object used as a 

deadly weapon. See Tucker, 274 S.W.3d at 691–92. Further, the amendment did not 

appear to alter the State’s theory although it could be said to broaden or alter the scope 

 3 A different offense, as contemplated by article 28.10(c), means a different 

statutory offense. Flowers, 815 S.W.2d at 727. Appellant does not specifically 

challenge the amendment in terms of charging an additional or different offense. 
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of evidence available to prove appellant’s use of a deadly weapon. With respect to the 

scope of evidence, we return to Flowers: 

Changing an element, such as the name of the owner, changes the 

evidence needed to prove the offense. If such amendment is made on the 

basis of the same incident upon which the original indictment is based, it 

will, in most cases, be permissible under the substantial rights provision 

[of article 28.10(c)] after a review of the record for prejudice. 

815 S.W.2d at 729. Here, the amendment related to the same incident forming the 

basis of the original indictment. Appellant’s defense focusing on the fact that no one 

ever saw a knife and urging the possibility that the injuries could have been caused by 

beer bottles or an unidentified third party, it seems, would have remained the same 

regardless of the amendment.4 Further, the jury was charged on the applicable 

statutory definition of “deadly weapon.” See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) 

(Vernon Supp. 2009). Finally, we note that appellant had approximately two and onehalf months’ notice of the amendment, a total of seventy-eight days. The pretrial 

amendment did not violate article 28.10(c) by prejudicing appellant’s substantial rights. 

We overrule appellant’s second issue. 

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 The amended language “or some unknown object” actually appears twice in the 

indictment. Following the amendment, the indictment alleged that appellant 

intentionally, knowingly, or recklessly cause[d] bodily injury to [ ] Flores by 

cutting or stabbing the said [ ] Flores with a knife or some unknown object 

and the Defendant did then and there use or exhibit a deadly weapon, towit: a knife or some unknown object, during the commission of said 

assault. 

So, when the amended indictment is read in its entirety, the amendment becomes less 

broad in that the State must still prove that the object, even if unknown, cut or stabbed 

Flores. That is, the scope of the evidence available to prove use of a deadly weapon is 

not as wide as it might, at first glance, appear. With that in mind, it would appear that 

appellant’s defensive theory would have to change little to address the amendment. 
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Conclusion 

 Having overruled appellant’s issues, we affirm the judgment of the trial court. 

 Mackey K. Hancock 

 Justice 

Do not publish.