Alvin Ray Cooper v. Amy Hernandez

NO. 07-09-0346-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C NOVEMBER 6, 2009 ______________________________ ALVIN RAY COOPER,                                                                                                  Appellant V. AMY HERNANDEZ,                                                                                                  Appellee _______________________________ FROM THE COUNTY COURT OF FLOYD COUNTY; NO. 1698; HON. PENNY GOLIGHTLY, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.           Appellant, Alvin Ray Cooper, filed a notice of appeal on October 23, 2009. However, appellant did not pay the $175 filing fee required from appellants under Texas Rule of Appellate Procedure 5. Nor did he file an affidavit of indigence per Texas Rule of Appellate Procedure 20.1. By letter from this Court dated October 23, 2009, we informed appellant that “the filing fee in the amount of $175.00 has not been paid . . . . Failure to pay the filing fee within ten (10) days from the date of this notice may result in a dismissal.” Tex. R. App. P. 42.3(c); see Holt v. F. F. Enterprises, 990 S.W.2d 756 (Tex. App.–Amarillo 1998, pet. ref’d). The deadline lapsed, and the fee was not received.           Because appellant has failed to pay the requisite filing fee as directed by the court, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(c).                                                                            Per Curiam         t. While there was no direct testimony that appellant released Marisa because of the arrival of her cousin, Marisa testified appellant was choking her just prior to her cousin's arrival and the jury could have inferred that was the reason he did so. Moreover, even though appellant used only one hand to choke her, she believed he was trying to kill her. This evidence is sufficient to allow a rational trier of fact to find the element of intent beyond a reasonable doubt. And, though appellant asserts that he never threatened to kill Marisa, the violent nature of his acts, the accusations he leveled against her, his violent state of mind during the attack, and the physical assaults not only indicate otherwise but also provide ample foundation allowing the factfinder to reasonably infer that appellant intended to kill Marisa. Lastly, the finding is neither manifestly unjust nor does it undermine our confidence in the outcome. Deadly Weapon Next, appellant attacks the deadly weapon finding of the jury. When a person is charged with using a deadly weapon, the evidence must establish that the instrument used was actually deadly. Lockett v. State, 874 S.W.2d 810, 814 (Tex. App.-Dallas 1994, pet. ref'd). The Penal Code defines a "deadly weapon" as "anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner of its use or intended use is capable of causing death or serious bodily injury . . . ." Tex. Pen. Code Ann. §1.07(a)(17)(A) & (B) (Vernon Supp. 2005). And, while appellant's fists or hands, as charged here, are not deadly weapons per se, they may be shown to be so via evidence of their manner of use or intended use and capacity to produce death or serious injury. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983); Gillum v. State, 888 S.W.2d 281, 288 (Tex. App.-El Paso 1994, pet. ref'd). Additionally, evidence of the physical proximity between the victim and the object and threats or words used by the assailant are subject to consideration. Nash v. State, 175 S.W.3d 427, 430 (Tex. App.-Texarkana 2005, pet. ref'd); Bailey v. State, 46 S.W.3d 487, 491 (Tex. App.-Corpus Christi 2001, pet. ref'd). Finally, while expert testimony regarding the deadly nature of the object may be offered, it is not required. English v. State, 647 S.W.2d 667, 668-69 (Tex. Crim. App. 1983). There was evidence that appellant struck Marisa multiple times and attempted to choke her. This along with her testimony that she could not breathe and felt he was trying to kill her, the choking, the situs of the blows to her head, and photographs of the contusions, bumps, scratches, and other injuries she suffered were both legally and factually sufficient to allow the jury to find that appellant's hands and fists were deadly weapons. See Petruccelli v. State, 174 S.W.3d 761, 770 (Tex. App.-Waco 2005, pet. ref'd) (stating the evidence was factually sufficient to support a finding that the defendant's hands were deadly weapons when the defendant admitted he hit the victim and there was testimony that her injuries were consistent with being beaten multiple times with someone's hands). Appellant's issues are overruled, and we affirm the trial court's judgment. Per Curiam Do not publish.