In order to demonstrate deficient performance based on a failure to request a jury instruction, "an appellant must show he was entitled to the instruction." Davis v. State, 533 S.W.3d 498, 513 (Tex. App.—Corpus Christi 2017, pet. ref'd). When an appellant has nothing to lose by requesting a defensive instruction and it would have been error for the trial court to refuse the instruction, we may find deficient performance even without counsel's explanation for failing to request the instruction.

Brooks, 900 S.W.2d at 472 (citing TEX. PENAL CODE ANN. § 1.07(a)(34)). "Although a fist or hand is not a deadly weapon per se, it can become a deadly weapon if in the manner of use it is capable of causing death or serious bodily injury." Id.; see Davis v. State, 533 S.W.3d 498, 508 (Tex. App.—Corpus Christi 2017, pet. ref'd) (citing Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004); Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983)). "The State need not show that an object actually caused serious bodily injury."

no pet.) (citing Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983)); see Davis v. State, 533 S.W.3d 498, 508 (Tex. App.- Corpus Christi 2017, pet. ref d) (citing Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004)).

As further support for his arguments that the evidence in this case was insufficient, Davis-Grant primarily relies on two opinions from our sister courts of appeals in which those courts concluded that the evidence was insufficient to establish that the defendants used or exhibited deadly weapons. See Davis v. State, 533 S.W.3d 498 (Tex. App.-Corpus Christi 2017, pet. ref'd); Lockett v. State, 874 S.W.2d 810 (Tex. App.-Dallas 1994, pet. ref'd). However, neither case addressed a situation in which the victim was strangled by an offender and described experiencing the effects associated with strangulation.

The Texas courts have found assault family violence to be a crime of moral turpitude, and therefore admissible pursuant to Texas Rule of Evidence 609, when the assault is against a woman. Davis v. State, 533 S.W.3d 498, 515 (Tex. App.—Corpus Christi-Edinburg 2017, pet. ref'd) (collecting cases on point).

However, in a different case, when the defendant knocked the complainant unconscious with a single blow and then sat on top of him and pounded his face and head with both fists, causing a subarachnoid hemorrhage and a traumatic contusion to the brain, the Sixth Court of Appeals found that the evidence was sufficient to establish that his hands were deadly weapons under the statute.Davis v. State , 533 S.W.3d 498, 509 (Tex. App.—Corpus Christi 2017) ("We conclude that [complainant]'s injuries do not demonstrate that appellant used his hands in a manner that was capable of causing death or serious bodily injury.").Brooks v. State , 900 S.W.2d 468, 472–73 (Tex. App.—Texarkana 1995, no pet.).

"In concluding that hands were used as a deadly weapon, Texas courts have cited injuries such as unconsciousness, vision impairment, brain injury, internal injury, and those suffered from strangulation." Davis v. State, 533 S.W.3d 498, 508 (Tex. App.- Corpus Christi-Edinburg 2017, pet. ref'd).

Additionally, though Tomlin's testimony established that he was assaulted, his injuries-a knot behind his ear and a small laceration on his chin-were relatively minor and are not sufficient in and of themselves to establish that McCurdy used his hands or feet in a manner capable of causing death or serious bodily injury. See Davis v. State, 533 S.W.3d 498, 509 (Tex. App.-Corpus Christi-Edinburg 2017, pet. ref'd) (concluding that bruising to victim's face, a laceration to his nose, and numbness on his head did not show that the appellant had used his hands as a deadly weapon); see also Lane, 151 S.W.3d at 191 (noting that injuries, if any, sustained by the victim are factors in determining whether a hand or a foot was used as a deadly weapon).

A prior conviction for assault family violence is an essential element of felony assault family violence. Davis v. State, 533 S.W.3d 498, 512-13 (Tex. App.-Corpus Christi-Edinburg 2017, pet. ref'd).

Appellant relies on Davis v. State for this proposition, asserting that the facts are "remarkably similar" to those of the present case. 533 S.W.3d 498, 509 (Tex. App.--Corpus Christi 2017, pet. ref'd). Davis, however, discusses the circumstances that govern when hands may be considered deadly weapons.