No. 05-03-01192-CR
Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01897-PN. Affirm.
Before Justices BRIDGES, RICHTER, and LANG.
RICHTER, Justice.
In this appeal, Joseph Neal Beasley challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated assault with a deadly weapon. We affirm.
Background
Charles Walker was at a gas station about to purchase gas when he was approached by a teenager who asked for directions and then demanded his money. Walker ignored the teenager and began pumping gas. Moments later, he was "jumped on" by the teenager and another man. After being hit by the man about three times with what appeared to be a screwdriver, Walker lost consciousness. When he awoke, he was in a pool of blood with a "deep hole" in his right arm, a "big gash" across his forehead, and a swollen eye. Four teeth had also been "knocked-out" and a "coozy," folded in the shape of a wallet, was missing from his back pocket. Walker refused to be taken to the hospital but received treatment at the scene. He later identified Beasley and Beasley's teenage nephew, Jesse Davis, as the assailants. Beasley was subsequently charged with aggravated robbery. At trial, Walker recounted what had happened and denied saying anything to provoke Beasley or Davis. Walker's testimony was corroborated in large part by two witnesses, Phillip Grady, who was also at the gas station, and Wardell Brumfield, who was stopped at a nearby intersection. Neither Grady nor Brumfield saw Walker "do anything" to Beasley or Davis, although Grady did hear Beasley tell Walker "not to talk to [Davis] like that" immediately before Beasley hit Walker. Grady also testified he saw Walker retreat, but Beasley continued hitting Walker. Grady tried to get Beasley to stop, but Beasley threatened him, too, if he did not leave. Brumfield testified he saw both Beasley and Davis "beating up" Walker and also saw Davis kick Walker, throw something at Walker, and "pilfer through" Walker's pockets. Dallas police officer Charles Jackson testified he responded to the scene and found Walker bleeding and in a daze. He testified Walker did not know what type of object may have been used to hit him and no object was found at the scene. Jackson further testified that he believed that "more than a fist-fight had occurred" and that given the extent of Walker's injuries, whatever was used to hit Walker, whether a fist or an instrument, was, in the manner of its use, capable of causing serious bodily injury and/or death. Testifying in his own defense and as his sole witness, Beasley stated he and Davis were on their way home when they stopped for gas. Beasley got out of his car to pump gas and Davis walked towards Walker. Beasley saw Davis and Walker talking and then heard Walker yell racial slurs at Davis. Beasley approached Walker and told him to "calm down." According to Beasley, Walker reacted by "insulting him" and "spewing" gas all over him. At that point, Beasley began striking Walker with his fists and continued until he had "knocked Walker down" and was approached by Grady. Beasley threatened to strike at Grady also but then fled. Beasley denied robbing Walker or knowing that Davis intended to rob Walker, but admitted he was high on crack cocaine at the time and was extremely angry. Beasley also testified his hands were swollen from "punching Walker." The court's charge authorized the jury to convict Beasley, either as a principal or party, of aggravated robbery or any of the lesser included offenses of robbery, aggravated assault, or simple assault. The jury found Beasley guilty of aggravated assault as included in the indictment and the trial judge assessed punishment at twenty years confinement and a $2,500 fine. In accordance with the verdict, the judgment contains a finding that Beasley used or exhibited a deadly weapon, either his fists or an unknown object, during the commission of the assault. Discussion
In reviewing a challenge to the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt or the contrary evidence is so strong that the beyond-a-reasonable doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). In making these determinations, we bear in mind that the fact finder may draw reasonable inferences from the evidence before it and is the exclusive judge of the witnesses' credibility and the weight given to the testimony. Jones v. State, 944 S.W.2d 642, 647, 648 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). In accordance with the indictment and with section 22.02(a)(2) of the Texas Penal Code, the charge in this case authorized the jury to find Beasley guilty of aggravated assault if it found beyond a reasonable doubt that Beasley, acting alone or as a party, knowingly or intentionally caused bodily injury to Walker by striking him with a deadly weapon-his fists or an unknown object, either of which was, in the manner of its use or intended use, capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. §§ 1.07(a)(17)(B), 22.01(a), 22.02(a)(2) (Vernon Supp. 2004-05). In arguing the evidence is legally and factually insufficient to support the conviction, Beasley does not dispute he struck Walker. Instead, he specifically challenges the deadly weapon finding. Beasley maintains the incident was "just a fist-fight" and notes that "no item that could have been used as a deadly weapon during the altercation was ever produced into evidence or found at the scene." Beasley also notes that no evidence was presented showing Walker suffered a serious bodily injury, "protracted loss or impairment of body parts/organs, or a substantial risk of death or serious permanent disfigurement," and no medical evidence was introduced to substantiate Jackson's testimony that whatever was used to strike Walker was a deadly weapon. As such, Beasley maintains the evidence supports at most a conviction for assault and thus, his conviction for aggravated assault should be reversed. We disagree. Viewed under the appropriate standard, the record reflects Walker was beaten unconscious and suffered injuries to his arm, forehead, and face and mouth. Although Beasley argues the incident was no more than a fist-fight, the jury was free to believe the witnesses' testimony that Walker did nothing to provoke Beasley and even retreated and was also free to believe the witnesses' characterization of the incident as a "beating." See Jones, 944 S.W.2d at 647, 648. Moreover, although no evidence showed Walker suffered a protracted loss of impairment of body parts/organs or a substantial risk of death or serious permanent disfigurement, no such evidence was necessary. As the State points out, while it could have alleged serious bodily injury as the factor elevating the assault to an aggravated assault, see Tex. Pen. Code Ann. § 22.02(a)(1), it did not. Instead, it alleged the aggravating factor to be the use of a deadly weapon. See id. § 22.02(a)(2). Though the penal code requires a deadly weapon to be capable of causing death or serious bodily injury, the penal code does not require actual death or serious bodily injury. See id. § 1.07(a)(17)(B); Jefferson v. State, 974 S.W.2d 887, 892 (Tex.App.-Austin 1998, no pet.); Bui v. State, 964 S.W.2d 335, 342 (Tex.App.-Texarkana 1998, pet. ref'd). Based on Jackson's testimony that the extent of Walker's injuries supported the fact that whatever was used to hit Walker, whether a fist or an instrument, was in the manner of its use capable of causing serious bodily injury and thus a deadly weapon, the jury was free to conclude that in fact Beasley used a deadly weapon. See Vela v. State, No. 13-03-102-CR, 2004 WL 1795314, *8 (Tex.App.-Corpus Christi 2004, pet. granted) (officer's testimony that use of hands for choking constituted use of deadly weapon sufficient to support deadly weapon finding). This is so even though no medical testimony was introduced and even though the State never introduced into evidence any instrument that could have been used during the assault. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. [Panel Op.] 1982) (evidence sufficient to show instrument used as deadly weapon even though instrument not introduced into evidence); Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App. 1978) (lay testimony sufficient to show instrument used as deadly weapon); Bailey v. State, 46 S.W.3d 487, 489 (Tex.App.-Corpus Christi 2001, pet. ref'd) (jury may determine instrument used as deadly weapon based on lay witness testimony, even if instrument not introduced into evidence). That a witness may have testified that only Davis threw an object at Walker also is of no significance because the jury was authorized to convict Beasley as a party or principal and was also free to disregard that testimony in favor of Walker's testimony that it was Beasley who struck him with an object that appeared to be a screwdriver. See Jones, 944 S.W.2d at 647, 648. Given the evidence before us, we conclude that the jury could have found the essential elements of the crime beyond a reasonable doubt. We further conclude that the evidence of appellant's guilt is neither too weak to support the finding of guilt beyond a reasonable doubt nor outweighed by contrary evidence such that the beyond-a-reasonable-doubt standard could not have been met. Accordingly, we overrule Beasley's points of error. We affirm the trial court's judgment.