Leon Hemphill v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS LEON HEMPHILL, Appellant, v. THE STATE OF TEXAS, Appellee. ' ' ' ' ' No. 08-03-00054-CR Appeal from the 142nd District Court of Midland County, Texas (TC#CR27752) MEMORANDUM OPINION Leon Hemphill was convicted by a jury of aggravated assault by using a deadly weapon--namely, his foot, hand, knee, elbow, or an unknown object. The court sentenced him to eleven years= imprisonment. In his sole issue on appeal, Hemphill argues that the evidence is legally insufficient to establish that he used or exhibited his foot, hand, knee, elbow, or an unknown object as a deadly weapon. We affirm. Factual and Procedural Background It is undisputed that Hemphill assaulted his live-in girlfriend, Sophia Molloy, on Saturday, June 22, 2002, and that Molloy spent two and a half months at a battered women=s shelter shortly after the assault. Molloy made an oral statement to the police two days after the assault and a handwritten statement while she was at the battered women=s shelter. By the time of trial, Molloy and Hemphill had reconciled. During her trial testimony, Molloy recanted much of the information in her statements. Although the statements were not admitted into evidence, Molloy admitted that she said most of the things that were in the statements. The prosecutor also had Molloy read portions of the statements from the witness stand. Molloy testified that she went to buy a car on the morning in question. When she returned home to get the title to her old car, she and Hemphill argued. In her written statement, she said that Hemphill began beating her in the head with a rolled up newspaper. In her trial testimony, Molloy stated that he did not hit her with the newspaper. Instead, she testified that she punched Hemphill in the stomach. Her statement did not contain this information. Molloy testified that she retrieved the title, went back to the car dealership, returned home, and began getting ready for work. She was angry with Hemphill because she had just found out that he was Acheating@ on her. They starting yelling at each other, she started hitting him and pulling his hair, and Aout of self-defense@ Hemphill started hitting her back. None of this information was included in her statements. In one of her statements, she said: Once I got the title in my hands I ran out the door. And as I headed down the stairs, he followed me. He grabbed my neck, started squeezing as hard as he could. I couldn=t scream or breathe. I tried so hard to, but he was pushing so hard on my larynx that no air or sound came out. He drug me up the stairs by my head, the back of my feet hitting each stair. He finally let go and drug me by my wrist back into the house. Similarly, in another statement she said that Hemphill grabbed her by the neck with his hands and I was trying to scream, no sound was coming out because he had a choke hold on me. I could not make any sound, I couldn=t get any air. I mean, I thought I was going to die right there on the stairs. And he pulled me up the stairs like that, by my head. At trial, Molloy identified pictures that were taken the following Monday and that showed bruises on her chin, neck, legs, and arm. But she had a new explanation for how she got the bruises. She testified that Hemphill decided to move out and she fell down the stairs as she was helping him take his clothes to the car. While Molloy was kicking and screaming, Hemphill tried to pull her back up the stairs to see if she was alright. Molloy testified that she did not believe Hemphill meant to grab her by the neck. They eventually drove to Hemphill=s uncle=s apartment, arguing along the way. In her statements, Molloy said that Hemphill pulled a knife out and threatened to stab her so they would wreck and die. When they were inside the uncle=s apartment, Hemphill pointed a shotgun at her and threatened to kill her, and then forced her back into the car with the gun. At trial, Molloy claimed that none of the information regarding the knife and the gun was true. Molloy testified that they returned to their apartment, and the fight resumed when she pushed Hemphill. This information was not included in her statements. Hemphill then Akneed@ her, causing her to hit a wall. She identified a picture showing a three-inch bruise on her shoulder that resulted from her hitting the wall, as well as pictures of injuries to her vaginal area caused when Hemphill kneed her. She testified that the pain was A[o]ne of the worst pains@ she had ever felt and that there was Ablood everywhere.@ Molloy estimated that she lost one to two cups of blood. Blood was in the hall, where he hit her, and there was a trail of blood into the bathroom and more blood in the bathtub. Although it was painful to walk, Molloy got ready and went to work. A co-worker noticed her bruises and called the police, against Molloy=s wishes. At trial, she testified that she did not want to call the police because she had started the fight. She admitted that at the time of the incident she said that she was afraid for her life because Hemphill threatened to kill her, but she testified that he did not really threaten her and she was not really afraid. When Molloy went back to work the following Monday a co-worker told her that the police were on the way, and she thought Athis is my opportunity to get out of this relationship.@ Although the police report stated that Hemphill hit her several times with his fist and kicked her several times in the vagina, Molloy denied saying that to the officers. She testified that she only told them that he kneed her one time and hit her in the face one time. She admitted telling an official, AHe hit me with his hands, his hands are bad. I mean, they=re so powerful.@ On the officers= advice, she went to the hospital and then to the battered women=s shelter. On cross-examination, Molloy testified that her bruises and the wounds to her vaginal area had healed completely. Even before she was completely healed, she was able to Ause the restroom@ normally. She never lost the functioning of any part of her body, and she has no disfigurement. Molloy stated that when Hemphill kneed her she was hitting him and she was out of control. Molloy also testified that she is five-feet-two-inches tall and weighs about 105 pounds. Hemphill is about five-feet-eight-inches tall and weighs about 200 pounds. A victim=s advocate at the battered women=s shelter testified that Molloy exhibited the characteristics of an abused spouse. She also testified that a battered woman may recant a claim of abuse out of fear or love. Sergeant Clements with the Midland Police Department testified that he and Officer Grimaldo investigated this assault. Clements stated that when they interviewed Molloy, she had bruises over her face and knots over her forehead. She was trembling and seemed frightened. Grimaldo also testified that Molloy seemed a Alittle scared@ and had bruises on her face. Clements testified that hands, feet, and elbows can be used as deadly weapons. The prosecutor asked, A[I]f somebody strikes somebody with a hand or a knee or hits them or puts their hand around their neck, is that . . . hand or that knee or that elbow or that foot capable of causing serious bodily injury or death?@ Clements answered, AYes.@ The emergency room nurse who treated Molloy testified that Molloy told her that her boyfriend beat her up with his foot, hand, and knee. Molloy had moderate bruising on her chin, neck, and right ankle and a six-by-two-centimeter severe bruise on her right shoulder. She also had bruising and a severe, one-and-a-half-centimeter laceration in her vaginal area. Dr. Feierabend, the emergency room doctor who treated Molloy, testified that Molloy had bruising over Asubstantial areas@ of her body, including the arms, legs, and neck. Her most severe injury was in her vaginal area, where she had a large hematoma on one side and a large laceration on the other. The injuries to her external genital area were so severe that it would have been too painful for the doctor to do an internal pelvic exam. Dr. Feierabend stated that he had no reason to dispute Molloy=s testimony that she lost one to two cups of blood; that amount of blood loss was consistent with the injuries that he viewed. He testified that he was aware of situations in which a person died from being hit or kicked. He also testified that hands, feet, elbows, and knees can be deadly weapons. In particular, hands can be deadly when used for choking or to hit someone in the head. Hemphill was indicted for three counts of aggravated assault. The trial court directed a verdict in his favor on the second and third counts, which alleged that he used and exhibited a firearm and a knife, respectively, as deadly weapons. The court submitted the case to the jury on both paragraphs of the first count of the indictment. The first paragraph alleged that he committed aggravated assault by using his foot, hand, knee, elbow, and an unknown object as deadly weapons. The second paragraph alleged that he committed aggravated assault by causing serious bodily injury. The jury found Hemphill guilty under the first paragraph, thus finding that he used his foot, hand, knee, elbow, or an unknown object as a deadly weapon. The jury found Hemphill not guilty under the second paragraph, thus finding that he did not cause serious bodily injury. Standard and Scope of Review To evaluate the legal sufficiency of the evidence, we view all the record evidence and reasonable inferences therefrom in the light most favorable to the prosecution to determine whether a rational jury could have made the challenged finding beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Teer v. State, 923 S.W.2d 11, 17 (Tex. Crim. App. 1996). The jury is entitled to resolve any conflicts in the evidence, to evaluate the credibility of witnesses, and to determine the weight of particular evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The jury is also entitled to believe or disbelieve a witness in whole or in part. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). In conducting our review, we consider all of the evidence that was admitted at trial, including evidence that should have been excluded. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); Arzaga v. State, 86 S.W.3d 767, 777 (Tex. App.--El Paso 2002, no pet.). Moreover, evidence that is admitted without objection and without any limiting instruction may be used and considered by the jury for all purposes. Hammock v. State, 46 S.W.3d 889, 892 (Tex. Crim. App. 2001); see also Tex. R. Evid. 802 (AInadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.@). Deadly Weapon A person may commit simple assault by intentionally, knowingly, or recklessly causing bodily injury to another. See Tex. Pen. Code Ann. ' 22.01(a)(1) (Vernon Supp. 2004). A person may commit aggravated assault by committing assault and using or exhibiting a deadly weapon during the commission of the assault. See id. ' 22.02(a)(2). Hemphill admits that he committed simple assault by causing bodily injury to Molloy. Therefore, the only issue in this appeal is whether the evidence was legally sufficient for the jury to find beyond a reasonable doubt that Hemphill=s hands, feet, elbows, or knees were deadly weapons. ADeadly weapon@ is defined to include Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Id. ' 1.07(a)(17)(B). ASerious bodily injury@ is Abodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@ Id. ' 1.07(a)(46). Body parts, such as hands and knees, may be deadly weapons based on their manner of use or intended use and their capacity to produce death or serious bodily injury. See Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983); Gillum v. State, 888 S.W.2d 281, 288 (Tex. App.--El Paso 1994, pet. ref=d). To determine whether something is a deadly weapon, the jury may consider all the surrounding facts, including the defendant=s words and whether the victim feared death or serious bodily injury. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983); Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978); Hernandez v. State, 649 S.W.2d 720, 722 (Tex. App.--Amarillo 1983, no pet.). When hands are alleged to be deadly weapons, the jury may consider the relative size of the parties, the size and condition of the hands, and the manner in which the hands were used. See Turner, 664 S.W.2d at 90 n.5; Brooks v. State, 900 S.W.2d 468, 472 (Tex. App.--Texarkana 1995, no pet.). The jury may also consider the wounds inflicted on the victim. See Turner, 664 S.W.2d at 89. It is not necessary, however, for the State to prove that the victim actually sustained serious bodily injuries. Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.--Austin 1998, no pet.); Brooks, 900 S.W.2d at 472; Clark v. State, 886 S.W.2d 844, 845 (Tex. App.--Eastland 1994, no pet.). The State must only prove that the hands were capable of causing serious bodily injury in the way they were used or intended to be used. Hill v. State, 913 S.W.2d 581, 584 (Tex. Crim. App. 1996); Jefferson, 974 S.W.2d at 892; Gillum, 888 S.W.2d at 288. In this case, Dr. Feierabend and Sergeant Clements testified that hands are capable of causing serious bodily injury. They specifically indicated that hands become deadly weapons when they are used to choke another person. In her statements to the police, Molloy said that Hemphill put her in a choke hold and squeezed her neck so hard that she could not scream or breathe and she thought she was going to die. She also described Hemphill=s hands as Abad@ and Apowerful.@ Molloy testified at trial that she is five-feet-two-inches tall and weighs about 105 pounds, whereas Hemphill is about five-feet-eight-inches tall and weighs about 200 pounds. Molloy told the officers that Hemphill threatened to kill her. A photograph depicting a bruise on Molloy=s neck was admitted into evidence. Moreover, Molloy incurred severe injuries when Hemphill kneed her vaginal area during the same incident. From all this evidence, the jury could have rationally concluded that Hemphill=s hands, in the manner they were used or intended to be used in this incident, were capable of causing serious bodily injury. See Lane v. State, 111 S.W.3d 203, 205-07, 209-10 (Tex. App.--Eastland 2003, pet. granted) (holding evidence was legally sufficient to prove defendant=s hands and feet were deadly weapons where wife stated defendant hit her in the head with his fist and kicked her in the back and chest with his foot and where medical and police personnel testified that hands and feet could be used as deadly weapons against the head, back, or chest, although wife recanted at trial and did not suffer serious bodily injuries). Hemphill points out that Molloy=s only sworn testimony was her trial testimony and in that testimony she recanted much of what she said in her prior statements. She testified that Hemphill only hit her once in the face and kneed her once in the vaginal area. Furthermore, her testimony indicates that Hemphill was only reacting to her aggression against him when he hit and kneed her. Hemphill argues that the State was therefore required to prove that his use of his hand to hit Molloy=s face in self-defense or his use of his knee to strike her vaginal area while she was attacking him amounted to the use of a deadly weapon. He further argues that although Dr. Feierabend and Sergeant Clements testified generally that hands and knees may be deadly weapons, their testimony does not indicate that hands and knees are deadly weapons when used in the particular way that they were used in this case, i.e., when a hand hits a face once or a knee strikes a woman=s vaginal area once. Hemphill=s argument assumes that the jury was required to base its verdict on the version of events that Molloy presented at trial and that the jury could not consider any of the information in Molloy=s prior statements. However, because the information from the prior statements was admitted at trial with no limiting instruction, the jury was free to believe the version of events in the prior statements instead of Molloy=s trial testimony. See Hammock, 46 S.W.3d at 892; Sharp, 707 S.W.2d at 614. Moreover, both Dr. Feierabend and Sergeant Clements indicated that hands may be deadly weapons when used to choke someone, and Molloy said in her statements that Hemphill used his hands to choke her. Thus, there is evidence that hands may be deadly weapons when used in the particular manner that they were used in this case. Hemphill also argues that Molloy=s injuries were insufficient to establish that he used a deadly weapon. He relies on Danzig v. State, 546 S.W.2d 299 (Tex. Crim. App. 1977), overruled by Denham v. State, 574 S.W.2d 129 (Tex. Crim. App. 1978). In Danzig, the defendant was charged with committing aggravated assault by using a knife as a deadly weapon. She allegedly stabbed the victim in the arm and over the nose with a small penknife that had a three- or four-inch blade. Danzig, 546 S.W.2d at 299-300. The court decided that the wounds inflicted on the victim are factors to be considered in determining whether a weapon is deadly. Id. at 301. The court then held that the evidence was insufficient to establish that the knife was a deadly weapon because Athe wounds, although [n]ear vital areas, were not shown, by expert testimony or otherwise, to have been likely to result in death or serious bodily injury.@ Id. at 302. The court further stated that deadliness cannot be inferred solely from superficial wounds; instead, the State must present some evidence, usually through expert testimony, that the weapon was used or intended to be used in a way that was capable of causing death or serious bodily injury. Id. The court overruled Danzig in Denham v. State. As in Danzig, the defendant in Denham was charged with aggravated assault by using a knife as a deadly weapon. She stabbed the victim in the shoulder with a butcher knife that had a seven- or eight-inch blade. Denham, 574 S.W.2d at 130-31. The defendant then informed the victim that he was A>next on [her] list.=@ Id. at 130. The victim testified that he feared for his life. Id. The court held that this evidence was sufficient to establish that the knife was a deadly weapon. Id. at 131-32. The court expressly overruled Danzig insofar as it required expert testimony to establish that a weapon is deadly. Id. at 131. The court also stated that although the wounds inflicted on the victim are factors to be considered in determining deadliness, it is not necessary that wounds be inflicted for a knife to be a deadly weapon. Id. at 130. Hemphill acknowledges that Denham overruled Danzig=s requirement of expert testimony, yet he suggests that Danzig still requires the victim to suffer death or serious bodily injury before a weapon may be declared deadly. We disagree. Denham clearly states that a knife may be a deadly weapon even if no wounds are inflicted. And, as noted above, other appellate courts have held that hands may be deadly weapons even if the victim did not sustain serious bodily injuries. See Jefferson, 974 S.W.2d at 892; Brooks, 900 S.W.2d at 472; Clark, 886 S.W.2d at 845; see also Sweeten v. State, 686 S.W.2d 680, 684-85 (Tex. App.--Corpus Christi 1985, no pet.) (stating that Danzig is questionable authority for the proposition that a knife is not a deadly weapon even if it was used to inflict serious wounds). Considering all the evidence, we conclude that the evidence is legally sufficient to establish that Hemphill=s hands were deadly weapons, despite the fact that Molloy did not actually sustain serious bodily injury. Conclusion For the reasons stated herein, we overrule Hemphill=s sole issue and affirm the judgment of the trial court. SUSAN LARSEN, Justice April 1, 2004 Before Panel No. 3 Barajas, C.J., Larsen, and Chew, JJ. (Do Not Publish)