## Facts

- Eddie Samuel Tullos entered open guilty pleas to two aggravated-assault indictments arising from one incident involving Michael Smith and Horace Smith.
- Michael Smith was stabbed in the back with a scratchawl (an icepick-like tool used to mark sheet metal).
- When Michael cried out, his father Horace came to assist with a hammer, and Tullos shot Horace in the hip with a handgun.
- One indictment (Michael Smith) alleged aggravated assault by using a deadly weapon “to threaten” Michael with imminent bodily injury.
- The evidence showed Tullos approached Michael from the side or behind, said nothing, stabbed him, walked away, and made no threats before or after the stabbing; Michael did not see the weapon or anticipate the attack.
- The other indictment (Horace Smith) concerned the shooting; no sufficiency challenge was raised as to that conviction.

## Issues

1. Whether, under Texas Code of Criminal Procedure article 1.15, the State produced sufficient evidence to support a felony guilty plea where the indictment alleged aggravated assault by “threat,” but the proof showed only an unannounced stabbing from behind without any threat.
2. Whether Tullos’s in-court admissions and guilty plea waived or cured the State’s failure to prove the specific “threat” allegation pleaded in the indictment.

## Decision

- The court affirmed the conviction for aggravated assault against Horace Smith (shooting).
- The court reversed the conviction for aggravated assault against Michael Smith (stabbing) because the evidence did not support the indictment’s “threat” allegation.
- The court remanded the Michael Smith cause for entry of an acquittal.

## Legal Principles

- In a felony case, a guilty plea does not relieve the State of its burden under Tex. Code Crim. Proc. art. 1.15 to introduce sufficient evidence supporting the plea.
- If the State fails to introduce evidence sufficient to support a guilty plea as charged, the proper remedy is acquittal.
- Proof must conform to the indictment’s theory; when the indictment alleges aggravated assault by threatening the victim with imminent bodily injury using a deadly weapon, evidence of actual bodily injury alone does not establish the charged “threat.”
- A defendant’s admissions during the plea proceeding do not cure an article 1.15 deficiency when the admissions do not establish the specific manner and means alleged (here, a threat).

## Conclusion

The court held that article 1.15 requires evidence matching the indictment even after a felony guilty plea; because the State proved only an unannounced stabbing and not a threat as alleged, the Michael Smith conviction was reversed and an acquittal ordered, while the Horace Smith conviction was affirmed.


Tullos v. State, 698 S.W.2d 488 (Tex. App.—Corpus Christi 1985)