Stacy Townsend v. State

NO NO. 12-05-00090-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS STACY TOWNSEND, § APPEAL FROM THE 7TH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION A jury convicted Appellant Stacy Townsend of aggravated assault of his wife, Tina, made a specific finding of a deadly weapon, and sentenced him to imprisonment for twenty years and a $10,000 fine. In three issues, Appellant challenges the sufficiency of the evidence to support his conviction. We affirm. Background Appellant was charged by indictment with aggravated assault of his wife. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2005). At trial, despite the State’s best efforts, Appellant’s wife, the victim, could not be located. Initially, the testimony presented by the State’s witnesses included statements made by Appellant’s wife to various emergency medical service and emergency room personnel. The testimony established that Appellant beat and threatened to beat his wife over a period of several hours. Her son came home and took her to another location. Subsequently, she was transported by ambulance to the hospital where she was treated for numerous bruises, lacerations, and contusions. The testimony also established that the victim reported Appellant had choked her, kicked her, hit her, thrown various items at her, and beat her with an extension cord. She reported losing consciousness several times. The witnesses also testified that the victim had severe lacerations, bruises, and abrasions over much of her body. Treatment of lacerations on her face and elsewhere required stitches. The treating physician testified the stitches and lacerations would leave permanent scarring. The doctor also testified that there was a danger of renal failure, due to the extensive bruising, if the injuries had been left untreated. Witnesses also testified that Appellant’s wife told the medical personnel that Appellant had beat her with and had used or exhibited various items that witnesses testified, in the manner of Appellant’s use, were capable of causing death or serious bodily injury. These items included his hand, his feet, an extension cord, a chair, a vase, a weight bench, and a belt. The victim’s mother testified that she saw her daughter soon after the attack and that her daughter was “just bloody” and “her body was just tore up.” She also testified that, while talking with the police at the hospital, Appellant called her and said he was sorry for what he did to the victim. The victim’s mother also recovered from the victim’s home, and delivered to the police, a yellow extension cord that had blood on it, which was later identified as the victim’s blood. The victim’s son testified that his mother said she and Appellant had been arguing and Appellant had caused her injuries. He also testified that Appellant had apologized to him for injuring his mother. The victim’s daughter testified that, on the day of the beating, Appellant called her at work and said that her mother had been having physical relations with another man. Later that day, she went to where her mother had been transported, and her mother “had gashes all over her body” from being “beat up.” She testified she immediately called 9-1-1 and the police. She later called Appellant and asked why he had “jumped on” her mother, and he had said it was because “she was cheating on him.” An investigating officer from the sheriff’s department testified about meeting with the victim two days after the attack and observing numerous lacerations on her arms, torso, and legs, very large bruises over most of her body, and open flesh wounds. The officer testified that hands and feet could be deadly weapons. After the State rested, the victim, who had been the subject of an attachment order because she had failed to attend any hearings after being subpoenaed, surrendered, came to court, and testified. The victim testified Appellant beat her for twelve to thirteen hours with his hand, his feet, and an extension cord, shot at her once, and threw a vase and an “Ab Cruncher” exercise machine at her. The jury convicted Appellant and made a specific finding that a deadly weapon was used. After hearing punishment evidence, the jury sentenced Appellant to imprisonment for twenty years and a $10,000 fine. This appeal followed. Effect of Multiple Count Indictment The indictment included three paragraphs1 in which the State alleged Appellant committed an aggravated assault against his wife in three manners. First, the State alleged that he committed aggravated assault by “intentionally, knowingly, or recklessly caus[ing] serious bodily injury [to his wife] by striking her with his hand and feet and an extension cord and a chair and a vase and a belt.” Next, the State alleged that he committed aggravated assault by “intentionally, knowingly, or recklessly caus[ing] bodily injury [to his wife] by striking her with his hand and feet and an extension cord and a chair and a vase and a belt, and the defendant did then and there use or exhibit a deadly weapon, to-wit: his hand and feet and an extension cord and a chair and a vase and a belt, during the commission of said assault.” Finally, the State alleged that he committed aggravated assault by “intentionally or knowingly threaten[ing his wife] with imminent bodily injury and did then and there use or exhibit a deadly weapon, to-wit: his hand and feet and an extension cord and a chair and a vase and a belt, during the commission of said assault.” The last paragraph of the indictment alleged that in each of the offenses charged, Appellant “did use and exhibit a deadly weapon, to-wit: his hand and feet and an extension cord and a chair and a vase and a belt, that in the manner of its use and intended use was capable of causing death and serious bodily injury[.]” The court of criminal appeals has held that a general verdict is valid so long as it is legally supportable on one of the submitted grounds. Gonzalez v. State, 8 S.W.3d 640, 641 (Tex. Crim. App. 2000). Where the Texas Penal Code lists distinct ways to commit a single offense, alternative pleading of differing methods of committing one offense may be included in one indictment. Hernandez v. State, 190 S.W.3d 856, 863 (Tex. App.–Corpus Christi 2006, no pet.). The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Id. A trial court may submit a disjunctive jury charge and obtain a general verdict where the alternative theories involve the commission of the same offense. Gonzales, 191 S.W.3d at 747. Sufficiency of the Evidence Appellant’s three issues focus on the sufficiency of the evidence to support Appellant’s conviction in each of the three manners alleged in the indictment. Appellant does not specify whether he intends to attack the legal or the factual sufficiency of the evidence, and the case he cites, Torres v. State, 905 S.W.2d 440, 441-42 (Tex. App.–Fort Worth, 1995, no pet.), discusses only legal sufficiency. In the interest of justice, we will consider both legal and factual sufficiency of the evidence. Standard of Review Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 221, 2217-18, 72 L. Ed. 2d 652 (1982). The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” See id. In reviewing factual sufficiency, we consider all the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis v. State, 922 S.W.3d 126, 133 (Tex. Crim. App. 1996), our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of the witness testimony. See Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, S.W.3d 1, 11 (Tex. Crim. App. 2000).2 A verdict will be set aside “only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.” Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002); see Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003). A clearly wrong and manifestly unjust verdict occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Zuniga, 144 S.W.3d at 481. As the court of criminal appeals explained in Zuniga, “There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in its finding of guilt beyond a reasonable doubt?” Id. at 484. Sufficiency of Evidence of Bodily Injury and Use or Exhibition of Deadly Weapon In his second issue, Appellant contends the evidence was insufficient to support his conviction for causing bodily injury and using or exhibiting a deadly weapon during the commission of the assault. A person commits the offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.” Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2005). A person commits the offense of aggravated assault if he commits assault as defined in penal code section 22.01 and “(1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.” Id. § 22.02(a)(1), (2). The Texas Penal Code defines bodily injury as “physical pain, illness, or any impairment of physical condition.” Id. § 1.07(8). “Serious bodily injury” is “bodily 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(46). The definition of deadly weapon includes “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury” as well as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(17)(A), (B). A firearm is a deadly weapon per se. Id. § 1.07(17)(A). Although a hand is not a deadly weapon per se, Texas courts have held that 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); Hemphill v. State, No. 08-03-00054-CR, 2004 Tex. App. LEXIS 3028, at *11 (Tex. App.–El Paso Apr. 1, 2004, pet. ref’d) (not designated for publication). 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. Hemphill, 2004 Tex. App. LEXIS, at *11. The State does not have to prove that the complainant actually sustained serious bodily injuries. Id., at *11-12. 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. Id. Evidence that hands were used to choke or strangle someone is sufficient to support a finding that the hands were deadly weapons. See Wesber v. State, No. 11-03-00038-CR, 2004 Tex. App. LEXIS 3376, at *7 (Tex. App.–Eastland 2004, pet. ref’d) (not designated for publication); Judd v. State, 923 S.W.2d 135, 140 (Tex. App.–Fort Worth 1996, pet. ref’d). Also, a foot can be found to be a deadly weapon if, in the manner of its use or intended use, it is capable of causing death or serious bodily injury. Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The emergency room doctor testified that the victim had numerous bruises, contusions, and cuts all over her body, some so severe as to require stitches. Various other witnesses testified about the numerous physical injuries and about the victim’s comments that she was in severe physical pain. The victim testified that Appellant shot in her direction and hit the wall beside her. Officers testified about removing the bullet from the wall, smeared with her blood, where she was leaning when Appellant shot at her. Further, there was testimony that Appellant choked the victim into unconsciousness using his hands and that he beat the victim for hours using an extension cord. His hands and the extension cord were described as being capable of causing death or serious bodily injury in the manner of their use. Appellant also hit the victim with a chair, a vase, a belt buckle, and a belt. There was other evidence that Appellant threw objects at the victim, such as a weight bench and an “Ab Cruncher” machine. Such objects could, in the manner of their use, also cause serious bodily injury or death. The victim testified that she bled from her many wounds, she lost consciousness several times, she had bruises and lacerations all over her body, and she vomited during the beating. The victim testified she did not think she would survive the beating. She testified that, after twelve to thirteen hours of being beaten, she was so weakened that she was unable to leave the house to escape. The victim testified that when she told Appellant he was going to kill her by beating her so much, Appellant responded “I’m not going to kill you. I’m just going to make you feel like you’re damn near dead.” The victim testified that, as a result of the beating, she had severe, constant pain all over her body. She testified the pain was such that she could not describe it and that it was the worst pain she had experienced in her life. The testimony also showed that Appellant telephoned several people after the beating, who testified that he apologized and was sorry for beating his wife. The jury heard the evidence and found Appellant guilty of aggravated assault as charged in the indictment. Further, the jury made a specific finding that a deadly weapon was used. Viewing the evidence in the light most favorable to the jury’s verdict, we hold that, based upon the plethora of evidence outlined above, the evidence is legally sufficient to support the jury’s verdict that Appellant caused bodily injury to his wife and used or exhibited a deadly weapon during the incident. In reviewing the factual sufficiency of the evidence, we look at the evidence both in support of the jury’s verdict and contrary to the jury’s verdict. Based upon our review of the record, however, we are unable to conclude that any contrary evidence was presented. Therefore, after reviewing the entire record in a neutral light, we hold the evidence is factually sufficient to support the jury’s verdict. Having found the evidence both legally and factually sufficient to support Appellant’s conviction of aggravated assault based on a finding of bodily injury and the use or exhibition of a deadly weapon, we overrule Appellant’s second issue. Conclusion Having held the evidence is legally and factually sufficient to support Appellant’s conviction of aggravated assault by causing bodily injury to his wife and using or exhibiting a deadly weapon during the commission of the offense, we affirm the judgment of the trial court. Having found sufficient evidence to support Appellant’s conviction on one of the paragraphs of the indictment, we do not address his other two issues. See Hernandez, 190 S.W.3d at 863 (conviction will be upheld when evidence is sufficient to support finding of guilt under any one of theories submitted); see also Tex. R. App. P. 47.1. SAM GRIFFITH Justice Opinion delivered July 31, 2006. Panel consisted of Worthen, C.J. and Griffith, J. (DO NOT PUBLISH) 1 “The term ‘count’ is used to charge a separate offense; a paragraph is a portion of a count and charges a method of committing an offense.” Gonzales v. State, 191 S.W.3d 741, 747 n.2 (Tex. App.–Waco, 2006, no pet.); see also Tex. Code Crim. Proc. Ann. art. 21.24 (Vernon 1989). 2 However, “contrary evidence does not have to outweigh evidence of guilt; it has to be only enough to provide reasonable doubt.” Zuniga v. State, 144 S.W.3d 477, 483 (Tex. Crim. App. 2004).