Opinion
No. 05-03-00632-CR.
Opinion Filed February 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court Collin County, Texas, Trial Court Cause No. 296-81733-02. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
A grand jury indicted Lee Otis Wright for aggravated assault with a deadly weapon, alleging he cut his girlfriend's face with an unknown sharp object. The indictment alleged alternate means of committing the assault by: (1) causing bodily injury and using and exhibiting a deadly weapon or (2) causing serious bodily injury and using and exhibiting a deadly weapon. See Tex. Pen. Code Ann. § 22.01, 22.02(a) (Vernon Supp. 2004). A jury authorized to convict Wright under either theory returned a general verdict of guilty. Wright now appeals the conviction asserting in three points of error the evidence is factually insufficient to show the use of a deadly weapon, bodily injury by use of a deadly weapon, and serious bodily injury. We affirm. In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence viewed by the fact finder establishes that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). When, as here, the jury is authorized to convict under alternate means of committing the offense and the jury returns a general verdict of guilty, we will uphold the conviction if the evidence is sufficient to support a finding of guilt under any of the alternatives submitted. Gutierrez v. State, 85 S.W.3d 446, 449-50 (Tex.App.-Austin 2002, pet. filed) Based on the indictment in this case, to obtain a conviction, the State had to prove Wright intentionally and knowingly caused his girlfriend either bodily injury or serious bodily injury by cutting her face with a deadly weapon-an unknown object that in the manner of its use and intended use was capable of causing deadly and serious bodily injury. See Tex. Pen. Code Ann. §§ 1.07(a)(17)(B), 22.01, 22.02(a). The Texas Penal Code defines "bodily injury" as physical pain, illness, or any impairment of physical condition. Id. § 1.07(a)(8). "Serious bodily injury" is 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 a bodily member or organ. Id. § 1.07(a)(46). In his first two points of error, Wright asserts the evidence is factually insufficient to show the object used during the assault was a deadly weapon and caused bodily injury. Relevant to these two points, the record reflects the cut Wright's girlfriend received was "extensive," approximately eleven centimeters long, running from just under her ear to the corner of her mouth. Wright's girlfriend testified she did not experience any pain and the bleeding was "minimal." The cut was subcutaneous, requiring several stitches to close, but did not affect the facial nerve. As a result of the injury, Wright's girlfriend missed work for two weeks. At the time of trial, the wound had healed, but a scar remained. Although medical evidence showed the wound would not "cause a serious permanent disfigurement," the emergency room doctor who treated Wright's girlfriend testified that if the object used had "contacted her anywhere around the neck, there could have been a severe vascular injury that could have caused . . . a major problem." Additionally, the investigating officer testified that, based on the depth of the cut, the object "in its intended use or in the manner of its use was capable of causing death or serious bodily injury." Wright maintains in his first point that given the evidence showing the wound would not cause a serious permanent disfigurement, his girlfriend could not have sustained serious bodily injury, and, thus, the object used during the assault could not be a deadly weapon. Wright further maintains in his second point that because his girlfriend did not experience pain at the time of the assault, she did not suffer bodily injury as contemplated by the penal code. We disagree. To be a deadly weapon, an object need only be capable of causing serious bodily injury in its manner of use or intended use. Tex. Pen. Code Ann. § 1.07(a)(17)(B); McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). It does not actually need to cause serious bodily injury. McCain, 22 S.W.3d at 503; see also Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App. 1978) (presence of wounds not prerequisite to finding weapon is deadly); Taylor v. State, 859 S.W.2d 466, 468 (Tex.App.-Dallas 1993, no pet.) (weapon is deadly if it is capable of causing serious bodily injury in the manner of its use regardless of whether actual result is infliction of serious bodily injury). Although there was evidence that the wound would not cause "serious permanent disfigurement," there was also evidence showing the object used during the assault could have caused a severe vascular injury or even death. This evidence supported a finding the object was a deadly weapon. There is also evidence supporting a finding of bodily injury by use of a deadly weapon. Although there was no evidence of pain, the jury could find bodily injury by finding evidence of "any impairment of physical condition." Tex. Pen. Code Ann. § 1.07(a)(8). The jury could make this finding from the evidence showing the subcutaneous cut Wright's girlfriend received, which required several stitches to close, caused her to miss work for two weeks and left a scar. See Cano v. State, 614 S.W.2d 578, 579 (Tex.Crim.App. 1981) (complainant who required stitches for a cut to her mouth after being pushed to the ground during a robbery suffered bodily injury); Ramirez v. State, 518 S.W.2d 546, 546-48 (Tex.Crim.App. 1975) (officer hit in the face by defendant during arrest suffered bodily injury); Hernandez v. State, 946 S.W.2d 108, 111-14 (Tex.App.-El Paso 1997, no pet.) (complainant with two centimeter laceration of chest suffered bodily injury); see also Lane v. State, 763 S.W.2d 785, 786 (Tex.Crim.App. 1989) (bodily injury definition "purposefully broad . . . to encompass even relatively minor physical contacts so long as they constitute more than mere offensive touching"). Having reviewed the entire record under a neutral light, we conclude the evidence showing use of a deadly weapon and bodily injury by use of a deadly weapon is neither so obviously weak as to undermine confidence in the jury's determination, nor greatly outweighed by contrary proof. Accordingly, we overrule Wright's first and second points of error. In his third point of error, Wright asserts the evidence is factually insufficient to show "serious bodily injury." However, having already concluded the evidence is sufficient to show Wright committed aggravated assault by causing bodily injury and using a deadly weapon, we need not address the merits of this complaint. See Gutierrez, 85 S.W.3d at 450. We overrule Wright's third point of error. We affirm the trial court's judgment.
Wright frames his points as follows: the trial court erred in failing to grant appellant's motion for instructed verdict since the evidence is factually insufficient to show (1) use of a deadly weapon; (2) bodily injury by use of a deadly weapon; and (3) serious bodily injury. A complaint about the court's failure to grant an instructed verdict is a challenge to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). However, Wright does not cite to any authority concerning legal sufficiency. Rather, Wright cites exclusively to Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000) and quotes that portion of Johnson addressing "the appropriate scope of the Clewis criminal factual sufficiency review." See Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Additionally, Wright seeks as relief reversal and remand Given the relief requested and the authority cited, we construe Wright's's complaint as a challenge only to the factual sufficiency of the evidence. See Martinets v. State, 884 S.W.2d 185, 189 (Tex.App.-Austin 1994, no pet.) (op. on reh'g).