Jarmon, Larry Darnell v. State

Affirmed and Memorandum Opinion filed November 29, 2005 Affirmed and Memorandum Opinion filed November 29, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00801-CR ____________ LARRY DARNELL JARMON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 02CR2559 M E M O R A N D U M   O P I N I O N Appellant Larry Darnell Jarmon was convicted of aggravated assault with a deadly weapon and sentenced to four years= confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, appellant contends the evidence is legally and factually insufficient to support the jury=s finding that he used or exhibited a deadly weapon when he hit the complainant on the head and back with a hammer. We affirm. Factual Background In July of 2002, appellant was living with his sister, Gloria Abrams, and her common-law husband, Arthur Ramirez, in their apartment in Texas City. On July 13, 2002, appellant got into a heated argument with Abrams and Ramirez while at the apartment. When Abrams asked appellant to leave, he refused. Abrams threatened to call the police, and as she moved toward a phone, appellant picked up a hammer and followed her. Appellant told Abrams, AYou=re not calling anybody@ and threatened to kill Abrams and Ramirez. Appellant then pushed Abrams down and hit her in the head with the claw end of the hammer. He hit her a second time on her back. When Ramirez tried to shield Abrams from appellant, appellant hit Ramirez with the hammer several times. At some point, appellant also stuck his finger in Ramirez=s eye. When appellant stopped hitting them, he dropped the hammer and left. Abrams and Ramirez then left the apartment together and called police from a pay phone at a convenience store. Blood from Abrams= injuries drenched her t-shirt; she also had trouble seeing because of the blood in her eyes. Officer Terrell Rhone, the patrol officer who was dispatched to the convenience store, testified that when he arrived, he saw Abrams and Ramirez both bleeding from their faces. Ramirez=s eye was swollen shut and was bleeding, and Abrams had wounds to her head and a puncture wound to her back.[1] Abrams, who was pregnant, was taken by ambulance to the UTMB trauma unit, where she remained for about six hours until the pain she was feeling stopped. She did not receive any stitches, but has a scar on her back from the injury. Medical records described her head injury as a laceration, and her back injury as an abrasion and contusion. Appellant was charged by indictment with aggravated assault with a deadly weapon. Appellant pleaded not guilty, and in June 2004, he was tried before a jury. The jury returned a guilty verdict on the offense of aggravated assault. At appellant=s election, the trial court assessed appellant=s punishment at four years= confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court entered its judgment and sentence on August 5, 2004. This appeal followed. Analysis of Appellant=s Issues In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove beyond a reasonable doubt that the hammer, as it was used or exhibited, was capable of causing serous bodily injury. We examine these contentions below. A. Standards of Review To determine the legal sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the verdict and ask if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In conducting this review, we do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d.). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Id. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met. Id. at 484B85. In conducting the factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We will not set aside the judgment unless the evidence supporting the verdict is so weak as to be clearly wrong and manifestly unjust. Zuniga, 144 S.W.3d at 481. B. Application of Standards to Law and Facts A person commits the felony offense of aggravated assault if he commits assault and (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code ' 22.02(a). A deadly weapon includes Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Tex. Pen. Code ' 1.07(a)(17)(B). ASerious bodily injury@ is defined as 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.@ Tex. Pen. Code ' 1.07(46). Appellant points out that Abrams testified that she came home from the hospital the same day she entered it, and there was no testimony that the wounds she actually received were life-threatening or otherwise satisfied the definition of serious bodily injury. In the absence of such evidence, appellant contends, the evidence is legally and factually insufficient to show that the hammer, as it was used or exhibited, was capable of causing such harm. See Batro v. State, 635 S.W.2d 156, 158 (Tex. App.CHouston [1st Dist.] 1982, no pet.) (holding that because knife was not a deadly weapon per se, the State was required to prove that the particular knife involved was capable of inflicting deadly wounds). We examine this contention below. Like a knife, a hammer is not a deadly weapon per se. However, depending on the circumstances, a jury may determine it to be a deadly weapon under the statute. See Bethel v. State, 842 S.W.2d 804, 807B08 (Tex. App.CHouston [1st Dist.] 1992, no pet.) (concluding that hammer was used as a deadly weapon). A deadly weapon can be anything that in the manner of its use is capable of causing death or serious bodily injury. Bui v. State, 964 S.W.2d 335, 342B43 (Tex. App.CTexarkana 1998, pet. ref=d.) (finding a Duraflame log was a deadly weapon). In McCain v. State, the Court of Criminal Appeals explained that the plain language of the Texas Penal Code does not require that the actor actually intends death or serious bodily injury, only that the actor intends to use the object in a manner that renders it capable of causing death or serious bodily injury. 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). A jury may consider the manner of a weapon=s use, its size and shape, and its capacity to produce death or serious bodily injury. See Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978). A jury may also consider the words spoken by the accused. Bethel, 842 S.W.2d at 807; Batro, 635 S.W.2d at 158. Although the wounds inflicted on the injured party are another factor the jury may consider, wounds are not required to make a weapon deadly. Denham, 574 S.W.2d at 130. It is sufficient if the weapon is capable of causing death or serious bodily injury or is displayed in a manner conveying an express or implied threat that serious bodily injury or death will result if the aggressor is not satisfied. Jackson v. State, 668 S.W.2d 723, 725 (Tex. App.CHouston [14th Dist.] 1983, pet. ref=d.). At trial, Officer Rhone testified that a hammer could be a deadly weapon, depending on how it is used. The hammer appellant allegedly used in the assault was placed in evidence for the jury to examine. Both Abrams and Ramirez testified that appellant hit Abrams on the head and back with the hammer. Abrams testified that the blows from the hammer caused her pain and inflicted injuries requiring medical attention. She also testified that, when she threatened to call the police, appellant came towards her with the hammer and said, AYou=re not calling anybody,@ which the jury could interpret as an implicit threat to prevent her from calling the police by incapacitating her with the hammer. Abrams also testified that appellant was angry and intentionally hit her with the hammer. Ramirez testified that, as appellant held the hammer, he threatened to kill them. This evidence is legally sufficient to show that the hammer, in the manner of its use or intended use, was capable of causing death or serious bodily injury. Therefore, we overrule appellant=s first issue. In appellant=s factual sufficiency challenge, he does not point to any evidence beyond that referenced in his first issue; that is, the evidence that Abrams= hospital stay was short and the lack of any testimony that Abrams actually suffered serious bodily injury. However, as the case law makes clear, to prove that the hammer was a deadly weapon, the State is not required to show that appellant actually caused serious bodily injury or death. The gravamen of the finding is that the hammer was capable of causing serious bodily injury or death in the way it was used or intended to be used. See Bethel, 842 S.W.2d at 806 (finding hammer a deadly weapon when used to inflict head wound two to three centimeters long and requiring overnight hospital stay); Jackson, 668 S.W.2d at 725 (stating weapon displayed in a manner conveying an express or implied threat of serious bodily injury or death may be sufficient to support deadly weapon finding). The jury had numerous factors available to consider: the size and shape of the hammer, appellant=s use of the claw end of the hammer to hit his sister on the head and back, appellant=s intentional use of the hammer in anger during an argument, appellant=s implied threat to stop Abrams from calling the police, appellant=s explicit threat to kill Abrams and Ramirez, and the painful wounds inflicted. Moreover, appellant did not testify during the guilt-innocence stage of the trial, so the testimony of Abrams and Ramirez concerning appellant=s assault was uncontroverted. On this record, we find that the jury was rationally justified in finding appellant guilty of the offence of aggravated assault with a deadly weapon beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. Appellant=s second issue is overruled. Conclusion Appellant=s issues are overruled and the trial court=s judgment is affirmed. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed November 29, 2005. Panel consists of Justices Fowler, Edelman, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Officer Rhone also testified the wound to the back could have been a cut.