IN THE
TENTH COURT OF APPEALS
No. 10-02-00347-CV
IN THE MATTER OF K.B., A JUVENILE
From the County Court
Coryell County, Texas
Trial Court # JV-1560
DISSENTING OPINION
The gang went looking for a fight. And despite the majority’s determination that all accomplice testimony was corroborated, it ignores the testimony of several witness.
Jeremy testified that while he was fighting Kutchka, the victim, a metal pipe was swung close to his head. He did not see who was swinging the pipe. Jeremy did not believe the victim used the pipe against him because Kutchka did not use any weapons during the fight. He suspected the pipe was meant to be used on Kutchka. After the fight, Jeremy saw the pipe at Kutchka’s feet. He took it and threw it in a field. When Jeremy found out he was being charged with assault with a metal pipe, he called K.B. Jeremy was trying to find out if someone said he had used the pipe. K.B. told Jeremy that he had used the metal pipe and that he had almost hit Jeremy with it.
Other witnesses testified that K.B. (1) had two metal wrenches in his possession the night of the fight; (2) kicked Kutchka in the head; (3) approached Kutchka’s wife after the fight and, holding the head of a wrench, threatened her with it; and (4) hit Kutchka twice in the chest.
Because of the fight, Kutchka sustained gashes on his head, stomach, and from the top of his shoulder down to the middle of his back. He was bleeding from these injuries. He went to the hospital because of these injuries. He suffered a concussion. Scars of the injuries were still visible at the time of the trial. Kutchka’s wife stated that he was beaten with a two-by-four, a metal pipe, and a brick that was thrown.
What the State needed to prove as a deadly weapon was 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. 2004). A brief summary of the evidence we have is as follows: (1) a victim who was seen beaten with a metal pipe, suffered a concussion, and was scarred; and (2) a metal pipe in the hands of a person, who admitted to another that he used the pipe, who almost struck his fellow aggressor in the head with it, who was seen beating on the victim with at least his hands and feet, who carried wrenches that night, and who threatened another with a wrench after the fight. In the light most favorable to the verdict, this evidence is sufficient for a factfinder to conclude that the metal pipe, in the manner of its use or intended use, was capable of causing death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
Because the majority finds the evidence legally insufficient to prove the deadly weapon and reverses the trial court’s judgment, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed June 16, 2004