1. "Is the evidence sufficient to prove aggravated assault with a deadly weapon when the State proves the offense alleged in the indictment, but there is a variance between the pleadings and proof as to the specific deadly weapon?"
2. "If, in the course of single criminal episode, Appellant assaults victim, immediately leaves the room to retrieve a deadly weapon and then continues assaultive conduct, does a court of appeals err in finding the evidence insufficient to prove that the deadly weapon was used 'during the commission' of the assault."
Hernandez struck the victim repeatedly with his hands. The victim asked for a glass of water and tried to close the door when Hernandez left the room to get it for her. Hernandez prevented her from closing the door and choked her while also pouring water down her throat. Hernandez was charged with aggravated assault—striking the victim—with a deadly weapon—water.
The court of appeals held the evidence insufficient to support the deadly weapon finding. First, the evidence failed to show the water was used or exhibited when he struck the victim or simultaneously with having struck her. Second, the State proved the use of a weapon different than water, i.e., hands and a different deadly weapon constitutes a material variance.
The State contends that the court of appeals' decision conflicts with Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012), which held that the variance between that act alleged—hit with hand—and what was proven at trial—thrown against wall, did not render the evidence insufficient. According to the State, the variance here involves an immaterial, non-statutory allegation. Aggravated assault is a result-oriented crime with the gravamen being the victim and bodily injury. The precise nature of the act or conduct is inconsequential. Additionally, the State contends that the court erred to create a rule that requires use of a deadly weapon at the moment of infliction of injury, as opposed to use during a criminal episode. Under the court's logic, a person could not be convicted of aggravated assault if he displayed a gun, put it in his pocket, punched the victim, and then retrieved the gun. Here, there was sufficient evidence to prove that Hernandez used the water as a deadly weapon.