11th Court of Appeals
Eastland, Texas
Opinion
Andrie Smith
Appellant
Vs. No. 11-01-00106-CR B Appeal from Dallas County
State of Texas
Appellee
Memorandum Opinion
Andrie Smith waived his right to a trial by jury and pleaded Anot guilty@ to the indictment for aggravated assault and Anot true@ to the enhancement paragraphs (which alleged a prior felony conviction for burglary of a habitation in 1989 and a prior felony conviction for aggravated assault with a deadly weapon in 1991). After a nonjury trial, the trial court found that appellant was guilty of aggravated assault, that he used his hands as a deadly weapon during the assault, and that the two enhancement paragraphs were true. The trial court sentenced appellant to confinement for 60 years. We will modify the trial court=s judgment to show that there was no plea bargain and that appellant did not plead Atrue@ to the enhancement paragraphs. As modified, the judgment of the trial court is affirmed.
Issues for Appellate Review
Appellant presents three issues for appellate review. In Issues Nos. 1 and 2, he argues that the evidence is Alegally insufficient@ and Afactually insufficient@ to support the conviction for aggravated assault because the assault was committed with his hands and fists[1] and because the victim did not suffer Aserious bodily injury.@ Appellant argues in Issue No. 3 that the judgment should be modified to show that appellant pleaded Anot true@ to the enhancement paragraphs and that there was no plea bargain agreement. The State has no objection to appellant=s request to correct these two clerical errors. Issue No. 3 is sustained; and, pursuant to TEX.R.APP.P. 43.2(b), this court modifies the judgment of the trial court to correct the clerical errors.
Sufficiency of the Evidence
The trial court, as the finder of fact, was the sole judge of the weight and credibility of the testimony. Adelman v. State, 828 S.W.2d 418 (Tex.Cr.App.1992); DeBolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980); Austin v. State, 794 S.W.2d 408 (Tex.App. - Austin 1990, pet=n ref=d). The trial court was free to believe all or any part of the testimony of each of the witnesses. This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App.2000). We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder. Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).
In reviewing the Alegal sufficiency@ of the evidence, we must look at the evidence Ain the light most favorable to the prosecution@ and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. 307 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Cr.App.2000). In reviewing the Afactual sufficiency@ of the evidence, we must look at the evidence in a neutral light and determine whether the finding of guilt is so against the great weight of the evidence that it is Aclearly wrong and unjust.@ See, e.g., Clewis v. State, supra at 135.
The definition of a Adeadly weapon@ in TEX. PENAL CODE ANN. ' 1.07(17)(B) (Vernon 1994) includes Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ (Emphasis added) While hands and fists are not per se deadly weapons, the fact finder may find that they were used as deadly weapons if the evidence supports that finding. See and compare Turner v. State, 664 S.W.2d 86, 88 (Tex.Cr.App.1983). This court has affirmed deadly weapon findings based upon a defendant=s use of his hands or feet in a manner capable of causing serious bodily injury. See Clark v. State, 886 S.W.2d 844, 845 (Tex.App. - Eastland 1994, no pet=n),
which was cited and followed by Brooks v. State, 900 S.W.2d 468 (Tex.App. - Texarkana 1995, no pet=n). In Brooks v. State, supra at 472, the Texarkana Court of Appeals stated:
To support a deadly weapon finding, the State must show only that the accused=s hands in the manner of their use were capable of causing death or serious bodily injury. It need not show that the hands actually did cause serious bodily injury. (Emphasis added; Citation omitted)
Relevant Evidence
The State=s first witness, Kim Chiv, was originally from Vietnam and has been in this country since 1981. He was a partner at a grocery store on Jupiter Road, and he was working there on the evening of July 21, 2000, when a man came in and started beating a woman. Chiv said that it was Aterrible@ and that the man was Abeating her with his fists.@ The man left the store, but he came back in and started beating her again. Chiv called the police, and the man left again. Chiv tried to lock the doors, but the man came back into the store and started hitting the woman again. Chiv said that the woman appeared to be in pain, that she was in danger, and that he was scared. Chiv was not able to identify appellant, but other testimony shows that appellant was the man who was beating the woman. On cross-examination, Chiv said that the woman never fought back and that no one tried to make the man stop because they were scared.
The State=s second witness, Niqua Lasha Jenkins, was the victim of the assault. She was the mother of appellant=s young daughter. She and appellant had lived together, but she moved out because their relationship Ahad gotten bad.@ On July 21, 2000, one of her friends was taking Jenkins and her three children back to her home from her mom=s house. Jenkins asked her friend to stop at the convenience store on Jupiter Road so that she could get some food and other things. Her friend stayed in the car with the three children. While she was standing in line to pay for her purchases, appellant came into the store. Jenkins said that appellant called her a Abitch@ and hit her with his fists Aso hard [that her] glasses flew halfway across the store.@ Jenkins said that appellant hit her so hard that he knocked her into the newspaper rack and that it Adazed@ her. She said that, after he hit her and yelled at her, he left the store. Then he came back into the store and started hitting her again. She said that he hit her in the back of her head, her back, and everywhere. She said that he was using both fists, like she was a man, and that he was hitting her Aharder and harder.@ She said that appellant had previously told her that he was going to kill her and that she was in Aso much pain@ that it was worse than when her three children were born. Then she said that appellant left again. After that, he came back into the store a third time and started hitting her again. After appellant left for the third time, her friend came in and found her Ajust laying there.@ Her friend helped her back to his car. She said that she was vomiting and that her daughter was screaming. The paramedic talked her into going to the emergency room, and she was admitted to the hospital. Her parents came to the hospital. She was in the intensive care unit because she had a ruptured spleen, and she had to have a blood transfusion because she was bleeding internally. She was in the hospital from July 22 until July 31. Her jaw was swollen, and her eye was swollen. She had so many knots on her head that she could not comb her hair. Her jaw was so sore that her teeth hurt. When he called her from the jail, appellant told her to drop the charges or that he would kill her when he got out. She admitted on cross-examination that her jaw was not broken, that she had recovered from the injury to her spleen, and that she had not seen any doctors for the migraine headaches.
The State=s third witness, Delores Jenkins, was the mother of the victim of the assault. She described the condition of her daughter when she and her husband went to the emergency room at the hospital on the night of the assault.
The State=s fourth witness, Walter Dunagin, was the paramedic who treated the victim on the night of the assault. He described her injuries for the jury. The hospital records were also admitted into evidence. The paramedic said that the victim=s left eye was closed, that her jaw was Aswollen so big@ that he thought it was broken, and that she told him that her stomach was Ahurting real bad.@ She also told him that her pain was Aworse than giving birth.@ It was his opinion that she needed to go to the emergency room at the hospital. Dunagin also gave his opinion that the hands and fists which were used to cause these injuries had been used as deadly weapons.
The State=s fifth witness, Geraldo Huante, was the Dallas Police Officer who was called to the scene of the assault on July 21, 2000. When he first came into contact with the victim, she was Acrouched down@; it was hard to talk to her Abecause she was really hysterical.@ Officer Huante called for the ambulance, and it was his opinion that the person who assaulted Jenkins had used his hands in a manner which was capable of causing serious bodily injury or death.
This evidence is both Alegally@ sufficient and Afactually@ sufficient to support the trial court=s finding that appellant used his hands as deadly weapons during the assault on his former girlfriend. Jackson v. Virginia, supra; Cardenas v. State, supra; Johnson v. State, supra; Cain v. State, supra; and Clewis v. State, supra; see also Turner v. State, supra; Brooks v. State, supra; and Clark v. State, supra. Issues Nos. 1 and 2 are overruled.
This Court=s Ruling
The judgment of the trial court is modified to show that there was no plea bargain and that appellant entered a plea of Anot true@ to the two enhancement paragraphs; as modified, the judgment of the trial court is affirmed.
BOB DICKENSON
SENIOR JUSTICE
February 28, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
McCall, J., and Dickenson, S.J.[2]
[1]We will discuss the evidence which supports the trial court=s finding that appellant=s hands and fists were used as deadly weapons during the assault.
[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.