Gilmore Sr., Andre v. The State of Texas--Appeal from 21st District Court of Washington County

Affirmed and Memorandum Opinion filed October 28, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00085-CR

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ANDRE GILMORE, SR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

   Washington County, Texas

Trial Court Cause No. 13,656

M E M O R A N D U M O P I N I O N

Appellant Andre Gilmore Sr. was charged by indictment with the second-degree-felony offense of aggravated assault causing serious bodily injury, and the state-jail-felony offense of injury to a child. A jury found him guilty on both counts, and the trial court assessed punishment at confinement for eight years and two years, respectively, with the sentences to run concurrently. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.

Appellant s sole complaint on appeal is that the evidence is factually insufficient to sustain his conviction for aggravated assault, and therefore his conviction for injury to a child as well. A person commits an aggravated assault by intentionally, knowingly, or recklessly causing serious bodily injury to another. See Tex. Pen. Code 22.01(a)(1) & 22.02(a)(1). Bodily injury is serious if it causes serious permanent disfigurement or protracted loss of any bodily member. Tex. Pen. Code 1.07(a)(8) & (a)(46). We apply the usual standard of review. See King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).

At trial, Brandy Gilmore testified that in an effort to keep her from leaving home after an argument, appellant pushed her down the front steps. Dr. Charles Smith, who operated on her later that evening, testified her leg had to be amputated because all ligaments connecting her thigh and lower leg had been torn, and arterial damage had cut off all circulation to the lower leg. Against this evidence, appellant testified he did not push Brandy. We conclude there was factually sufficient evidence to allow a rational trier-of-fact to find appellant committed aggravated assault.

In his brief, appellant argues the State failed to prove two elements in the jury charge that Brandy broke her leg and that she fell from a porch. But our sufficiency review is measured against the elements as defined by a hypothetically correct jury charge. Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002). This hypothetical charge disregards all additional allegations unless they are material that is, they deprived him of notice of the charges or subjected him to the risk of a later prosecution for the same offense. Id. at 253.

Here, appellant could not have been confused about the incident with which he was charged or the severity of Brandy s injuries. Moreover, his defense at trial was that he did not place his hands on Brandy and thereby cause her fall. Thus, the variances claimed by appellant could not have confused him about the charges or impaired his ability to present an adequate defense. Therefore, we hold the asserted variances are immaterial and must be disregarded in our sufficiency review.

Appellant s arguments regarding his conviction for injury to a child turn solely on his challenge to the aggravated assault conviction, so we reach the same disposition on them. Appellant s sole issue presented for review is overruled, and the judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed October 28, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

Do Not Publish Tex. R. App. P. 47.2(b).