Opinion issued April 8, 2010.
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-09-00209-CR
____________
LAMOND MAYRICE LAWRENCE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 7th District Court
Smith County, Texas[1]
Trial Court Cause No. 007-0916-08
MEMORANDUM OPINION
A jury found appellant, Lamond Mayrice Lawrence, guilty of burglary of a habitation with intent to commit a felony, i.e., aggravated assault, see Tex. Penal Code Ann. § 30.02 (Vernon 2003), and assessed punishment at confinement for life. Based on the jury’s finding appellant guilty as charged in the indictment, which included an allegation that a deadly weapon was used, the trial court made a finding that a deadly weapon was used in the offense. In two points of error, appellant contends that the evidence is legally and factually insufficient to support the deadly weapon finding. Determining that the evidence is legally and factually sufficient to sustain the deadly weapon finding, we affirm.
Background
One morning in March 2008, Gomorrha Duncan drove her son to school and returned to her townhouse. Upon entering her home, Duncan was struck in the back of her head by an assailant wearing a ski mask and gloves. Duncan fell to the floor while the assailant continued attacking her. During this attack, the assailant told Duncan that she was “going to learn.” Upon hearing her attacker’s voice, Duncan knew that it was appellant, whom she had dated “off and on” for four years before finally ending the relationship in October 2007.
After recognizing appellant’s voice, Duncan began pleading with him to stop, but appellant continued to assault her until she lost consciousness. When she regained consciousness, Duncan saw appellant standing over her holding a metal futon bed rail taken from her son’s bedroom. Duncan called out appellant’s name while pleading with him to stop attacking her. Upon this request, appellant sat on the couch and removed his ski mask.
Duncan then attempted to lift herself off the floor, at which time appellant grabbed her by the throat and began choking her “trying to make [her] pass out.” Appellant released her and entered the kitchen. When he returned, appellant again began to choke Duncan. When he was unsuccessful in choking Duncan into unconsciousness, appellant requested that Duncan go get her gun because “neither one of us is going to make it out of here today.”
After an unsuccessful attempt to locate the gun, Duncan informed appellant that she needed immediate medical attention because she was having difficulty breathing. Appellant escorted Duncan to his car, drove to his apartment, and forced Duncan to take “a little pink pill.” Duncan again insisted that she needed medical attention, at which time appellant took Duncan back to her car. Duncan attempted to drive herself to the hospital, but had to stop at a gas station because her injuries were too severe to continue driving. The clerk at the gas station called for an ambulance, and Duncan was subsequently escorted to the hospital. For four days, Duncan was in the hospital, where she was treated for a collapsed lung, broken ribs, and other injures that were described as life threatening by two medical experts.
The prosecution presented the testimony of an emergency room physician, Dr. James Ryder, who told the jury that Duncan had told him that appellant hit her with a piece of metal. Dr. Ryder also testified that Duncan’s collapsed lung could have been caused by “any type of blunt force trauma . . . [or by] a pipe or a rod or something made of metal.” A detective with the Tyler Police Department testified that, based on his experience, Duncan’s injuries were consistent with a blunt metal object. Also, Duncan told the detective and the emergency room physician that appellant had struck her repeatedly with his hands and a “black futon rail.”
Sufficiency of Evidence to Support Deadly Weapon Finding
In two points of error, appellant contends that the evidence is legally and factually insufficient to support a deadly weapon finding. The trial court’s finding was entered after the jury found appellant guilty as charged in the indictment. The indictment specifically placed the deadly weapon issue before the jury, thus, if supported by legally sufficient evidence, the trial court properly entered the affirmative finding. See Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (holding affirmative finding is de facto made when defendant if found “guilty as charged in the indictment,” if the indictment specifically places deadly weapon issue before jury).
A. Law Pertaining to Legal Sufficiency
In a legal sufficiency review, we consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to give their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). A jury is entitled to accept one version of the facts and to reject another, or to reject any part of a witness’s testimony. See id. In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). In reviewing the evidence, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id.
B. Law Pertaining to Factual Sufficiency
In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
In reviewing the factual sufficiency of the evidence, we afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court, which relies on the cold record. Id. The jury may choose to believe some testimony and to disbelieve other testimony. Id. at 707.
C. Law Pertaining to Deadly Weapons
The Code of Criminal Procedure authorizes a deadly weapon finding upon sufficient evidence that a defendant “used or exhibited” a deadly weapon during the commission of or flight from a felony offense.” Tex. Code Crim. Proc. Ann. art. 42.12, §3g(a)(2) (Vernon Supp. 2009); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). A deadly weapon is anything that “in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2009); Drichas, 175 S.W.3d at 798. The charge asked the jury to determine whether appellant “did use and exhibit a deadly weapon, to-wit: hands or metal rail or metal pipe that in the manner and means of its use and intended use was capable of causing death and serious bodily injury . . . .”
D. Analysis
Appellant contends that the evidence is legally and factually insufficient to support a deadly weapon finding. To hold the evidence legally sufficient to sustain a deadly weapon finding, the evidence must show that: (1) the object meets the Penal Code section 1.07(a)(17)(B) 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, 175 S.W.3d at 798; Tex. Penal Code Ann. § 1.07(a)(17)(B). Section 1.07(a)(17)(B) defines a “deadly weapon” as is anything that “in the manner of its use or intended use is capable of causing death or serious bodily injury.” Whether an object was used as a deadly weapon depends on the manner in which the object was used and whether the object was capable of producing death or serious bodily injury. Johnson v. State, 919 S.W.2d 473, 480 (Tex. App.—Forth Worth 1996, pet. ref’d).
Appellant asserts that “the treating physician testified that the fractures of the victim’s ribs and her collapsed lung were caused by blunt trauma,” but “he could not identify the type of object used.” Appellant also asserts that neither Duncan nor the police officers could definitively identify the object with which Duncan was struck. Appellant contends that the injuries suffered by Duncan were caused by kicking with a booted foot, and not from the use of appellant’s hands or a metal pipe or rail.
The record shows that Duncan, after regaining consciousness from the initial attack, saw appellant raise a futon bed rail over his head. Duncan informed both the emergency room physician and a police officer that appellant had struck her “repeatedly” with his fists and with a futon bed rail, indicating that she believed that she had been hit with the rail while unconscious. The record indicates that, as a result of the attack, Duncan suffered life threatening injuries, including broken ribs and a collapsed lung. We defer to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 310, 99 S. Ct. at 2789). Viewing the evidence in a light favorable to the jury’s verdict, a reasonable jury could have concluded that while Duncan was unconscious, appellant had been beating her with the rail that she saw raised over his head when she regained consciousness. We hold that the evidence is legally sufficient to support the deadly weapon finding. See Lane v. State, 151 S.W.3d 188, 192 (Tex. Crim. App. 2004) (holding that “the evidence presented at appellant’s trial was sufficient to persuade a rational trier of fact beyond a reasonable doubt that appellant used both his hand and his foot as ‘deadly weapons’ within the meaning of that phrase as defined by the Penal Code”). There was also evidence that appellant choked Duncan with his hands. Evidence that hands were used to choke or to strangle someone is sufficient to support a finding that the hands were deadly weapons. See Judd v. State, 923 S.W.2d 135, 140 (Tex. App.—Fort Worth 1996, pet. ref’d),
Appellant argues that the evidence is factually insufficient because Duncan never actually saw appellant hit her with the rail. Giving due deference to the jury’s weighing of the evidence, a neutral examination of the evidence shows that the evidence is not so weak that the jury’s finding that appellant used a deadly weapon is clearly wrong or manifestly unjust, or that the determination of guilt is against the great weight and preponderance of the evidence. We hold the evidence is factually sufficient to support a deadly weapon finding. See Bethel v. State, 842 S.W.2d 804, 807-808 (Tex. App.—Houston [1st Dist.] 1992, no pet.) (holding that testimony of victim and police officer along with hospital records stating that victim was struck by blunt object and feared for life were sufficient to support deadly weapon finding, despite fact that victim was unable to definitively identify object with which she was attacked).
We overrule appellant’s first and second points of error.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 47.2(b)
[1] The Texas Supreme Court transferred this appeal from the Court of Appeals for the Twelfth District of Texas. Misc. Docket No. 08-9177 (Tex. Dec. 15, 2008); see Tex. Gov’t Code Ann. § 73.001 (Vernon 2005) (authorizing transfer of cases).