Emmanuel Lynn Limberg v. the State of Texas ( 2021 )

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 TEXAS, 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 appeals his conviction for Aggravated
Assault Causing Bodily Injury With a Deadly Weapon Family Violence, a second-
degree felony. Limberg brings two issues on appeal, and the State asserts five cross-
points. We overrule Limberg’s issues, sustain the State’s cross-points, modify the
judgment as requested by the State, and affirm the judgment as modified.
BACKGROUND
Kristen Zapalac, the complainant, met Limberg in 2017 while working as the
front desk supervisor at a hotel Limberg frequently stayed at while in Dallas on
business. The pair began dating and, by early to mid-December, Limberg was
primarily staying with Zapalac at her apartment instead of getting a hotel room when
he was in town. In February 2018, Limberg had the apartment lease transferred from
Zapalac’s roommate to him. Zapalac was a tenant 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, Limberg 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 told 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 cooking while Zapalac talked and, when she finished
talking, she asked Limberg if he heard her. Limberg replied, “Yeah, whatever. Are
you done?” He then placed the cooked bacon 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. Zapalac testified that when Limberg heard the
“click” from her turning off the stove, Limberg “spun around,” saw she had the pan
of grease in her hand, “wrenched” the pan from her hand and, while holding it like
he was performing a backhand with a tennis racket, “lobbed” the pan’s grease onto
Zapalac. As Limberg was throwing 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
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hot grease hit her skin. A few minutes later, after the shock of the event wore off,
Zapalac “felt like [she] 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 trial, Zapalac expressed 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 Limberg briefly came back inside the house,
Zapalac told him to take all of his belongings 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, Zapalac called two friends for comfort, called
a third friend to ask for a ride to the hospital, and then FaceTimed her mother. When
Zapalac’s parents saw her burns, 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 could not put on a shirt because the pain from
her burns “hurt too bad.” Zapalac told the 911 operator her “face was peeling off.”
At trial, she explained that her face felt like 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 told the jury that she feared the grease
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would permanently scar her skin and disfigure her, and she 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. Dixon testified that this call was “unique”
because burn calls are rare. He also explained that this was a “very bad” burn call
that presented a “challenging situation.” When he first saw Zapalac, Dixon noticed
that she had second-degree burns on part of her face and left arm. He knew they were
second-degree burns because the burn had “blistered up.” Zapalac told the
paramedics that she got burned from grease. Dixon’s written narrative in his
Prehospital Care Report Summary states that Zapalac reported, “My boyfriend put
hot bacon grease on me.” Dixon saw the skillet on the ground in the kitchen and saw
grease everywhere, including on her body. Dixon and his partner put a burn sheet on
Zapalac to keep the burns cool and moisturized. They wanted to get her to the
hospital as quickly as possible. With any burn, paramedics “are in a hurry” to get the
patient to the burn unit, but even more so with second and third degree burns.
Zapalac testified that it was “difficult” for her when the paramedics placed the burn
wrap on her, describing the wrap as “painful 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 took Zapalac to a private room where
nurses, police officers, and doctors asked questions, took pictures of her injuries, and
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treated her burns. Zapalac “couldn’t stop crying” because the grease burns caused
her to feel like she “was on fire.” She described the pain as “the most pain I have
ever felt.” She told the jury that the pain rated a nine out of ten. Zapalac received
pain medication and an IV when she arrived at the hospital. After about ten minutes,
Zapalac was calming down emotionally, “wasn’t hyperventilating as hard,” and
began “feeling groggy.” But the pain medication was only helping with the pain
“very, very, very minimally.”
At the hospital, blisters formed on Zapalac’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 blisters after medical personnel
removed the blisters and “it hurt so much.”
Emergency trauma nurse Arika Tilma treated 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 and Silvadene, a healing ointment. Tilma
testified that they use Silvadene in cases where the burns are deeper burns and more
severe. Medical personnel cleaned her burn wounds with scrub brushes to remove
the grease and blisters, and admitted her to the hospital because of the extent of the
burns. At one point during her treatment, Zapalac 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 and begged the nurse to stop. The nurse
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administered pain medication and resumed scrubbing. The pain medication did not
work immediately so Zapalac pleaded with the 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, shoulder, left side of her chin, and chest.
Tilma noted that while three-and-a-half percent is not a large portion of Zapalac’s
body, Zapalac’s burn percentage “still is significant, 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 reported the same events to responding Dallas
Police Department Officer Tyler Prothro. Tilma 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 Zapalac’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
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injury, that was the one that took the longest to heal and was most as --
I felt pain there longer than anywhere 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 days after the incident show 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 pink underneath. Photos of her
arm taken two weeks before trial show visible scarring from the burns.
The Dallas County grand jury indicted Limberg on one count of aggravated
assault causing serious bodily injury under section 22.02(b)(1) of the penal code.
The indictment charged the aggravated assault as a first-degree felony, alleging a
family relationship between Limberg and Zapalac, and alleging Limberg used a
deadly weapon, hot grease, during the commission of the assault. Limberg pled not
guilty, and the case proceeded to trial. A jury found Limberg guilty of the second-
degree felony of aggravated assault causing 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 appeal. We address each in turn.
I. Submission of Lesser-Included Offense
In his first issue, Limberg complains that the trial court submitted the lesser-
included offense of second-degree aggravated assault with a deadly weapon. We
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review alleged charge error 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 requires 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 aggravated assault. The jury charge
included instructions and a question on that offense as well as instructions and a
question on second-degree aggravated assault. Limberg argues that the jury charge
should not have included second-degree aggravated assault because the indictment
alleged only that he used a deadly weapon, but a conviction for second-degree
aggravated assault can be based on either the use or exhibition of a deadly weapon.
According to Limberg, “[s]econd-degree 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 the 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
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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 alleged 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 objection, he has failed to preserve error
on this complaint. TEX. R. APP. 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 contention that second-degree aggravated
assault is not a lesser-included offense of first-degree aggravated 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 that requires proof
beyond a reasonable doubt of both (a) the commission of an assault by intentionally,
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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.
TEX. PENAL CODE §§ 22.01(a)(1) (assault); 22.02(a) (second-degree aggravated
assault). An aggravated assault is a first-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 defined by section 71.0021(b) of the family code, are family
members as defined by section 71.003 of the family code, or are members of the
same household as defined by section 71.005 of the family code. TEX. PENAL CODE
§ 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 bodily injury to Zapalac by throwing hot
grease on Zapalac, (2) used a deadly weapon, hot grease, during the commission of
the assault, and (3) “has and has had a dating relationship” with Zapalac and was a
member of Zapalac’s family and household. TEX. PENAL CODE § 22.02(b)(1). Under
that indictment, to convict Limberg of first-degree aggravated assault, the State was
required to prove beyond a reasonable doubt that Limberg (1) assaulted Zapalac, (2)
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used a deadly weapon during the commission 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 TEX. PENAL CODE § 22.02(b)(1).
In contrast, to convict Limberg of second-degree aggravated assault, the State
was required to prove only that Limberg assaulted Zapalac and either (1) caused
Zapalac serious bodily injury or (2) used1 a deadly weapon during the commission
of the assault. See TEX. PENAL CODE § 22.02(a).
At trial, the court charged the jury on first-degree and second-degree
aggravated assault. The second-degree charge sought conviction only for causing
bodily injury and using a deadly weapon. TEX. PENAL CODE §§ 22.01(a)(1),
22.02(a)(1). The State did not seek conviction for second-degree aggravated assault
by causing serious bodily injury without the use of a deadly weapon. TEX. PENAL
CODE §§ 22.01(a)(1), 22.02(a)(2).
An offense will be a lesser-included 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. TEX. CODE CRIM. PROC. art. 37.09(1). To determine whether an offense
qualifies as a lesser-included offense, courts use the cognate-pleadings approach. Ex
parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). An
offense is a lesser-included offense of another offense if the indictment for the
1
The indictment did not allege exhibition of a deadly weapon, only use of a deadly weapon.
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greater-inclusive offense either: (1) alleges all of the elements of the lesser-included
offense, or (2) alleges elements plus facts from which all of the elements of the
lesser-included offense may be deduced. Id. If this analysis supports a determination
that the requested lesser offense is a lesser-included offense, the court will move to
the second step of the test and consider whether 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 difference between the first degree and
second degree offenses was the degree of injury. To convict on either offense, the
jury was required to find use of a deadly 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 caused serious bodily
injury, then the jury would have convicted for first degree aggravated assault. But
the jury found that Limberg only caused bodily injury and convicted on the second
degree offense. Bodily injury is encompassed within serious bodily injury. See Ortiz
v. State, 623 S.W.3d 804, 807 (Tex. Crim. App. 2021) (“aggravated 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 violence in the second-degree offense instructions even
though that was not required for conviction on the lesser-included offense. Neither Limberg nor the State
complain of this issue on appeal.
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WL 1018196, at *1 (Tex. App.—Dallas Feb. 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). Although the indictment
alleged serious bodily injury, the elements of bodily injury to support the lesser-
included offense were necessarily encompassed 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 here. Under these facts, we conclude the
indictment alleged all of the elements of the lesser-included offense as charged at
trial. Step one of the analysis is, therefore, met.
We next consider whether a rational jury could 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 injury as “physical pain, illness, or any impairment of
physical condition.” TEX. PENAL CODE § 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 loss 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 function of any bodily member or organ.” It was
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undisputed, however, that Zapalac suffered physical pain and, thus, bodily injury.
Zapalac testified to the “excruciating” pain she endured from the burns and to the
severe and lingering pain she suffered in the days, weeks, and months after the
incident. Under this record, we conclude second-degree felony aggravated assault
was a lesser-included offense and was properly charged 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 challenges the sufficiency of the evidence to
support the deadly weapon finding. Specifically, Limberg maintains the evidence is
insufficient because the State did not elicit testimony that grease constituted a deadly
weapon in this case. We review the sufficiency 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 verdict and determine whether any rational 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
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380, 382 (Tex. App.—Fort Worth 2015, pet. ref’d). The Texas Penal Code defines
“deadly weapon” as “(A) a firearm or anything manifestly 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 use is capable of causing death or serious
bodily injury.” TEX. PENAL CODE § 1.07(a)(17). The “use” element can be satisfied
by “any employment of a deadly weapon, even 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 quotation 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 per se because it is not an object
“manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury.” TEX. PENAL CODE § 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) (knife 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; TEX. PENAL CODE § 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
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weapon, and (3) the manner in which 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 sufficiency analysis and are not “inexorable
commands.” Id.The State need not establish that the use 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. App. 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 themselves 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 hit complainant across the head and inflict
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large gash was, in the manner of its actual use, capable of causing death or serious
bodily injury).
Here, the jurors heard testimony from which 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 burns 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 grease 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 Zapalac suffered “have a very high rate of
infection” and, if Zapalac had not sought treatment, “there 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 depth of the burn and needing skin grafting.”
Tilma also stated that she believed Zapalac’s grease burns were “permanently
disfiguring” and would leave scars “probably for a good amount of time.” Tilma
agreed that grease can be used as a deadly weapon. She told the jury that, based on
her training and experience, a grease burn like 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
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the manner of its use, of causing death or serious bodily injury. The burns were on
her face, arm, and chest, each of which are vital areas that “would seem to carry at
least some potential for resulting in a serious bodily injury . . . or death.” See Tucker,
274 S.W.3d at 692. Indeed, at the time of trial, Zapalac’s scars remained visible on
her arm, and she wore make-up daily to cover the scars on her face. Viewed in the
light most favorable to the verdict, the evidence 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, therefore, 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 the 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 Limberg 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. TEX. R. APP. 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
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modifications and we, therefore, agree with the State that the judgment needs to be
corrected.
First, the record shows Limberg was convicted of “Aggravated Assault
Causing Bodily Injury With a Deadly Weapon Family Violence” (i.e., second-
degree aggravated assault) under Section 22.02(a)(2) of the Texas Penal Code. The
judgment, however, states that he was 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 sustain the State’s first cross-
point and modify the trial court’s judgment to replace “Aggravated Assault
Date/Family House SBI With Weapon” as the “Offense for which Defendant
Convicted” with “Aggravated Assault Causing 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 judgment to reflect that the trial judge
assessed punished. The record confirms that the trial judge assessed punishment.
The judgment, however, states that the 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 assessed punishment by replacing “JURY” with
“Trial Court” as to “Punishment Assessed by.”
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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 the paragraph designating that Limberg
made an election for the jury to assess punishment and adding 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 asks 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 represented the State during Limberg’s trial.
The record shows, however, that Annelise 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 modify 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 felony. The record
reflects, however, that Limberg was convicted of aggravated assault causing bodily
injury with a deadly weapon, family, which is a second-degree felony. We sustain
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the State’s fifth cross-point and modify the judgment to change the “Degree of
Offense” from “1st Degree Felony” 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 lists the Honorable Dominique Collins as
the presiding judge. The signature is illegible. During oral argument, Limberg’s
counsel agreed that Judge Snipes presided at 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 Michael R. Snipes as the presiding judge.
See Asberry, 813 S.W.2d at 529–30 (appellate court may act sua 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.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
191231F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EMMANUEL LYNN LIMBERG, On Appeal from the Criminal District
Appellant Court No. 4, Dallas County, Texas
Trial Court Cause No. F-1875450-K.
No. 05-19-01231-CR V. Opinion delivered by Justice Partida-
Kipness. Justices Myers and Garcia
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
 Replace “Aggravated Assault Date/Family House SBI With
Weapon” with “Aggravated Assault Causing Bodily Injury With
a Deadly Weapon Family Violence” as the “Offense for which
Defendant Convicted.”
 Replace “22.02(b)(1) Penal Code” 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 the paragraph designating that
Appellant made an election for the jury to assess punishment and
adding an “X” selecting the paragraph 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.
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 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.
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