Opinion
NUMBER 13-16-00406-CR
02-08-2018
JOHN MARTINEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 427th District Court of Travis County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Benavides
By one issue, appellant John Paul Martinez challenges his conviction for aggravated assault with a deadly weapon, a second-degree felony. See TEX. PENAL CODE ANN. § 22.02 (West, Westlaw through 2017 1st C.S.). Martinez alleges the evidence was insufficient to support a deadly weapon finding. We affirm.
I. BACKGROUND
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal was transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.)
On September 18, 2015, Martinez worked on a construction job for Joel Cabrera, the complainant. At trial, Cabrera testified that Martinez had been "belligerent" throughout the day, asking about money. Cabrera stated that the particular job they were working on was a "warranty job" and Martinez had volunteered to help, knowing he would not be paid at that time. Cabrera noticed that Martinez was playing with a two-by-four wooden board in the back seat of the truck on their way home. When Cabrera arrived to drop Martinez off, Martinez told him he could not find his cigarettes, and Cabrera began helping Martinez look in the vehicle for them. Cabrera said the next thing he knew, Martinez came towards him with the wooden board. Martinez swung the board and Cabrera blocked the swing with his arm. Cabrera remembered that Martinez kept swinging the board, but Cabrera was able to dodge it. Cabrera then saw Martinez grab a hammer and break out the side and front windows of Cabrera's truck.
Eliseo Campos Jr. also testified about the event. Campos had met Cabrera in their neighborhood and agreed to work with Cabrera that day. Campos recalled that when Martinez first entered the truck, he was cursing and asking about money. Campos stated that Martinez was calm during the workday, as they had worked on some of the projects together. Campos had seen Martinez applying letters to a two-by-four wooden board at the project site, and Martinez had told him it was a "too late stick," which Martinez stated meant "too late for an apology." Campos stated that when they dropped Martinez off, Martinez had a conversation with Cabrera about getting paid, and Campos saw Cabrera take a defensive posture as Martinez took "mock swings" at Cabrera. Campos testified that Martinez tapped Cabrera on the wrist once with the wooden board, and then swung it at the truck, causing the board to break. Campos confirmed that Martinez broke the windows with a hammer, and then he witnessed Martinez just walk into his house.
Officer Adam Curvin of the Austin Police Department responded to the scene and observed damage to Cabrera's truck. Officer Curvin also located a two-by-four wooden board broken into three pieces that said "to [sic] late" on it and had a screw embedded into the board. Officer Curvin testified that Cabrera said he "felt pain" in his arm, had scratches on the arm, and apparent swelling. Officer Curvin stated that he believed by the manner of use that the two-by-four board was a deadly weapon. Officer Curvin explained that one could generate the force necessary to cause serious bodily injury or death by hitting someone with the board, and that the screw could have caused serious injury.
Martinez testified and agreed that he and Cabrera worked on construction projects together occasionally. Martinez stated they became friends and would drink alcohol and smoke methamphetamine together. Martinez explained that Cabrera would ask him for drugs and Martinez would locate them for Cabrera. In August 2015, Cabrera asked Martinez to get him a large amount of methamphetamine, which Martinez did, and that Cabrera owed Martinez $2,500.00 for the drugs. Martinez also stated he was working for Guadalupe Samarripa at the time this incident occurred and not doing side work for Cabrera. Martinez told the jury that he was not present during the incident, had never seen the two-by-four board, did not know Campos, and did not hit Cabrera with the two-by-four board.
The jury found Martinez guilty of aggravated assault with a deadly weapon and sentenced him to five years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. This appeal followed.
II. EVIDENCE WAS SUFFICIENT TO ESTABLISH A DEADLY WEAPON FINDING
By his sole issue, Martinez alleges the evidence was insufficient to establish that the two-by-four board was a deadly weapon.
A. Standard of Review
When evaluating a sufficiency challenge, the reviewing court views the evidence in the light most favorable to the verdict to determine whether a rational jury could find the defendant guilty beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality opinion); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). In order to obtain reversal of his conviction on a claim of insufficiency of the evidence, Martinez must show that no rational jury could have found all the elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 902. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, and a reviewing court is not to substitute its judgment as to facts for that of the jury as shown through its verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflict in favor of the verdict, even if it is not explicitly stated in the record. Id.
A reviewing court must measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.
B. Applicable Law
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West, Westlaw through 2017 1st C.S.). Assault rises to the felony level if a person commits assault as defined in section 22.01 and the person: (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a)(1-2).
A deadly weapon is defined as (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Id. § 1.07(17) (West, Westlaw through 2017 1st C.S.). Serious bodily injury is defined as bodily 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. Id. § 1.07(46).
C. Discussion
The only element Martinez challenges is whether the two-by-four board was a "deadly weapon." See id. § 22.02(a)(2).
To justify a deadly weapon finding under section 1.07(a)(17)(B), the State need not establish that the use or intended use of an implement actually caused death or serious bodily injury; only that "the manner" in which it was either used or intended to be used was "capable" of causing death or serious bodily injury. Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017) (citing Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008)) (emphasis added). Nor does the plain language of the provision require that the actor actually intend death or serious bodily injury. Id. Instead, we consider words and other threatening actions by the defendant, including the defendant's proximity to the victim; the weapon's ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon; and the manner in which the defendant used the weapon. Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017). Determining whether a weapon is deadly in its manner of use or intended use, however, depends on the particular facts of each case, and no one factor is determinative. See id.
The record reflects that Officer Curvin testified about his knowledge of instruments used to inflict blunt trauma and agreed with the State that he felt the two-by-four wooden board was a deadly weapon. The two-by-four board also had a screw embedded in it which could have caused severe injury to a person. Cabrera testified that Martinez was "belligerent" all day, and Campos stated that Martinez told him the two-by-four was a "too late stick". Campos testified that both Cabrera and Campos were larger men and that Martinez swung the two-by-four board multiple times before hitting Cabrera. Cabrera testified that he saw the two-by-four board as it was coming down, was able to hold his arm up in a defensive posture, and the two-by-four board made contact with his arm, causing pain and swelling. Viewing the evidence in the light most favorable to the verdict, we find that a rational jury could have concluded the two-by-four board was a deadly weapon.
III. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 8th day of February, 2018.