TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00689-CR
Preston Joe Sharpnack, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-DC-13-900164, HONORABLE KAREN SAGE, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found Preston Joe Sharpnack guilty of aggravated assault with a deadly
weapon. The trial court assessed an agreed sentence of ten years in prison. Sharpnack contends that
the finding that he used his hand as a deadly weapon was not supported by the evidence. We will
affirm the judgment.
Though there is some disagreement about the nature and sequence of the events
that brought Sharpnack into contact with Matthew Casey on a downtown Austin street shortly
after midnight on Labor Day, those differences are irrelevant to the issue presented to this Court
on appeal. Sharpnack undisputedly punched Casey on the left side of his jaw. Casey fell—some
witnesses said he appeared to have been knocked unconscious immediately—and hit his head on the
sidewalk. He incurred a subdural hematoma near the base of his skull, his brain swelled, and he died
despite brain surgery and treatment.
We will review the record to determine whether, after viewing the evidence in the
light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable
doubt that Sharpnack’s hand was a deadly weapon. See Brister v. State, 449 S.W.3d 490, 493
(Tex. Crim. App. 2014). To be legally sufficient to sustain a deadly weapon finding, the evidence
must demonstrate that: (1) the object meets the statutory definition of a dangerous weapon; (2) the
deadly weapon was used or exhibited during the transaction from which the felony conviction was
obtained; and (3) other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798
(Tex. Crim. App. 2005). Only the first element is disputed in this appeal.
The definition of “deadly weapon” includes “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)(B).
A hand can be a deadly weapon because a closed fist striking a person’s head can cause serious
physical injury even when the blow does not cause death. Lane v. State, 151 S.W.3d 188, 191
(Tex. Crim. App. 2004). The State need not show that the hand actually caused serious bodily injury
so long as it shows that the hand was capable of causing serious bodily injury in the manner of its
use. Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.—Austin 1998, no pet.). The fact that an
item could be used as a deadly weapon does not prove that it is a deadly weapon—the statute
requires proof that the object was used or intended to be used in a way that made it capable of
causing serious bodily injury or death. Johnston v. State, 115 S.W.3d 761, 763 (Tex. App.—Austin
2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004).1
1
Sharpnack asserts that prosecutors seeking a deadly-weapon finding must show that the
object “caused a fatal wound.” See Parris v. State, 757 S.W.2d 842, 846 (Tex. App.—Dallas 1988,
pet. ref’d). That language was used in the context of a murder case and is inapplicable to this
2
Sharpnack contends that the evidence is insufficient to show that he used or exhibited
his hand as a deadly weapon. He contends that he was defending his female companion with whom
Casey had argued.2 He relies on medical expert testimony that the injury he directly inflicted by his
punch was not sufficient by itself to kill or cause serious bodily injury, and that Casey’s intoxication
made him susceptible to the unconsciousness that caused him to fall and hit his head on the sidewalk.
Sharpnack concludes that his punch was too attenuated from the fatal brain injury caused by Casey’s
subsequent contact with the sidewalk to classify his hand as a deadly weapon.
The neurosurgeon who treated Casey and the medical examiner both testified
regarding how a hand can be a deadly weapon. The neurosurgeon explained that both a punch and
hitting one’s head on a sidewalk can cause a blood clot in the brain. He testified that Casey’s
condition was consistent with being punched with such force that he fell and hit his head. The
neurosurgeon said that the blows caused the blot clot and brain swelling that led to Casey’s death.
The medical examiner testified that a blunt-force injury to the back of Casey’s head caused his death,
and she classified it as a homicide. She answered “yes” when asked if a person’s hand is capable
of causing death or serious bodily injury in the manner of its use when the person strikes another
with his hand, causing the person struck to fall and hit his head on the pavement and suffer a brain
injury that leads to death.
aggravated assault case. See id. at 843. No fatal wound must be shown under either the definition
of “deadly weapon” or the offense of aggravated assault. See Tex. Penal Code §§ 1.07(a)(17)(B)
(deadly weapon), 22.02(a) (aggravated assault).
2
The jury was charged on self-defense and defense of others, but necessarily rejected those
defenses in finding Sharpnack guilty of aggravated assault.
3
The State also relies on testimony about the nature and effect of Sharpnack’s punch
specifically. A bystander characterized the punch as “forceful” and audible from about 100 feet
away. The witness testified that Casey was not in a defensive stance and appeared to be caught off
guard by the punch. The witness said that Casey buckled and fell over immediately like a rag doll,
as if he was unconscious before he hit the ground. A paramedic who treated the victim testified that
Casey was unconscious and bleeding from his left ear, with a bruise on his left jaw.
We will examine these facts and arguments in light of guiding authority from cases
dealing with deadly-weapon findings. See Kennedy v. State, 402 S.W.3d 796, 800 (Tex. App.—Fort
Worth 2013, pet. ref’d); Johnston, 115 S.W.3d at 764; Jefferson, 974 S.W.2d at 892.
The fact that an object can be used to inflict serious bodily injury or death does not
make it a deadly weapon for all purposes. Johnston, 115 S.W.3d at 764. In that case, the defendant
used a cigarette to make one undisputedly “not serious” burn on a child’s hand. Id. This Court
found that, even though a cigarette could be used to cause burns that could result in serious bodily
injury or death, the evidence was insufficient to prove that Johnston intended to use the cigarette in
a manner that could cause serious bodily injury or death. Id.
Using the weapon in a manner that can cause serious injury or death is sufficient for
the deadly-weapon finding even if the victim does not suffer such injuries. Jefferson, 974 S.W.2d
at 892. In that case, this Court affirmed a jury finding that the defendant used his hands as a deadly
weapon when he punched the victim in the face several times, causing the victim’s nose to swell,
his cheek to have numbness, his jaw to be sore, the area around his eye to bruise, and his eyes to
suffer blurred vision. Id. The victim’s nose was not broken and he did not lose his sense of smell
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or taste. Id. He did not lose consciousness and was “not subject to a substantial risk of death.” Id.
This Court nevertheless found that the defendant’s hands were a deadly weapon based on evidence
that the defendant punched the victim in the face several times and that a person who is hit
repeatedly in the face by hands can suffer serious bodily injury such as brain damage, blindness, a
loss of the sense of smell, and blurred vision. Id.
A victim’s susceptibility to injury can affect whether an object used against him is
a deadly weapon. Kennedy, 402 S.W.3d at 800. “[A] person who uses a weapon to illegally assault
another person must take his victim as he finds [him].” Id. In that case, the defendant stealing a
television set from a store pushed a store employee out of his way. Id. at 801. The employee fell,
hit his head on the concrete floor, suffered a skull fracture and brain bruise, and died a few days later.
Id. The employee was suffering from late-stage liver disease that made him susceptible to extended
bleeding, and the medical examiner testified that the employee’s compromised condition meant that
the defendant’s push was capable of causing death or serious bodily injury. Id. The court held that,
under these circumstances, the evidence was sufficient to support a finding that the defendant used
his hands or the television in a manner that was capable of causing serious bodily injury or death.
Whether Sharpnack intended to kill Casey was not the issue before the jury and it
is not the issue before this Court. The question is whether Sharpnack’s hand was, in the manner of
its use or intended use, capable of causing serious bodily injury or death. See Tex. Penal Code
§ 1.04(a)(17)(B). There was testimony that a hand is theoretically capable of causing serious bodily
injury and death, and more specifically that a punch to the face that causes unconsciousness
and an unbroken fall to the sidewalk can and did result in death in this case. Though there was
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testimony that Casey angrily approached Sharpnack and his companion threatening to hit them, there
was also testimony that Casey was intoxicated and unsuspecting. In the latter scenario, Casey was
perhaps more vulnerable to the full force of Sharpnack’s punch. According to one witness, the
punch was powerful enough to be audible down a downtown block. Testimony showed that, when
punched, Casey fell instantly and hit his head on the sidewalk and later died from his injuries. On
this record, we cannot say that no rational jury could have found that Sharpnack’s hand was used or
intended to be used in a manner capable of causing serious bodily injury and death.
We affirm the judgment.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Goodwin and Field
Affirmed
Filed: July 9, 2015
Do Not Publish
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