No. 05-04-00218-CR
Opinion issued January 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-21465-NP. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MAZZANT, Justice.
Royce Daryl Degrate appeals his conviction for aggravated assault of a public servant with a deadly weapon, appellant's mouth, enhanced by one prior felony offense. A jury found appellant guilty, found the enhancement allegation true, and assessed appellant's punishment at twenty-five years' imprisonment. In two points of error, appellant contends the jury should have found him guilty of the lesser included offense of assault because the evidence was legally and factually insufficient to support the jury's finding that appellant's mouth was a deadly weapon. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On November 17, 2002, appellant was taken to the Dallas County jail. Debra Beneke, the intake nurse, interviewed appellant, and he told her he had been diagnosed with HIV in 1987 and was taking medication for that condition and for depression. Appellant was placed in a pod in the jail consisting of three eight-man cells opening onto a shared day room. At 3:00 a.m. on November 19, 2002, Detention Service Officers Eric Coulston and Angelo Broadnax entered the pod to remove two other inmates from appellant's cell to take them to the nursing staff. The officers opened the cell door for the two inmates. As the second inmate was passing through the cell door into the pod's day room, appellant ran past him into the day room, yelling that "they" were trying to kill him, rape him, and hurt him. The officers told appellant to sit down. Appellant did not sit down but approached one of the other inmates and took a swing at him. The other inmate jumped out of the way of appellant's fist, and the officers got the other two inmates out of the pod. Appellant jumped onto the table, and Broadnax got out his radio and requested backup. As Broadnax tried to return his radio to its holster, appellant jumped off the table and tried to hit Broadnax. Coulston sprayed appellant in the face with pepper spray, and he grabbed appellant and forced him onto the floor. While Broadnax and Coulston struggled with appellant on the floor trying to handcuff him, officer Emily Sneed entered the pod to assist them. As Sneed stood beside appellant's head, appellant bit her leg. The bite went through Sneed's trousers and drew blood from her leg. Sneed "holler[ed]" and jerked her leg out of appellant's mouth. Sneed testified that the bite "was extremely painful." Other officers arrived, and when she said appellant bit her, some of them took her immediately out of the cell to the nurse's office. Beneke testified that a human bite, left untreated, could lead to serious bodily injury or death. She further testified that if a person is infected with HIV, his bite could transmit the virus to the person bitten. Sneed testified she did not get infected with HIV. However, she had to have periodic blood tests over the course of a year before the doctors concluded she was not infected. Appellant was indicted for aggravated assault. The indictment alleged appellant intentionally and knowingly threatened Sneed, a person appellant knew was a public servant lawfully discharging an official duty, with imminent bodily injury and appellant used or exhibited a deadly weapon, his mouth. Besides the charged offense, the trial court also submitted the lesser included offense of assault, which required the jury to find appellant intentionally or knowingly threatened Sneed with imminent bodily injury. The jury found appellant guilty of aggravated assault as charged in the indictment. The trial court entered a finding that the jury had found appellant used or exhibited a deadly weapon. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1(21), art. 42.12, § 3g(a)(2) (Vernon Supp. 2004-05). SUFFICIENCY OF THE EVIDENCE
In his first and second points of error appellant contends the evidence is legally and factually insufficient to support his conviction for aggravated assault and that the jury should have found him guilty of assault instead of aggravated assault because the evidence does not support the jury's finding that appellant's mouth was a deadly weapon. In determining the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and 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 determining the factual sufficiency of the evidence, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict 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). Our evaluation of the sufficiency of the evidence must not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The charge defined "deadly weapon" in accordance with the penal code as meaning "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)(B) (Vernon Supp. 2004-05). Appellant argues "that a human mouth is not a deadly weapon and that a bite on the leg as evidenced in this case, does not amount to force by use of a deadly weapon." We disagree. Beneke testified that a bite is capable of causing death or serious bodily injury. Beneke also testified that appellant told her he had HIV, and Beneke explained to the jury that a bite from a person infected with HIV can potentially transmit the virus to the person bitten. Appellant bit Sneed hard enough to go through her trousers and draw blood from her leg. We conclude this evidence is sufficient to show appellant's mouth was a deadly weapon. Appellant asserts the evidence that HIV may be transmitted through a bite was "misinformation." The record contains no evidence contradicting or questioning Beneke's testimony, and appellant's assertion contains no support in the record. Appellant also asserts he was lying on the floor, surrounded by officers, had been maced, was in pain from the mace, could not open his eyes, and lacked the use of his hands when he bit Sneed. He argues he bit Sneed "to unloosen the grip she had on his hands." That appellant's bite, which was hard enough to go through Sneed's trousers and draw blood, was for the purpose of loosening her grip on his hands does not affect the sufficiency of the evidence to show he used his mouth as a deadly weapon. It is appellant's act of intentionally or knowingly biting Sneed, knowing his medical condition, hard enough to draw blood that supports the finding that appellant used his mouth as a deadly weapon. That appellant was trying to free himself does not affect the sufficiency of the evidence to support that finding. Appellant also argues the evidence is insufficient to support his conviction of aggravated assault because he was acting recklessly in biting Sneed and not intentionally or knowingly as alleged in the indictment. Appellant argues that he was acting recklessly because he "bit Complainant Sneed on her leg to unloosen the grip she had on his hands." This argument, however, supports the jury's finding appellant acted intentionally because it shows it was appellant's conscious objective or desire to engage in the conduct. See Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). Appellant also argues the evidence is insufficient to show he used his mouth as deadly weapon because Sneed did not suffer death or serious bodily injury. However, an object is a deadly weapon because "in the manner of its use or intended use it is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (emphasis added). The statute does nor require that the object actually cause death or serious bodily injury to be a deadly weapon. 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). Accordingly, appellant's argument lacks merit. Appellant also argues the jury was misled by the prosecutor's argument that HIV and AIDS are a death sentence. In reviewing the sufficiency of the evidence, we consider the evidence. The prosecutor's arguments are not part of the evidence. Mata v. State, 1 S.W.3d 226, 228 (Tex.App.-Corpus Christi 1999, no pet.). The prosecutor's jury argument cannot affect the sufficiency of the evidence. After reviewing all the evidence under the standards of review for legal and factual sufficiency, we conclude the evidence is both legally and factually sufficient to support appellant's conviction and the finding appellant used or exhibited a deadly weapon. We overrule appellant's first and second points of error. We affirm the trial court's judgment.