Nicanor Zamora Hernandez v. State ( 2011 )

MEMORANDUM OPINION
No. 04-10-00767-CR
Nicanor Zamora HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Menard County, Texas
Trial Court No. 2009-02164
The Honorable M. Rex Emerson, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: August 31, 2011
AFFIRMED
Nicanor Zamora Hernandez was convicted of aggravated assault. Hernandez appeals the
trial court’s judgment, contending the evidence is legally insufficient to support the jury’s verdict
because of a variance between the proof at trial and the allegations in the indictment. We affirm
the judgment.
04-10-00767-CR
BACKGROUND
Nicanor Hernandez III (A/K/A “Little Nick”) was involved in an argument with Jimmy
Dale Light at the apartment complex where Light resided. After arguing for a short period of
time, Little Nick left the complex but returned forty-five minutes later with Hernandez, his father
(A/K/A “Big Nick”). While Light was talking to Hernandez, Little Nick punched Light in the
face, and he was knocked to the ground. Light and his girlfriend testified that while Light was
on the ground Hernandez put his hands on Light preventing him from getting up as Little Nick
kicked him. The indictment in this case states in relevant part that:
NICANOR ZAMORA HERNANDEZ, ON OR ABOUT THE 30TH DAY OF
JULY, 2009, . . . DID THEN AND THERE . . . intentionally, knowingly, or
recklessly cause serious bodily injury to JIMMY DALE LIGHT by holding
JIMMY DALE LIGHT down while NICANOR HERNANDEZ III kicked
JIMMY DALE LIGHT in the face with his foot . . . .”
The indictment was later amended by inserting “AKA Big Nick” immediately after the
defendant’s name, and “AKA Little Nick” immediately after NICANOR HERNANDEZ III.
After both sides closed, the jury was charged that it could return a verdict of guilty if it
found beyond a reasonable doubt that Hernandez “acting alone or as a party as that term has been
previously defined intentionally, knowingly, or recklessly cause[d] serious bodily injury to
JIMMY DALE LIGHT by holding JIMMY DALE LIGHT down while NICANOR
HERNANDEZ III. [sic] AKA “LITTLE NICK” kicked JIMMY DALE LIGHT in the face . . . .”
The jury returned a general verdict of guilty.
DISCUSSION
Hernandez agrees the evidence demonstrates that Little Nick kicked Light in the face
while Light lay on the ground, and that Hernandez “put his hands on Mr. Light to prevent him
from getting up just before Little Nick kicked Light in the face.” Also, Hernandez does not
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dispute that Light suffered serious bodily injury resulting from the attack. His only contention is
that the State was required to prove the allegations in the indictment—that Hernandez caused
Light serious bodily injury by holding him down. Hernandez argues the State was “bound by the
indictment to prove” that Light’s “serious bodily injury was caused by appellant holding down
Mr. Light, and because aggravated assault is a results-oriented [sic] offense, the State must also
prove that appellant had a specific intent to cause serious bodily injury by holding Mr. Light
down.” Hernandez contends there is a fatal variance between the indictment and the proof
because his holding Light down did not cause serious bodily injury. He argues the indictment as
drawn cannot support a conviction based on the law of parties. However, Hernandez
misperceives Texas law on parties.
The State is not required to plead that a person acted as a party to the offense in the
indictment in order to authorize a conviction on that theory. Marable v. State, 85 S.W.3d 287,
287 (Tex. Crim. App. 2002). A person is a party if, “acting with the intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other
person to commit the offense.” See TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011). The jury
was properly charged on that theory, and was authorized to return a verdict of guilty if the jury
found beyond a reasonable doubt Hernandez was a party to the assault committed by Little Nick.
The evidence demonstrates that before the assault, Light had a verbal confrontation with
Little Nick. Little Nick left, but returned to re-initiate the matter, telling Light “come on m***
f***. I got my dad here now.” Light testified that while he was talking to Hernandez, Little
Nick hit him in the head and he fell to the ground. Light attempted to get up, but Hernandez held
him down. Little Nick then kicked him in the head and Light testified he was “knocked out” for
a “second or two.” Betty Henderson, a nurse practitioner, testified that Light suffered multiple
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bone fractures around his nose and eyes, including two fractures to his cheek bone and a fracture
of the “lateral wall left orbit.” Henderson testified the injuries constituted serious bodily injury.
Tracy Baker testified she witnessed the altercation and saw Hernandez hold Light on the
ground while Little Nick kicked Light. Hernandez was holding Light by the shoulders, but
released his hold once Little Nick kicked Light in the head. Based on the evidence, a rational
jury could find beyond a reasonable doubt that Little Nick caused serious bodily injury to Light,
and Hernandez was a party to that offense.
CONCLUSION
There is no variance between the indictment and the proof because the trial court
correctly authorized the jury to convict Hernandez based on the law of parties. There was
sufficient evidence to support the jury’s verdict on that theory. The judgment of the trial court is
affirmed.
Steven C. Hilbig, Justice
DO NOT PUBLISH
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