Sanders v. State

• Decision Date: 12 October 2011
• Docket Number: No. 02–09–00221–CR.,02–09–00221–CR.
• Citation: 346 S.W.3d 26
• Parties: Thoys Dewayne SANDERS, Appellantv.The STATE of Texas, State.
• Court: Texas Court of Appeals

346 S.W.3d 26

Thoys Dewayne SANDERS, Appellant

v.The STATE of Texas, State.

No. 02–09–00221–CR.

Court of Appeals of Texas, Fort Worth.

May 5, 2011.Discretionary Review Refused Oct. 12, 2011.

Richard C. Kline, Fort Worth, TX, for Appellant.Joe Shannon, Jr., Crim. Atty., Charles M. Mallin, Chief of the Appellate Section, Gregory A. Eyster, Molly Buckman, Lesley Sylvan, Asst. Crim. Dist. Attys., for Tarrant County, Fort Worth, TX, for State.PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

A jury convicted appellant Thoys Dewayne Sanders of assault. The trial court assessed punishment at 270 days' confinement and probated that sentence for two years, placing Sanders on community supervision. The court also required Sanders to pay $21,541 in restitution. In three issues, Sanders contends that the evidence is insufficient to prove he assaulted the alleged victim, that the trial court abused its discretion by assessing the restitution amount, and that he received ineffective assistance of counsel at trial. We will affirm.

II. BACKGROUND

Leah Williams, who lived with her mother and Sanders, her stepfather, entertained friends on the night of Saturday, April 21, 2007. Sara Grauerholz, Amanda Sessions, Jeremiah Langen, and Justin Henninge, the alleged victim in this case, were Williams's guests. Williams and her friends smoked marijuana and drank alcohol that evening. They eventually fell asleep in different rooms of the residence's garage apartment.

Early the next morning, Williams's mother woke her up and told her that Sanders was angry and that she and her friends needed to leave. Williams's mother was also upset because someone's car was blocking her car in the driveway. The layout of the garage apartment requires one to walk down the stairs and exit through the garage, where Sanders kept his cabinet-making workshop. As Williams and her friends began to leave, Williams and Grauerholz walked outside as Sanders quickly passed them and entered the garage. At that moment, Sanders encountered Henninge. That encounter led to assault charges against Sanders.

A. Justin Henninge

According to Henninge, he was woken when Williams's mother confronted Williams that morning. He said that Williams's mother said, “Wake up. Wake up. [Sanders] is angry. [Sanders] is mad. You have to leave.” Henninge testified that he, Grauerholz, and Williams walked down the stairs of the garage apartment, attempting to exit the garage. By Henninge's account, as soon as Grauerholz and Williams left the garage, Sanders came into the garage and, using his arm, “pinned [Henninge] against the wall.” Henninge said, “from then I woke up to [Grauerholz] yelling.” Henninge said that because he was knocked unconscious by Sanders, he did not really remember much of anything from the encounter other than Grauerholz yelling “You hit my boyfriend.” Henninge and the prosecutor re-enacted Henninge's account of the encounter with Sanders for the jury. Henninge said that despite having smoked marijuana the night before, he was sober when these events happened. At some point, police and EMT arrived on the scene and Henninge was taken to the hospital. Henninge did not remember talking with a police officer and did not remember riding to the hospital, but he did remember being placed on a stretcher.

The next thing Henninge vividly remembered was getting an MRI at the hospital. Henninge said Sanders's actions left a huge bruise on one side of his face, another on the back of his head, and another on the opposite side of his face. The State introduced pictures of these injuries, and Henninge testified that they were accurate depictions of the injuries he had sustained from his encounter with Sanders. Henninge also averred that Sanders had caused him to have a black eye, multiple facial rashes and abrasions, and internal bleeding of the brain. Henninge testified that the hospital performed multiple scans, including MRIs and X-rays.

B. Sara Grauerholz

Much like Henninge's account, Grauerholz testified that she, Henninge, and a few others stayed with Williams that night. As the morning approached, Williams's mother woke them all, mildly irritated that Grauerholz's vehicle was blocking hers. According to Grauerholz, Williams's mother informed them that Sanders was upset. Grauerholz recounted the noise she heard when she left the garage and was outside, “[W]e heard a noise against a garage door.... A slam or something hitting a garage door.” Grauerholz said she immediately turned toward the garage and saw Henninge lying on the floor not moving. She said that Sanders was standing over Henninge. She and Williams attempted to carry Henninge to her car, but Williams's mother came out, told them to stay, and informed them that 9–1–1 had been called. Grauerholz also testified that she believed Henninge was sober that morning. She said that she asked Sanders why he had hit her boyfriend and that Sanders simply went upstairs without responding. Sanders also did not assist Henninge despite Henninge's injuries.

C. Jason Bowman

Jason Bowman, an EMT basic paramedic, responded to the request for medical assistance that morning. Bowman said that when he arrived and encountered Henninge, Henninge appeared confused. Bowman averred, given his experience as an EMT paramedic, that Henninge did not appear high on drugs or alcohol. He also said that Henninge was injured. Based on his training and experience, Bowman believed that Henninge's injuries appeared to be the result of an assault. Bowman testified that he initially diagnosed Henninge with a concussion. He said that Henninge also had facial tenderness, swelling, lacerations to the face, and a nosebleed. Bowman said that Henninge's injures were severe and the result of a “severe blunt force.” He also testified that Henninge had no injuries to the back of his head and that Henninge's injuries were consistent with a frontal blow.

D. Leah Williams

Leah Williams testified. Williams's account of the morning in question tracked the testimony of Henninge and Grauerholz. That is, Williams also said that she, Grauerholz, and Henninge were leaving because her mother woke them up and asked them to leave. She testified that her mother was angry. Williams also said that she heard what she believed to be Henninge hitting the garage door. She said that the garage door “rattled quite a bit” from whatever impacted it.

E. Medical Records and Verdict

The State admitted into evidence a set of medical records, with an accompanying affidavit, regarding Henninge's admittance into the hospital on the morning of April 22, 2007. The records contain detailed medical information pertaining to Henninge's obligations to pay for medical treatment of injuries he sustained.

The jury found Sanders guilty. Sanders elected to have the trial court assess punishment. At the punishment hearing, Henninge's mother testified that despite Henninge having some insurance coverage, his insurance carrier would not pay most of his medical bills and that her family has not been able to pay for Henninge's medical bills. She also said that the bills were delinquent at the time of trial. The State again introduced medical billing documents showing that Henninge's unpaid medical costs related to injuries he sustained on April 22, 2007, totaled $21,541. The trial court assessed punishment at 270 days' in jail but probated Sanders's sentence for two years. The court also ordered Sanders to pay restitution in the amount of $21,541. This appeal followed.

III. DISCUSSION

A. Sufficiency of the Evidence

In his first point, Sanders contends that the trial court abused its discretion by denying his motion for instructed verdict. Sanders's first point contains two distinct subparts. First, it seems that Sanders argues that there exists a variance between the charging instrument and the proof presented at trial to show that he assaulted Henninge. Second, Sanders challenges the evidentiary sufficiency to support his conviction.

1. No Material Variance

In part of his first point, Sanders argues that the evidence does not support that Henninge's injuries were a result of him having struck a wall; rather, the evidence “indicates that the injuries sustained by [Henninge] were the result of Henninge's fall to the floor.” Sanders appears to argue that because the charging instrument—in this case by information—alleged that Sanders “intentionally or knowingly cause[d] bodily injury to [Henninge], by striking him ... thereby causing him to strike or slam into a wall” and because the evidence at trial showed that Henninge's injuries were caused by him hitting the floor, the evidence is insufficient to support Sanders's conviction. Thus, according to Sanders, the trial court erred by not granting his instructed verdict.

A “variance” occurs when there is a discrepancy between the allegations of the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.2001). In other words, in a variance situation, the State has proved the defendant guilty of a crime, but has proved its commission in a manner that varies from the allegations in the charging instrument. Id. Only a material variance requires reversal because only a material variance prejudices a defendant's substantial rights. Fuller v. State, 73 S.W.3d 250, 263 (Tex.Crim.App.2002). We decide if the variance is material by determining “whether the [charging instrument], as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted [charging instrument] would subject the defendant to the risk of being prosecuted later for the same crime.” Gollihar, 46 S.W.3d at 257.

Sanders does not argue that the information was inadequate to inform him of the charge against him sufficiently to allow him to prepare an adequate defense, nor does Sanders argue that prosecut...