No. 05-02-01888-CR.
Opinion Filed January 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01792-Nw.
Affirm.
Before Justices MORRIS, O'NEILL, and LANG.
Opinion By Justice LANG.
Phillip St. Auburn King appeals his conviction for aggravated assault. After a jury found appellant guilty, the trial court assessed punishment at thirty-five years' confinement and an $800 fine. In a single issue, appellant contends that the trial court erred in submitting an erroneous jury charge. For the reasons that follow, we affirm the trial court's judgment.
FACTUAL CONTEXT
Eldon Wesley sat in the front yard of Yoland Brown's house on July 29, 2001, waiting for Brown who was getting ready to go out with him. As he waited, appellant drove up and parked in Brown's driveway. Appellant approached Wesley and confronted him about his relationship with Brown, who had also been appellant's girlfriend at some point. After a brief exchange, appellant returned to his car and began rummaging for something in the trunk. The parties contest whether Wesley then rushed at appellant or whether appellant struck without physical provocation. However, the parties agree that appellant struck Wesley behind the left ear with a hammer. Appellant struck Wesley's head a second time, crushing one of the fingers on Wesley's hand, which he had raised defensively to his head. Appellant pursued Wesley across the street as he tried to get away and struck Wesley repeatedly on the arms and legs. After the attack, Wesley underwent surgery for a depressed skull fracture and remained hospitalized for more than a week. As a result of the attack Wesley experiences frequent headaches, seizure, and diminished memory capability. Appellant did not object to the jury charge at trial. On appeal, he now claims the following portion of the charge was erroneous: Now, if you find from the evidence beyond a reasonable doubt that on or about the 29th day of July, 2001, in Dallas County, Texas, the defendant, PHILLIP ST. AUBURN KING, did unlawfully then and there intentionally, knowingly or recklessly cause bodily injury to ELDON WESLEY, hereinafter called complainant, by striking complainant with a hammer, and said defendant did use or exhibit a deadly weapon to-wit: a hammer, during the commission of the assault, or further, said defendant did then and there intentionally, knowingly or recklessly cause serious bodily injury to another, namely, ELDON WESLEY, hereinafter called complainant, by striking complainant with a hammer, a deadly weapon, you will find the defendant guilty of Aggravated Assault, as charged in the indictment. Appellant contends, based on this charge, the jury could have returned a guilty verdict by finding the appellant (i) caused serious bodily injury, (ii) used a deadly weapon to wit: a hammer, or (iii) exhibited a deadly weapon to wit: a hammer. He argues that because a hammer becomes a deadly weapon only by use, this charge erroneously authorized conviction for conduct not prohibited by law; i.e., exhibiting a hammer. STANDARD OF REVIEW
Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1984)). First, we must decide whether the jury charge contains error. Id.; Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim. App. 1998); see also Tex.R.App.P. 44.2. If the charge does contain error, we must then determine whether sufficient harm resulted from the error to require reversal. Mann, 964 S.W.2d at 641. APPLICABLE LAW
A person commits aggravated assault by either (1) causing serious bodily injury to another or (2) using or exhibiting a deadly weapon during the commission of an assault. Tex. Pen. Code Ann. § 22.02(a)(1)-(2) (Vernon 2004). A hammer is not, per se, a deadly weapon. However, depending on the circumstances, these items may become "deadly weapons" under the statute. Bethel v. State, 842 S.W.2d 804, 807 (Tex. App.-Houston [1st Dist.] 1992, no writ) (concluding that a 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, 342-43 (Tex. App.-Texarkana 1998, pet. ref'd) (finding a Duraflame log was a deadly weapon and citing authorities where objects such as a hammer, kitchen knife, pipe, fist, hand, foot, Coke bottle, bar stool leg, ax handle, and fire were determined to be deadly weapons). Moreover, the statute "does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury." McCain, 22 S.W.3d 497, 503 (Tex.Crim. App. 2000); see Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2004); Bui, 964 S.W.2d at 343; Brooks v. State, 900 S.W.2d 468, 472 (Tex. App.-Texarkana 1995, no writ); Clark v. State, 886 S.W.2d 844, 845 (Tex. App.-Eastland 1994, no writ). APPLICATION OF LAW TO FACTS
Appellant argues that because a hammer becomes a deadly weapon through the manner of its use, a hammer is not a deadly weapon if it is merely exhibited. Thus, appellant reasons, one cannot commit aggravated assault by merely exhibiting a hammer. Accordingly, appellant contends the trial court erred by submitting a jury charge that allowed the jury to convict appellant for exhibiting a hammer. We disagree with appellant's position. The statute is phrased in the alternative, allowing for conviction if a person either "uses or exhibits a deadly weapon during the commission of an assault." Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 2004) (emphasis added). The charge at issue instructs the jury as to the two ways of committing aggravated assault under Tex. Pen. Code Ann. § 22.02. Therefore, the jury could convict if it found, beyond a reasonable doubt, appellant (i) caused serious bodily injury to Wesley or (ii) either used or exhibited a deadly weapon during the commission of his assault upon Wesley. The record clearly shows appellant used a hammer during the commission of his assault upon Wesley. In his testimony at trial, appellant unequivocally admitted he used the hammer to strike Wesley on the head, hands, arms, and legs. The record also reflects that appellant intended to use the hammer in a manner capable of causing death or serious bodily injury. These facts satisfy the statutory definition of aggravated assault. Therefore, we conclude the instruction was not erroneous. CONCLUSION
Having resolved appellant's sole issue adversely to him, we affirm the trial court's judgment.