John J. Hindera v. Texas Tech University ( 2005 )

NO. 07-02-0095-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 24, 2005

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JOHN J. HINDERA, APPELLANT

V.

TEXAS TECH UNIVERSITY, ET AL., APPELLEES



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FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-509,053; HONORABLE SAM MEDINA, JUDGE

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Before REAVIS and CAMPBELL, JJ. and BOYD, S.J. ⁽¹⁾

MEMORANDUM OPINION

By order dated January 20, 2005, this Court reinstated this appeal and notified appellant John J. Hindera that failure to take action within ten days would result in dismissal of the appeal for want of prosecution. Tex. R. App. P. 42.3(b). Hindera did not respond. Accordingly, we dismiss the appeal.

Don H. Reavis

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

at 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)(A) & (B) (Vernon Supp. 2005). And, while a fireplace poker may not be a deadly weapon per se, it may be shown to be so via evidence of its size, shape, manner of use or intended use, and capacity to produce death or serious injury. Additionally, evidence of the physical proximity between the victim and the object, threats or words used by the assailant, the size and shape of the weapon, the weapon's ability to inflict death or serious bodily injury, and the manner in which the defendant used the weapon are indicia susceptible of consideration. Nash v. State, 175 S.W.3d 427, 430 (Tex. App.-Texarkana 2005, pet. ref'd); Bailey v. State, 46 S.W.3d 487, 491 (Tex. App.- Corpus Christi 2001, pet. ref'd). Finally, while expert testimony regarding the deadly nature of an object may be offered, it is not required. English v. State, 647 S.W.2d 667, 668-69 (Tex. Crim. App. 1983).

Here, the record shows that the fireplace poker used by appellant against his wife Cynthia, although not described in the record, was introduced into evidence. Additionally, Cynthia testified that appellant stabbed and hit her with it about her arms, breasts, throat and face. And, while stabbing her, one thrust pierced her cheek, "went all the way through [her] mouth, . . . came out this side . . . ." and broke a partial plate holding various false teeth. During this time, appellant also stated that he was going to kill her, and Cynthia was afraid he was. Pictures of the various wounds suffered by the victim were also admitted into evidence.

Admittedly, no description of the weapon appears in the record. Nor did an expert testify as to the poker's deadly nature. However, the jury had the actual poker. So too did it hear testimony and see pictures depicting the force with which it was used and the nature of the wounds it was capable of inflicting. Given this, a jury could have rationally inferred beyond reasonable doubt that the poker was capable of causing death or serious bodily injury. Moreover, the finding is not manifestly unjust. Nor does it undermine our confidence in the proceeding when tested against the evidence of record. Consequently, that portion of the verdict equating the poker to a deadly weapon is supported by both legally and factually sufficient evidence.

The judgment of the trial court is affirmed.

Brian Quinn

Chief Justice

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