Affirmed and Memorandum Opinion filed February 24, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00370-CR
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CHRISTOPHER DAVID CHILDERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 942,345
M E M O R A N D U M O P I N I O N
Appellant Christopher David Childers appeals his conviction for the felony offense of aggravated assault. After entering a plea of not guilty, appellant=s case was tried before a jury, which found him guilty of the crime above and assessed punishment at sixteen years= confinement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm.
In his sole issue on appeal, appellant argues that the evidence is factually insufficient to sustain his conviction. We apply the usual standard of review for factual sufficiency. See King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). The judgment of the trial court will be sustained if it is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).
A person commits the offense of aggravated assault if the person commits assault and either causes Aserious bodily injury@ to another, or uses or exhibits a Adeadly weapon@ during the commission of the assault. See Tex. Pen. Code Ann. ' 22.02(a) (Vernon 1994). Appellant does not contest the finding that he committed assault; thus, the only issue before this court is whether he either caused serious bodily injury to another, or used or exhibited a deadly weapon[1] during the assault.
It is well settled that a person=s hands can become deadly weapons under section 22.02(a) depending upon the manner of their use. See, e.g., Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983). It has further been established that when one uses his hand to choke another person, the hand constitutes a deadly weapon under the statute. See Judd v. State, 923 S.W.2d 135, 140 (Tex. App.CFort Worth 1996, pet. ref=d). The victim in this case testified that appellant put his hands around her neck and choked her during the commission of the assault. In fact, appellant even admits in his brief before this court that he choked her during the struggle. At trial, the victim identified through photographic evidence the resulting bruises and red marks she sustained on her neck. Further, Deputy R. McElvany of the Harris County Sheriff=s Office testified that he noticed some redness on the victim=s neck when he visited her at the hospital.
Against this evidence, the record reflects that Deputy Tim Mordecai testified that he did not see, based on the photographs, Aa whole lot@ of redness and bruising on the victim=s neck. Dr. Carlton Perry, who examined the victim, also testified that he probably would have expected to see more redness and bruising than what appeared in the photographs.
Based on this evidence, we cannot say that the proof of guilt here is either so obviously weak as to undermine confidence in the jury=s verdict or greatly outweighed by contrary proof. We find that the evidence presented is factually sufficient to support appellant=s use of a deadly weapon during the assault, and therefore, his conviction for aggravated assault as well. Accordingly, appellant=s sole issue is overruled.
The judgment is affirmed.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed February 24, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant contends that because the victim did not suffer serious bodily injury, the evidence was insufficient to support his conviction. However, a Adeadly weapon@ finding requires only that the instrument used be capable of causing death or serious bodily injury. Tex. Pen. Code Ann. ' 1.07(a)(17) (Vernon 1994).