In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00216-CR
JOSE ANGEL MARTINEZSALCIDO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1853342
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
A jury convicted Appellant Jose Angel Martinezsalcido1 of one count of
continuous violence against the family and one count of evading arrest or detention
with a vehicle. See Tex. Penal Code §§ 25.11(e) (continuous violence against the
family), 38.04(b)(2)(A) (evading arrest or detention with a vehicle). The jury also
found that Appellant had used or exhibited a deadly weapon when committing the
offense of evading arrest or detention with a vehicle. The jury assessed his
punishment at four years’ confinement for the count of continuous violence against
the family and two years’ confinement for the count of evading arrest or detention
with a vehicle. The trial court sentenced him accordingly with the sentences to run
concurrently.
In four issues on appeal, Appellant argues that (1) the evidence is insufficient to
support his conviction for continuous violence against the family because there is no
showing that he committed more than one assault, (2) there is a fatal variance between
the proof at trial and the indictment concerning the charge of continuous violence
against the family, (3) there is no evidence that he intentionally or knowingly caused
an injury to the victim’s forehead, and (4) the evidence is insufficient to support the
jury’s deadly-weapon finding. We will overrule Appellant’s first three issues, but we
will sustain his fourth issue and modify the trial court’s judgment on the count of
1
At various times, the record refers to Appellant as “Jose Angel
Martinezsalcido,” “Jose Angel Martinez Salcido,” and “Jose Martinez.” For simplicity, we will refer to him as “Appellant.”
2
evading arrest or detention with a vehicle to delete the deadly-weapon finding. We will
affirm the trial court’s judgments as modified.
I. Background
A. Appellant Assaults His Wife, He Flees, and Police Arrive on the Scene
Appellant is married to Y.N., 2 the complainant in this case, and he was married
to her at the time of the charged assaults. At trial, Y.N. testified 3 that she and
Appellant were sleeping in their home in the early morning hours of December 17,
2024, when her phone started ringing. She noticed that the call was from a male
coworker. Appellant asked who was calling, and Y.N. told him that it was “nobody.”
Appellant wanted to see Y.N.’s phone, but she did not want to give it to him.
According to Y.N., the two of them then “started fighting over [her] phone.”
Appellant eventually got the phone and learned that the call had been from Y.N.’s
coworker. Appellant threw the phone causing it to break. He then left to visit his
family’s residence down the street. Y.N. estimated that he left around 1:30 a.m. or
2:00 a.m. The male coworker who had called Y.N. later arrived at her home, and after
2
To protect the victim’s anonymity, we refer to her by her initials. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
3
Y.N. was called as a witness by the defense at trial.
3
noticing that she had an injured lip, he urged her to call the police. When she did not
call the police,4 he did.
Around 3:00 a.m., Michael Portillo, a deputy with the Tarrant County Sheriff’s
Office, was dispatched to respond to a report of an assault at Y.N.’s home. Portillo
spoke with Y.N. and her coworker. While speaking to Y.N., Portillo observed that she
had dried blood on her lip and mouth and that her mouth was swollen. Y.N. reported
that Appellant had been asleep in the couple’s bedroom, that he had woken up, and
that he had started a verbal altercation with her because he had believed that she was
cheating on him. She also relayed that Appellant had slapped her with an open palm.
At trial, Y.N. acknowledged that she had told Portillo that Appellant had struck her
with an open hand when the two of them were “fighting over [her] phone.” Y.N.
reported to Portillo that Appellant had left the residence in a black Toyota Tundra.
B. Appellant Returns to the Scene, He Assaults Y.N. a Second Time, He
Flees Again, and Police Arrive on the Scene in Response to Reports of
Gunfire
Y.N. testified that after the police left, Appellant returned to the home. She
tried to block the door to stop his entry, but Appellant pushed against the door, and
the child lock on the door hit her in the process. At trial, Y.N. acknowledged that a
reasonable result of Appellant’s pushing the door was that she would be struck by it.
4
At trial, Y.N. stated that she did not want to call the police because “nothing really happened.”
4
Appellant eventually made his way into the home although he later left looking for
Y.N.’s coworker.
Shortly after 4:00 a.m., James Lambeth, a patrol officer for the Tarrant County
Sheriff’s Office, was dispatched to the neighborhood of Appellant and Y.N.’s
residence in response to a report that gunshots had been fired in the area. Lambeth
did not find any shells or bullet holes relating to the gunfire. While Lambeth was in
the neighborhood, Portillo asked him to stop by Appellant and Y.N.’s residence
because it was possibly related to the shooting. While talking to Y.N. at the residence,
Lambeth observed some of the injuries noted by Portillo previously, such as “swelling
on her lower lip” and “blood in the area around her mouth.” Notably, however,
Lambeth observed a new injury not seen by Portillo previously that night—“a
laceration on her forehead on her right side.” According to Lambeth, Y.N. was
uncooperative and did not want to answer his questions.
Lambeth took a photograph of Y.N.’s injuries. 5 At trial, Portillo was asked
about the photograph. He maintained that “[t]he knot on her forehead with the fresh
blood was not on there when [he] made contact with her the first time.”
5
That photograph was admitted into evidence at trial. It shows a laceration and bump on the right side of Y.N.’s forehead, as well as blood and swelling around her mouth.
5
C. Police Attempt to Detain Appellant, He Attempts to Evade Detention in
His Vehicle, He Is Arrested, and He Makes Certain Admissions to
Police
Portillo was also dispatched to the area due to the reports of gunfire. The caller
who reported the gunshots had mentioned that a black vehicle had left the area after
the gunshots had been fired. While Portillo was returning to the area around 4:11
a.m., he passed a black Toyota Tundra being driven by Appellant. Portillo was
informed by dispatch that Y.N. was the owner of that vehicle. He activated his
marked patrol vehicle’s overhead lights and attempted to make an investigative stop
on the Toyota Tundra.
After Portillo activated his lights, Appellant put on his vehicle’s emergency
flashers, made a U-turn, 6 pulled off to the shoulder, and stopped.7 As Portillo
approached Appellant’s vehicle, Appellant stuck his head out the window and
shouted, “[J]ust let me go say bye to my dad.” Appellant then started driving his
vehicle back toward his residence’s neighborhood with his hazard lights still on.
Portillo testified that Appellant was traveling around sixty miles per hour, which was
the speed limit. Portillo also indicated that traveling sixty miles an hour on that
“stretch of road” was “reasonable.” Portillo said that Appellant was not speeding or
driving erratically, and he maintained that Appellant did not commit any traffic
6
Portillo testified that Appellant’s U-turn was made legally.
7
A video from the dashcam of Portillo’s patrol vehicle was admitted into evidence at trial. That video tracks Portillo’s testimony regarding the movements of his and Appellant’s respective vehicles.
6
violations during the encounter. He even noted that Appellant stopped at a red light
at one point. Around five minutes after he first fled in his vehicle, Appellant stopped
at his father’s residence, and Portillo placed him in handcuffs.
Appellant later told Portillo that he had shot a firearm in the neighborhood. He
reported that he had thrown the firearm in some “high bush,” but officers were
unable to find it. When Portillo asked about the blood on Y.N.’s lip, Appellant
admitted that he had “roughed her up.” As to the knot on her forehead, Appellant
told Portillo that she had received that injury when he had “shoved her” when he was
running out the front door.8
II. Discussion
A. Standard of Review
Each of Appellant’s four issues implicates the sufficiency of the evidence. In
our evidentiary-sufficiency review, we view all the evidence in the light most favorable
to the verdict to determine whether any rational factfinder could have found the
crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.
App. 2017). This standard gives full play to the factfinder’s responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
8
At another point in his testimony, Appellant stated that Y.N.’s forehead injury had occurred when “he pushed her when he was grabbing the gun and running out the front door.”
7
from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Harrell
v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021).
We may not re-evaluate the evidence’s weight and credibility and substitute our
judgment for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine
whether the necessary inferences are reasonable based on the evidence’s cumulative
force when viewed in the light most favorable to the verdict. Braughton v. State,
569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232
(Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not engage
in a ‘divide and conquer’ strategy but must consider the cumulative force of all the
evidence.”). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at
608.
To determine whether the State has met its burden to prove a defendant’s guilt
beyond a reasonable doubt, we compare the crime’s elements as defined by a
hypothetically correct jury charge to the evidence adduced at trial. Hammack v. State,
622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see also Febus v. State, 542 S.W.3d 568,
572 (Tex. Crim. App. 2018) (“The essential elements of an offense are determined by
state law.”). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or restrict the
8
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried. Hammack, 622 S.W.3d at 914. The law as authorized by the
indictment means the statutory elements of the offense as modified by the charging
instrument’s allegations. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021).
B. Continuous Violence Against the Family
1. Appellant’s Timing Complaint
In his first issue, Appellant argues that the evidence is insufficient to support
his conviction for continuous violence against the family because there is no showing
that more than one assault occurred.
a. Applicable Law
Section 25.11(a) of the Texas Penal Code—the statute establishing the elements
for continuous violence against the family—provides,
A person commits an offense if, during a period that is 12 months or
less in duration, the person two or more times engages in conduct that
constitutes an offense under Section 22.01(a)(1) against another person
or persons whose relationship to or association with the defendant is
described by Section 71.0021(b), 71.003, or 71.005, Family Code.
Tex. Penal Code § 25.11(a).
As relevant here, Penal Code Section 22.01(a)(1) states that a person commits
assault if he intentionally or knowingly causes bodily injury to another person,
including the person’s spouse. Id. § 22.01(a)(1). Family Code Section 71.003 refers to
individuals who are part of the same family, including people who are married to each
other. Tex. Fam. Code § 71.003; see Tex. Gov’t Code § 573.024.
9
b. Analysis
Here, the evidence reflects two separate assaults by Appellant against his wife
that occurred over a period of more than an hour in the family home. The first assault
occurred when Appellant and Y.N. were fighting over her phone. Y.N. told police
that Appellant had struck or slapped her with an open hand or palm during that
assault, and Appellant admitted to police that he had “roughed her up” on that
occasion. Y.N. had a swollen and bloody lip and bloody mouth as a result of that
assault.
The second assault occurred over an hour later after (1) Appellant had left the
residence, (2) Y.N.’s coworker had arrived at the residence and had called the police,
(3) the police had arrived and spoken to Y.N. and the coworker, (4) the police had
left, and (5) Appellant had returned to the residence. According to Y.N., during that
occasion, Appellant had tried to enter the home, and she had tried to block his entry.
Y.N. testified that the child lock on the door had hit her in the struggle at the door.
She had a cut and a knot on her forehead as a result of that assault. Appellant told the
police that she had received that injury when he “shoved her” while running out the
door.
Appellant contends that his conviction for continuous violence against the
family is not supported by sufficient evidence because the two events happened
around an hour of each other. Without citing any authority to support his position,
Appellant argues, “A rationale and reasonable interpretation of [Section 25.11] is that
10
‘continuous’ violence means conduct which is repeated over a period of days, weeks,
or months, not hours.” Thus, Appellant maintains that “[i]nflicting separate injuries to
the same victim within about an hour does not constitute showing a pattern of
continuous abuse.”
We disagree. Section 25.11(a) authorizes a person to be convicted for
continuous violence against the family when that person “two or more times” engages
in assaultive conduct against a family member “during a period that is 12 months or
less in duration.” See Tex. Penal Code § 25.11(a). While the statute sets forth a
maximum time period that may have elapsed between the instances of assault—“12
months”—it does not set forth any minimum time period. See id. And it certainly does
not require that the conduct occur over “a period of days, weeks, or months” as
Appellant suggests. See Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015)
(stating that we are to construe a statute according to the plain meaning of its
language, reading words and phrases in context, and construing the words according
to the normal rules of grammar and usage); Tapps v. State, 294 S.W.3d 175, 177 (Tex.
Crim. App. 2009) (reaffirming that courts construe criminal statutes according to their
plain language and may not add or subtract from an unambiguous statute).
In his brief, Appellant suggests that only one assault occurred because the two
assaults occurred on the same date, at the same location, with the same or similar
11
manner and means, and with the same motive.9 We find Urtado v. State—a case arising
in the double-jeopardy context—to be instructive. 333 S.W.3d 418 (Tex. App.—
Austin 2011, pet. ref’d). In Urtado, the appellant was convicted of two counts of
assault causing serious bodily injury. Id. at 425. He argued on appeal that the two
counts stemmed from the same criminal offense involving the same victim on the
same day. Id. at 423. The Austin Court of Appeals disagreed. Id. at 425–26. It
referenced a witness’s testimony that the first assault had taken place prior to the
victim’s retreat to a bathroom while the second assault had occurred after the victim
emerged from the bathroom. Id. at 425. The court noted that the witness specifically
mentioned that a break had occurred between the two assaults and described them as
two separate incidents. Id. Based on that testimony, the court held that the appellant
was not being punished twice for the same offense, holding that two separate assaults
had occurred. Id. Here, we similarly hold that two separate assaults occurred, noting in
particular that in the time period between the two assaults, Appellant had left the
residence, Y.N.’s coworker and the police had arrived, police had left the residence,
and Appellant had returned.
9
Appellant also contends that the indictment alleged that he committed only one assault. We disagree. One paragraph of the indictment states that Appellant intentionally or knowingly caused bodily injury to Y.N. on or about 2:45 a.m. on December 17, 2024, by striking her with his hand. The next paragraph of the indictment states that he intentionally or knowingly caused bodily injury to her on or about 4:00 a.m. on December 17, 2024, by striking her with his hand or body or by causing her to strike the ground.
12
After viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found, beyond a reasonable doubt,
that Appellant committed two assaults against his wife in a time period that is twelve
months or less in duration. See Tex. Penal Code § 25.11(a); Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; see also Urtado, 333 S.W.3d at 425–26. Accordingly, we hold that the
evidence is sufficient to support Appellant’s conviction for continuous violence
against the family. See Tex. Penal Code § 25.11(a).
We overrule Appellant’s first issue.
2. Appellant’s Complaint of a Fatal Variance
In his second issue, Appellant argues that there is a fatal variance between the
proof at trial and the indictment concerning the charge of continuous violence against
the family.
a. Applicable Law
A variance occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex.
Crim. App. 2001); Mitchell v. State, No. 02-25-00157-CR, 2026 WL 1839252, at *11
(Tex. App.—Fort Worth June 25, 2026, pet. filed) (mem. op., not designated for
publication). In this situation, the State has proven the defendant guilty of a crime but
has proven its commission in a manner that varies from the allegations in the charging
instrument. Gollihar, 46 S.W.3d at 246; Mitchell, 2026 WL 1839252, at *11.
13
There are two types of variances in an evidentiary-sufficiency analysis: material
variances and immaterial variances. Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. App.
2014); Mitchell, 2026 WL 1839252, at *11. Immaterial variances do not affect the
validity of a criminal conviction; thus, a hypothetically correct jury charge does not
need to incorporate allegations that would give rise to only immaterial variances.
Thomas, 444 S.W.3d at 9; Mitchell, 2026 WL 1839252, at *11. A material variance, on
the other hand, renders a conviction infirm, and the only remedy for a material
variance is a judgment of acquittal. Thomas, 444 S.W.3d at 9; Mitchell, 2026 WL
1839252, at *11.
A variance is material only if it prejudices a defendant’s substantial rights.
Gollihar, 46 S.W.3d at 257; Mitchell, 2026 WL 1839252, at *11. A defendant’s
substantial rights are not prejudiced as long as the indictment informed the defendant
of the charge against him sufficiently to allow him to prepare an adequate defense at
trial and as long as the deficiently drafted indictment would not subject him to the risk
of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 257; Mitchell, 2026
WL 1839252, at *11. “The defendant bears the burden of demonstrating that a
variance is material.” Conway v. State, No. 05-25-00429-CR, 2026 WL 302167, at *3
(Tex. App.—Dallas Feb. 4, 2026, no pet.) (mem. op., not designated for publication)
(citing Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001)).
14
b. Analysis
Here, Appellant was charged with continuous violence against the family based
on two instances of assault. As to the first instance, the indictment alleged that he had
struck Y.N. with his hand. As to the second instance, the indictment alleged that he
had struck her with his hand or body or that he had caused her to strike the ground.
In his brief, Appellant acknowledges that there is evidence that he committed the first
assault by striking Y.N. with his hand. However, he claims that there is no evidence to
prove the manner and means alleged in the second assault. According to Appellant,
the evidence regarding the second assault varies from the indictment’s allegation
because the trial testimony revealed that the second assault was caused either by
Appellant’s causing Y.N.’s forehead to strike the front door or by his pushing her
while running out the front door.
As a preliminary matter, we note that Appellant has not demonstrated that he
was surprised or prejudiced by an alleged variance between the State’s allegations and
the evidence at trial. Absent such a showing, we cannot say that the alleged variance
was material. See Santana, 59 S.W.3d at 194 (“In variance law, it is well-settled that the
burden of demonstrating surprise or prejudice rests with the defendant.”); Cole v. State,
611 S.W.2d 79, 82 (Tex. Crim. App. 1981) (“Despite appellant’s general contention
that the variance misled him and prejudiced the preparation of his defense, we are
unable to say that he has shown such surprise or prejudice as to make it a fatal
15
variance.”); Mitchell, 2026 WL 1839252, at *12 (holding that alleged variance was
immaterial when appellant failed to demonstrate any surprise or prejudice).
In any event, courts have held that for result-oriented offenses like assault and
continuous violence against the family, variances between manner-and-means
allegations are not material and do not inform the hypothetically correct jury charge or
implicate sufficiency. See, e.g., Hernandez v. State, 556 S.W.3d 308, 314, 327 (Tex. Crim.
App. 2017) (op. on reh’g); Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim. App.
2012); Walker v. State, Nos. 02-23-00346-CR, 02-23-00347-CR, 2024 WL 3715011, at
*3 (Tex. App.—Fort Worth Aug. 8, 2024, no pet.) (mem. op., not designated for
publication); Dunn v. State, No. 05-10-00196-CR, 2011 WL 227715, at *2 (Tex. App.—
Dallas Jan. 26, 2011, pet. ref’d) (not designated for publication); Thomas v. State, 303
S.W.3d 331, 333 (Tex. App.—El Paso 2009, no pet.); see also Rubis v. State, 666 S.W.3d
837, 840 (Tex. App.—Dallas 2023, no pet.) (stating that assault and continuous
violence against the family are result-oriented offenses). Thus, because the manner
and means must be disregarded in a hypothetically correct jury charge, it is irrelevant
whether Appellant assaulted Y.N. by striking her with his hand or by some other
means. See Fritzching v. State, No. 02-10-00431-CR, 2012 WL 1222033, at *5 (Tex.
App.—Fort Worth Apr. 12, 2012, pet. ref’d) (mem. op., not designated for
publication) (“Here, because the manner and means must be disregarded in a
hypothetically correct jury charge on assault, it is irrelevant that the State did not
prove that [the appellant] struck the complainant with both hands.”); Dunn, 2011 WL
16
227715, at *2 (“[W]ith regard to the injury element of the offense, the State was only
required to prove that appellant caused Lupe to suffer bodily injury;[]whether he did
so with his hand or fist was immaterial.”).
We overrule Appellant’s second issue.
3. Appellant’s Complaint That He Did Not Intentionally or
Knowingly Cause the Injury to Y.N.’s Forehead
In his third issue, Appellant argues that the evidence is insufficient to support
his conviction for continuous violence against the family because there is no evidence
that he intentionally or knowingly caused an injury to Y.N.’s forehead.
a. Applicable Law
Assault causing bodily injury is a result-oriented offense. Bakare v. State, No. 02-19-00447-CR, 2021 WL 2460857, at *2 (Tex. App.—Fort Worth June 17, 2021, no
pet.) (mem. op., not designated for publication); Baldit v. State, 522 S.W.3d 753, 759
(Tex. App.—Houston [1st Dist.] 2017, no pet.). Accordingly, the State must prove
that Appellant caused the result—that is, bodily injury to Y.N.—with the requisite
mental state. See Bakare, 2021 WL 2460857, at *2; Baldit, 522 S.W.3d at 759. Here, the
indictment alleged that Appellant intentionally or knowingly committed the assault
against Y.N. that caused the injury to her forehead. A person acts intentionally with
respect to a result of his conduct when it is his “conscious objective or desire
to . . . cause the result.” Tex. Penal Code § 6.03(a). A person acts knowingly with
17
respect to a result of his conduct when he is “aware that his conduct is reasonably
certain to cause the result.” Id. § 6.03(b).
A factfinder may infer that a person intends the natural consequences of his
acts. Harmel v. State, 597 S.W.3d 943, 954 (Tex. App.—Austin 2020, no pet.); Nicholson
v. State, 594 S.W.3d 480, 487 (Tex. App.—Waco 2019), aff’d, 682 S.W.3d 238 (Tex.
Crim. App. 2024). Intent and knowledge are almost always proven through
circumstantial evidence. Jackson v. State, No. 02-24-00050-CR, 2025 WL 1599969, at *5
(Tex. App.—Fort Worth June 5, 2025, no pet.) (mem. op., not designated for
publication); Clay v. State, 389 S.W.3d 874, 878 (Tex. App.—Texarkana 2012, pet.
ref’d). “Intent may be inferred from any facts tending to prove its existence, including
the method of committing the crime; the wounds inflicted on the victim; and the
defendant’s acts, words, and conduct.” Alkayyali v. State, 668 S.W.3d 445, 456 (Tex.
App.—Fort Worth 2023), aff’d, 713 S.W.3d 780 (Tex. Crim. App. 2025). “As to bodily
injury, ‘[a]ny physical pain, however minor, will suffice to establish’ it and ‘[a] fact
finder may infer that a victim actually felt or suffered physical pain because people of
common intelligence understand pain and some of the natural causes of it.’” Bakare,
2021 WL 2460857, at *2 (quoting Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim.
App. 2012)).
b. Analysis
Appellant contends that there is no evidence that he committed the second
assault with the requisite culpable mental state because “[n]o evidence showed that
18
[Y.N.’s] forehead injury was either intended by Appellant or that he knew it was
reasonably certain to occur as a result of his conduct.” We disagree.
Here the evidence shows that Appellant committed the first assault because he
thought that Y.N. was cheating on him. He admittedly “roughed her up” on that
occasion. After he left the residence, he returned around an hour later and tried to
enter the home while Y.N. blocked the door. Appellant told the police that Y.N.
received the injury to her forehead because he either had “shoved her” when he was
running out the front door or had “pushed her when he was grabbing the gun and
running out the front door.” Y.N. testified that during the struggle at the door,
Appellant had pushed against the door, and a child lock on the door had hit her in the
forehead. She acknowledged that a reasonable result of Appellant’s pushing the door
was that she would be struck by it. That injury resulted in a laceration and a knot on
her forehead. Shortly after the struggle at the door, Appellant fired gunshots in the
neighborhood.
After viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found, beyond a reasonable doubt,
that Appellant intentionally or knowingly caused the injury to Y.N.’s forehead. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Alkayyali, 668 S.W.3d at 456; Harmel, 597
S.W.3d at 954; Nicholson, 594 S.W.3d at 487; Clay, 389 S.W.3d at 878.
We overrule Appellant’s third issue.
19
C. Appellant’s Complaint Regarding the Deadly-Weapon Finding
In his fourth issue, Appellant argues that the evidence is insufficient to support
the jury’s deadly-weapon finding with regard to his evading conviction.
1. Applicable Law
A motor vehicle is not a deadly weapon per se, but it can be a deadly weapon if
its manner of use or intended use is capable of causing death or serious bodily injury.
Couthren v. State, 571 S.W.3d 786, 789 (Tex. Crim. App. 2019); see Tex. Penal Code
§ 1.07(17)(B). To determine whether the evidence sufficiently shows that the
defendant used a vehicle as a deadly weapon, we (1) evaluate the manner in which he
used the vehicle during the felony and (2) consider whether, during the felony, the
vehicle was capable of causing death or serious bodily injury. Sierra v. State, 280 S.W.3d
250, 255 (Tex. Crim. App. 2009); Blankenship v. State, No. 02-25-00225-CR, 2026 WL
179569, at *7 (Tex. App.—Fort Worth Jan. 22, 2026, pet. ref’d) (mem. op., not
designated for publication).
As to the first element, we must evaluate whether a defendant’s manner of
driving was reckless or dangerous. Gordon v. State, No. 02-23-00101-CR, 2024 WL
2760913, at *4 (Tex. App.—Fort Worth May 30, 2024, pet. ref’d) (mem. op., not
designated for publication). In undertaking that evaluation, we consider factors such
as whether the driver was (1) intoxicated, (2) speeding, (3) disregarding traffic signs
and signals, (4) driving erratically, or (5) failing to control the vehicle. Id. (citing
20
Orlando v. State, No. 02-22-00239-CR, 2023 WL 3251010, at *2 (Tex. App.—Fort
Worth May 4, 2023, pet. ref’d) (mem. op., not designated for publication)).
As to the second element, the danger to others must be actual and not simply
hypothetical. Blankenship, 2026 WL 179569, at *7; Clark v. State, 573 S.W.3d 367, 374
(Tex. App.—Beaumont 2019, no pet.). Were this not so, “then a deadly[-]weapon
finding would be appropriate in every evading arrest or detention case,” a notion that
the Texas Court of Criminal Appeals has “squarely rejected.” Clark, 573 S.W.3d at 375
(citing Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005)).
2. Analysis
In its brief, the State candidly recognizes that Appellant’s fourth issue “presents
an admittedly close question” and that “this case involves few of the circumstances
normally encountered by law enforcement in vehicular pursuits.” The State
acknowledges that “Appellant was not driving erratically, nor speeding, [n]or driving
under the influence, nor operating his vehicle in an area of hazardous road
conditions.” Nevertheless, the State contends that the evidence supports the jury’s
deadly-weapon finding. We disagree.
Portillo testified that Appellant did not speed or drive erratically during the
encounter. He also said that he did not observe Appellant commit any traffic
violations, noting that Appellant had even stopped at a red light at one point during
the pursuit. Portillo further stated that the speed of Appellant’s vehicle was
“reasonable” and within the speed limit. He also testified that there was no indication
21
that Appellant was driving while intoxicated. Thus, none of the factors are present to
indicate that Appellant’s manner of driving was reckless or dangerous. See Gordon,
2024 WL 2760913, at *4; Orlando, 2023 WL 3251010, at *2. There is also no evidence
that Appellant’s evasion of detention with his vehicle presented any actual danger to
anyone. While the State mentions that the roadway was dark and that Appellant was
driving in “an extremely agitated mental state,” those conditions merely suggest a
hypothetical danger, not an actual danger. See Blankenship, 2026 WL 179569, at *7;
Clark, 573 S.W.3d at 374.
After viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could not have found, beyond a reasonable doubt,
that Appellant used a motor vehicle as a deadly weapon while evading arrest or
detention; thus, the evidence is insufficient to support the jury’s deadly-weapon
finding. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Sierra, 280 S.W.3d at 255; see also
Brister v. State, 449 S.W.3d 490, 495 (Tex. Crim. App. 2014) (holding that evidence was
insufficient to support deadly-weapon finding when the testimony merely reflected
that, “on a single occasion, appellant briefly crossed the center line into the oncoming
lane of traffic at a time at which there were very few, if any, cars in that lane” and that
he “committed no other traffic offenses”); McKnight v. State, No. 13-22-00453-CR,
2023 WL 5439791, at *8 (Tex. App.—Corpus Christi–Edinburg Aug. 24, 2023, no
pet.) (mem. op., not designated for publication) (holding that evidence was
insufficient to support deadly-weapon finding when evidence showed that although
22
appellant “kept veering” toward the curb, there was no evidence that anyone was
placed in actual danger as a result); Clark, 573 S.W.3d at 374–75 (holding that evidence
was insufficient to support deadly-weapon finding when no one was placed in actual
danger during appellant’s evasion of arrest). We sustain Appellant’s fourth issue.
“When the evidence is insufficient to support a deadly-weapon finding, the
appropriate remedy is to delete the deadly-weapon finding.” Martinez v. State, No. 03-14-00802-CR, 2016 WL 5874863, at *5 (Tex. App.—Austin Oct. 5, 2016, pet. ref’d)
(mem. op., not designated for publication) (citing Williams v. State, 970 S.W.2d 566,
566 (Tex. Crim. App. 1998)). Accordingly, we modify the trial court’s judgment of
conviction on the count of evading arrest or detention with a vehicle to delete the
deadly-weapon finding.
III. Conclusion
Having overruled Appellant’s first three issues but having sustained his fourth,
we affirm the judgment on the count of continuous violence against the family, but
we modify the judgment on the count of evading arrest or detention with a vehicle to
delete the deadly-weapon finding, and we affirm that judgment as modified.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 1, 2026
23