Nathan Joel Nichols Jr., Appellant v. The State of Texas, Appellee

Reset A A Font size: Print

Court of Appeals of Texas, Beaumont.

Nathan Joel Nichols Jr., Appellant v. The State of Texas, Appellee

NO. 09–14–00167–CR

Decided: January 27, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.

MEMORANDUM OPINION

This is an appeal from a conviction for aggravated assault.  In two issues, appellant Nathan Joel Nichols Jr. contends:  (1) that the trial court committed reversible error by convicting him of a first-degree felony when the indictment charged him with only a second-degree felony;  and (2) that there was insufficient evidence to support a finding that the complainant suffered serious bodily injury.  We modify and affirm the judgment in part and reverse and remand for a new punishment hearing.

Background

Nichols was charged by indictment with the offense of aggravated assault.  After waiving his right to a jury trial, Nichols entered a plea of not guilty, and the case proceeded to a trial before the bench on February 6, 2014.  At the conclusion of the guilt-innocence phase, the trial court found Nichols guilty of aggravated assault.  The trial court then proceeded to the punishment phase of the trial and heard evidence relating to punishment, but did not assess punishment at that time.  On April 2, 2014, the trial court held a sentencing hearing, during which punishment was assessed and Nichols was sentenced to imprisonment for a term of twenty years in the Texas Department of Criminal Justice, Institutional Division.  This appeal followed.

Failure to Correctly Identify Degree of Offense

In his first issue, Nichols argues that the trial court committed reversible error by convicting him of first-degree aggravated assault when the indictment charged him only with aggravated assault as a second-degree felony.  Nichols appears to complain that the trial judge who presided over his sentencing hearing incorrectly identified the offense for which he had been found guilty at the guilt-innocence stage as a first-degree felony and that this error, in turn, caused the sentencing judge to convict him of a first-degree felony, rather than a second-degree felony as charged.  Nichols also contends that the trial court's error in identifying the degree of the offense caused the trial court to improperly assess his sentence by using the punishment range for a first-degree felony, rather than a second-degree felony.  Nichols claims that he is entitled to reformation of the judgment to reflect that his conviction was for second-degree aggravated assault.  In addition, he argues that because the trial court's error was harmful, we should reverse the portion of the judgment imposing punishment and remand the case to the trial court for a new punishment hearing.

The State concedes that Nichols was charged with and found guilty of a second-degree felony and that the trial judge who presided over the sentencing hearing incorrectly identified the offense as a first-degree felony.  The State argues, however, that the error was harmless.  Accordingly, the State contends that the proper remedy is not reversal, but simply reformation of the judgment to reflect that Nichols was convicted of second-degree aggravated assault.

The indictment in this case alleges that Nichols “did then and there intentionally and knowingly and recklessly cause serious bodily injury to [the complainant] ․ by SHOOTING THE SAID COMPLAINANT WITH A DEADLY WEAPON, TO–WIT:  A FIREARM[.]”  Section 22.01 of the Texas Penal Code provides, in relevant part, that a person commits the offense of assault if he or she “intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse[.]”  Tex. Penal Code Ann. § 22.01(a)(1) (West Supp.2015).1  A person commits aggravated assault if he or she “commits assault as defined in § 22.01 and the person:  (1) causes serious bodily injury to another, including the person's spouse;  or (2) uses or exhibits a deadly weapon during the commission of the assault.”  Id. § 22.02(a) (West 2011).  Generally, aggravated assault is a second-degree felony.  Id. § 22.02(b).  However, it becomes a first-degree felony if:

(1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;

(2) regardless of whether the offense is committed under [Section 22.02] (a)(1) or (a)(2), the offense is committed:

(A) by a public servant acting under color of the servant's office or employment;

(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime;  or

(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer;  or

(3) the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and:

(A) knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle;

(B) is reckless as to whether the habitation, building, or vehicle is occupied;  and

(C) in discharging the firearm, causes serious bodily injury to any person.

Id.

As pled, the indictment charges Nichols with committing aggravated assault under section 22.02(a).  See id. §§ 22.01(a)(1), 22.02(a).  The indictment does not contain any allegations that would raise the charged offense to first-degree aggravated assault under section 22.02(b)(1), (b)(2), or (b)(3).  See id. § 22.02(b).  Therefore, we agree with the parties that the indictment in this case charges Nichols only with aggravated assault as a second-degree felony.  See id.

As noted, Nichols pled not guilty to the charges in the indictment, and the case was tried to the bench.  At the conclusion of the guilt-innocence phase, the trial judge made the following pronouncement on the record:

THE COURT:  Okay. Mr. Nichols, I think with the evidence that's been presented today[,] the Court has no option but to find you guilty.  There may be some mitigating damages towards what punishment will be appropriate for you, but the Court will find you guilty of the charges against you in this case of aggravated assault with a deadly weapon.

(Emphasis added).  These statements by the trial court make clear that the trial court, as factfinder, found Nichols guilty as charged in the indictment.  Because the indictment charged Nichols only with aggravated assault as a second-degree felony, the record indicates that the trial court found Nichols guilty of second-degree aggravated assault.  See Milczanowski v. State, 645 S.W.2d 445, 447 (Tex.Crim.App.1983) (explaining that when the trial court in a bench trial references the charges in the charging instrument in pronouncing its decision as to the defendant's guilt, a reviewing court may look to the charging instrument in determining the offense for which the defendant was found guilty).

Following the trial court's pronouncement of guilt, the trial court proceeded to the punishment phase of the trial.  After hearing the evidence relating to punishment, the trial court did not immediately assess punishment, but instead ordered a presentence investigation report and recessed the remainder of the proceedings pending preparation of the report.  A sentencing hearing was later held on April 2, 2014.  Prior to the date of the sentencing hearing, however, the trial judge who had presided over the guilt-innocence phase and who had heard the evidence relating to punishment stepped down from the bench.  Therefore, a different trial judge presided over the sentencing hearing.  During the sentencing hearing, the following exchange took place between the trial judge and the parties regarding the degree of the offense for which Nichols had been found guilty:

THE COURT:․  Mr. Nichols, you were previously—let's see.  You had a bench trial ․ on February 6th of 2014 in which [the trial judge who presided over the guilt-innocence phase] found you guilty for the offense of aggravated assault, a second-degree felony—

[PROSECUTOR]:  It's a first degree, I believe.  My reading of the indictment is it alleged serious bodily injury with the use of a deadly weapon, which I think makes it a first.

THE DEFENDANT:  It says “second” on there.

[PROSECUTOR]:  If I read the indictment and check the code, I believe that's what we—cause serious bodily injury with a deadly weapon.  Yeah. 22.02.

THE COURT:  Yeah. Okay. That's a first degree.  Maybe y'all all knew that already.  I said maybe y'all already knew that, first degree?

[PROSECUTOR]:  Yes, ma‘am.

THE COURT:  Okay. Okay. Mr. Nichols, I'm sorry.  You were previously found guilty of aggravated assault, a first-degree felony.

The record, therefore, reflects that the trial judge who presided over the sentencing hearing identified the offense for which Nichols had been found guilty as a first-degree felony.  As noted, however, the indictment in this case charged Nichols with only aggravated assault as a second-degree felony, and the factfinder at the guilt-innocence phase found Nichols guilty of second-degree aggravated assault as charged.  Contrary to the prosecutor's argument at the sentencing hearing, the indictment's allegations of serious bodily injury and use of a deadly weapon, without more, were not sufficient to raise the offense to a first-degree felony.  See Tex. Penal Code Ann. § 22.02(a), (b).  We, therefore, conclude that the sentencing judge erred by identifying the offense for which Nichols had been found guilty as a first-degree, rather than a second-degree, felony.

In its brief, the States notes that Nichols failed to object to the trial court's characterization of the offense as a first-degree felony.  The State does not expressly argue that Nichols waived his right to complain about this error on appeal.  However, to the extent the State's brief can be construed as making this argument, we disagree with it.  Nichols's argument that the sentencing judge incorrectly identified the degree of the offense in this case is essentially a complaint that the sentencing judge convicted and sentenced him under the wrong statute and considered the wrong range of punishment.  Absent a defendant's effective waiver, the defendant may raise for the first time on appeal a complaint that the trial court:  (1) failed to identify the correct statute under which a defendant is to be sentenced and the range of punishment it carries, and (2) failed to consider the entire range of punishment in sentencing a defendant.  Grado v. State, 445 S.W.3d 736, 741 (Tex.Crim.App.2014).  Nothing in the record shows that Nichols effectively waived these rights in this case.  We, therefore, reject the State's claim, if any, that Nichols failed to preserve error.  See id.

The State's primary contention in response to Nichols's first issue is that the sentencing judge's error in this case was harmless.  The sentencing judge's error—incorrectly identifying the degree of the offense for which Nichols was found guilty—is non-constitutional error.  See Grado v. State, No. 07–11–00468–CR, 2013 WL 3355743, at *4 (Tex.App.—Amarillo June 28, 2013) (mem. op., not designated for publication), aff'd, 445 S.W.3d 736 (Tex.Crim.App.2014) (applying harm analysis for non-constitutional error to trial court's failure to identify correct statute under which defendant was to be sentenced and consideration of incorrect punishment range);  Hernandez v. State, No. 05–03–00107–CR, 2003 WL 22017228, *1, 3–4 (Tex.App.—Dallas Aug. 27, 2003, no pet.) (not designated for publication) (applying harm analysis for non-constitutional error to trial court's misidentification of offense as a first-degree felony, rather than a second-degree felony, and trial court's consideration of incorrect punishment range).  We, therefore, conduct our harm analysis under Texas Rule of Appellate Procedure 44.2(b).  See Tex.R.App. P. 44.2(b).

Under Rule 44.2(b), we must disregard the error unless it “affect[ed][the] substantial rights” of the defendant.  Id. A non-constitutional error does not affect a defendant's substantial rights unless, after examining the record as a whole, we “ ‘conclude[ ] that [the] error may have had ‘substantial influence’ on the outcome of the proceeding.' ”  Burnett v. State, 88 S.W.3d 633, 637 (Tex.Crim.App.2002) (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988)).  Stated differently, “[a] conviction must be reversed for non-constitutional error if the reviewing court has grave doubt that the result of the trial was free from the substantial effect of the error.”  Barshaw v. State, 342 S.W.3d 91, 94 (Tex.Crim.App.2011).  “ ‘Grave doubt’ means that ‘in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.’ ”  Id. (quoting Burnett, 88 S.W.3d at 637–38).  “[I]n cases of grave doubt as to harmlessness[,] the petitioner must win.”  Burnett, 88 S.W.3d at 638.

Nichols argues that the trial court's error in identifying the degree of the offense was harmful because it led the trial court to sentence him using the punishment range for a first-degree felony, rather than a second-degree felony.  He argues that because the trial court improperly considered the punishment range applicable to a first-degree felony when it assessed his punishment, his case should be remanded to the trial court for a new punishment hearing.  The State, on the other hand, argues that the trial court's error was harmless because the twenty-year sentence assessed by the trial court falls within the statutory punishment range for a second-degree felony and is not unreasonable or disproportionate.  The State, therefore, contends that there is no need to remand the case or disturb the sentence assessed below.

The punishment range for a first-degree felony is five to ninety-nine years or life in prison and a fine of up to $10,000.  Tex. Penal Code Ann. § 12.32 (West 2011).  The punishment range for a second-degree felony, by contrast, is two to twenty years in prison and a fine of up to $10,000.  Id. § 12.33. Therefore, it is true, as the State contends, that the twenty-year sentence assessed by the trial court falls within the permissible range of punishment for both a first-degree and a second-degree felony.  See id. §§ 12.32, 12.33.  However, as noted, the sentencing judge—most likely influenced by the prosecutor's mistaken argument regarding the degree of the offense—expressly stated on the record her belief that the offense for which Nichols had been found guilty was a first-degree felony.  Almost immediately thereafter, and without further discussion of the degree of the offense, the sentencing judge assessed Nichols's punishment at twenty years in prison.  The written judgment signed by the sentencing judge identifies the offense for which Nichols was convicted as “AGGRAVATED ASSAULT[,]” but lists the degree of the offense as a “1ST DEGREE FELONY[.]”  Further, the pre-sentence investigation report, which the sentencing judge reviewed in assessing Nichols's punishment, identifies the offense as a first-degree felony.  These facts, together, lead us to conclude that the sentencing judge, in all likelihood, used the punishment range for a first-degree felony, rather than a second-degree felony, when she assessed Nichols's sentence in this case.

If the trial court believed, as the record indicates, that Nichols was subject to the punishment range for a first-degree felony, the twenty-year sentence assessed by the trial court represents a sentence on the lower end of the punishment range that was considered.  See id. § 12.32. That sentence, however, represents the maximum confinement allowable under the punishment range for a second-degree felony.  See id. § 12.33. Given the clear indications in the record that the trial court considered the punishment range for a first-degree felony in assessing Nichols's sentence, and considering the fact that the sentence assessed is on the lower end of that range, we cannot presume that the trial court would have assessed the same twenty-year sentence if it had correctly identified the offense as second-degree aggravated assault and properly considered the punishment range for a second-degree felony.  We, therefore, have grave doubts that the punishment assessed was free from the substantial effect of the trial court's error and conclude that the error affected Nichols's substantial rights.  See Tex.R.App. P. 44.2(b);  State v. Rowan, 927 S.W.2d 116, 118 (Tex.App.—Houston [1st Dist.] 1996, no pet.) (remanding case for new punishment hearing after trial judge sentenced defendant for a Class B misdemeanor using the punishment range for a Class A misdemeanor, even though punishment assessed fell within Class B punishment range);  see also Grado, 2013 WL 3355743, at *1–5 (finding trial court's failure to correctly identify statute under which defendant was to be sentenced and consideration of wrong punishment range to be harmful under Rule 44.2(b), even though the punishment assessed fell within the correct range of punishment);  Hernandez, 2003 WL 22017228, at *1–2, 4 (concluding that trial court's misidentification of offense as a first-degree, rather than a second-degree, felony and its consideration of punishment range for first-degree felony constituted harmful error under Rule 44.2(b), although the punishment assessed fell within the punishment range for a second-degree felony).  Because the trial court's error occurred in the punishment phase of trial, we conclude that Nichols is entitled to a new hearing as to punishment only.  See Tex.Code Crim. Proc. Ann. art. 44.29(b) (West Supp.2015);  Rent v. State, 982 S.W.2d 382, 385 (Tex.Crim.App.1998).

We also address the parties' request that we modify the judgment to show that the offense for which Nichols was convicted is a second-degree felony.  An appellate court has the power to modify the judgment of the trial court to make the record speak the truth when it has the necessary data and information to do so.  See Banks v. State, 708 S.W.2d 460, 462 (Tex.Crim.App.1986);  Hutton v. State, 313 S.W.3d 902, 909 (Tex.App.—Amarillo 2010, pet. ref'd);  see Tex.R.App. P. 43.2(b).  When a judgment improperly reflects the findings of the factfinder, the proper remedy is modification of the judgment to conform to the true findings of the factfinder as reflected in the record.  See Milczanowski, 645 S.W.2d at 447;  Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet. ref'd).  An appellate court's power to modify a judgment includes the power to correct clerical errors that could have been corrected by the trial court in a judgment nunc pro tunc.  Asberry, 813 S.W.2d at 529.  However, an appellate court's authority to modify the judgment is not limited to correcting mistakes of a clerical nature.  See Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App.1993);  Campos v. State, 927 S.W.2d 232, 237 (Tex.App.—Waco 1996, no pet.);  see also Parra v. State, No. 13–13–00490–CR, 2015 WL 1631862, at *9 (Tex.App.—Corpus Christi Apr. 9, 2015, pet. ref'd) (mem. op., not designated for publication) (modifying judgment under Rule 43.2(b) to set aside conviction for aggravated kidnapping where conviction violated double jeopardy protections).

Here, the record reflects that Nichols was indicted for aggravated assault as a second-degree felony and that the trial judge at the guilt-innocence phase found Nichols “guilty of the charges against [him]” and, thus, found Nichols guilty of second-degree aggravated assault as charged.  Although the judge at the subsequent sentencing hearing mistakenly characterized the degree of the offense for which Nichols had been found guilty as a first-degree felony, the record clearly reflects that the factfinder at the guilt-innocence phase found Nichols guilty of second-degree aggravated assault as charged.  Nothing in the record suggests that the judge at the sentencing hearing was attempting to alter or add to the fact findings made by the trial judge at the guilt-innocence phase of the trial.  To the contrary, the record indicates that the sentencing judge was merely attempting to recite the prior findings made by the trial judge at the guilt-innocence phase and, in doing so, incorrectly construed the offense as a first-degree felony.  Based on these facts, we find that the judgment's recitation that the “Degree of Offense” is a “1ST DEGREE FELONY” is incorrect and inaccurately reflects the true findings of the factfinder as reflected in the record.  We, therefore, modify the trial court's judgment to reflect that the degree of the offense is a second-degree felony.  See Tex.R.App. P. 43.2(b);  Bigley, 865 S.W.2d at 27;  Norman v. State, 588 S.W.2d 340, 348 (Tex.Crim.App. [Panel Op.] 1979);  Knight v. State, 581 S.W.2d 692, 694 (Tex.Crim.App. [Panel Op.] 1979);  see also Williams v. State, No. 03–09–00169–CR, 2010 WL 3515813, at *9 (Tex.App.—Austin Sept. 10, 2010, pet. ref'd) (mem. op., not designated for publication) (modifying judgment to reflect that the defendant was convicted of a state-jail felony where the defendant was charged and found guilty of a state-jail felony, but the trial court mistakenly characterized the offense as a third-degree felony during the punishment phase of the trial).  Nichols's first issue is sustained.

Sufficiency of the Evidence

In his second issue, Nichols contends that the evidence is legally insufficient to support a finding that the complainant in this case suffered serious bodily injury.2  In response, the State argues that a defendant commits aggravated assault when he or she commits assault as defined in section 22.01 and either:  (1) causes serious bodily injury to another;  or (2) uses or exhibits a deadly weapon during the commission of the assault.  The State argues that because the indictment in this case alleges that Nichols committed aggravated assault by causing serious bodily injury and by use of a deadly weapon during the assault, evidence of either aggravating factor is sufficient to uphold the conviction.  The State, therefore, contends that even if the evidence is insufficient to support a finding of serious bodily injury, the trial court's unchallenged deadly weapon finding is sufficient to establish the aggravating factor necessary to support a conviction for second-degree aggravated assault.

In evaluating the sufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the defendant guilty of all of the elements of the offense beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Johnson v. State, 364 S.W.3d 292, 293–94 (Tex.Crim.App.2012).  To determine whether the State met its burden to prove the defendant's guilt beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial.  Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).  The hypothetically correct jury charge “ ‘accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.’ ”  Johnson, 364 S.W.3d at 294 (quoting Malik, 953 S.W.2d at 240).

As noted above, the indictment in this case alleges that Nichols “did then and there intentionally and knowingly and recklessly cause serious bodily injury to [the complainant] ․ by SHOOTING THE SAID COMPLAINANT WITH A DEADLY WEAPON, TO–WIT:  A FIREARM[.]”  The indictment clearly alleges that Nichols intentionally, knowingly, and recklessly caused serious bodily injury to the complainant and, thus, alleges an offense under section 22.02(a)(1).  See Tex. Penal Code Ann. § 22.02(a)(1);  Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App. [Panel Op.] 1978).  In addition, the indictment's allegation of “serious bodily injury” to the complainant necessarily includes an allegation of “bodily injury” to the complainant.  See Tex. Penal Code Ann. § 1.07(46) (West Supp.2015).  The indictment, therefore, also alleges an offense under section 22.02(a)(2) in that it states that Nichols intentionally, knowingly, and recklessly caused bodily injury to the complainant by shooting the complainant with a deadly weapon (i.e., by using a deadly weapon during the assault).  See id. § 22.02(a)(2);  Wade v. State, 951 S.W.2d 886, 888–89 (Tex.App.—Waco 1997, pet. ref'd).  Thus, as pled, the indictment in this case effectively charges Nichols with two alternative statutory means of committing aggravated assault:  (1) by causing serious bodily injury to the complainant;  and (2) by using a deadly weapon—namely, a firearm—during the commission of the assault.3  See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(1), (2);  Sidney v. State, 560 S.W.2d 679, 680–81 (Tex.Crim.App.1978) (concluding in aggravated robbery case that the indictment charged the defendant with two separate and alternative statutory means of aggravation, even though the indictment did not expressly use the word “and” or “or” to allege the two alternative means).  The trial judge who served as the factfinder at the guilt-innocence phase, however, found Nichols guilty only of aggravated assault with a deadly weapon.  See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2).  Therefore, the hypothetically correct jury charge for the offense for which Nichols was actually found guilty—aggravated assault under section 22.02(a)(2)—would state the elements of the offense as follows:  (1) Nichols (2) intentionally, knowingly, or recklessly (3) caused bodily injury to the complainant (4) by shooting the complainant with a deadly weapon, namely, a firearm.  See id. §§ 22.01(a)(1), 22.02(a)(2);  Wade, 951 S.W.2d at 889;  see also Malik, 953 S.W.2d at 240.

In his brief, Nichols challenges only the sufficiency of the evidence to support a finding of serious bodily injury.  Serious bodily injury, however, is not an element of aggravated assault under section 22.02(a)(2).  See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a)(2);  Wade, 951 S.W.2d at 889.  Nichols does not contend that the evidence is insufficient to support the elements of aggravated assault with a deadly weapon under section 22.02(a)(2) as set forth in the hypothetically correct jury charge for this case.  Because Nichols does not challenge the sufficiency of the evidence supporting any of the elements of the offense for which Nichols was found guilty, Nichols's sufficiency challenge must fail.  We overrule Nichols's second issue.

Further, we note that the trial court's judgment states that the “Statute for Offense” is “22.02(a)(1)[,]” which governs aggravated assault by causing serious bodily injury.  The record, however, reflects that the factfinder at the guilt-innocence phase found Nichols guilty of aggravated assault with a deadly weapon.  See Tex. Penal Code Ann. § 22.02(a)(2).  We, therefore, modify the judgment to delete the statutory section number “22.02(a)(1)” under the heading “Statute for Offense” and replace it with “22.02(a)(2)[.]” See Tex.R.App. P. 43.2(b);  Bigley, 865 S.W.2d at 27–28;  Asberry, 813 S.W.2d at 529–30.

Conclusion

Because we have concluded that the judgment incorrectly identifies the statute and the degree of the offense for which Nichols was found guilty, we modify the judgment:  (1) to delete the phrase “1ST DEGREE FELONY” under the heading “Degree of Offense” and replace it with the phrase “2ND DEGREE FELONY[;]” and (2) to delete the statutory section number “22.02(a)(1)” under the heading “Statute for Offense” and replace it with “22.02(a)(2)[.]” See Tex.R.App. P. 43.2(b).  As modified, we affirm the portion of the judgment finding Nichols guilty of aggravated assault.  See id.  Because we find error in the punishment portion of the judgment, we reverse the portion of the judgment imposing punishment, and we remand the cause to the trial court for a new punishment hearing.  See Tex.Code Crim. Proc. Ann art. 44.29(b).

AFFIRMED AS MODIFIED IN PART;  REVERSED AND REMANDED IN PART.

FOOTNOTES

1.   The Legislature amended section 22.01 of the Texas Penal Code after the date of the alleged offense in this case;  however, we cite to the current version of the statute because the subsequent amendments do not affect our analysis in this appeal.

2.   Specifically, Nichols argues that “even if the indictment had actually alleged the offense of aggravated assault as a first[-]degree felony,” the evidence is legally insufficient to support a finding that the complainant in this case suffered serious bodily injury.  As set forth above, Nichols was indicted for and found guilty of aggravated assault as a second-degree felony, not a first-degree felony.  Nevertheless, because “serious bodily injury” is an element of second-degree aggravated assault under section 22.02(a)(1), and because the indictment in this case alleged that Nichols caused “serious bodily injury” to the complainant, we will address the merits of Nichols's second issue.  See Tex.R.App. P. 38.1(f), 38.9;  Ramsey v. State, 249 S.W.3d 568, 576 n.5 (Tex.App.—Waco 2008, no pet.) (quoting Tex.R.App. P. 38.1(e) (amended 2008)) (noting that appellate courts are required to “construe an appellant's brief liberally and review ‘every subsidiary question that is fairly included’ within a particular issue or point”).

3.   The caption of the indictment identifies the statute for the charged offense as “SEC. 22.02(a)(1)[.]” The caption, however, is not part of the charging instrument.  Stansbury v. State, 82 S.W.2d 962, 964 (Tex.Crim.App.1935);  Adams v. State, 222 S.W.3d 37, 53 (Tex.App.—Austin 2005, pet. ref'd).  When the offense identified in the caption varies from the offense or offenses alleged in the body of the indictment, the body controls.  See Adams, 222 S.W.2d at 52–53;  Rager v. State, No. 09–10–00259–CR, 2011 WL 2732242, at *1 (Tex.App.—Beaumont July 13, 2011, no pet.) (mem. op., not designated for publication).  Because the body of the indictment in this case contains allegations sufficient to allege aggravated assault under sections 22.02(a)(1) and 22.02(a)(2), the allegations in the body of the indictment control.

CHARLES KREGER, Justice