Valerie Denise Shaw v. State ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00768-CR



Valerie Denise Shaw, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 0944210, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of attempted murder and assessed punishment at imprisonment for nine years and a $10,000 fine. Tex. Penal Code Ann. § 15.01 (West 1994). ⁽¹⁾ We will affirm.

The indictment alleged that appellant attempted to murder Todd Cooks by shooting him with a deadly weapon, "to wit: a firearm." In her only point of error, appellant contends the evidence is legally insufficient to sustain her conviction because the State failed to prove that the weapon she used to commit the offense was a firearm. The weapon was not admitted in evidence and there is no testimony expressly describing the weapon as a firearm. Although witnesses to the shooting said they saw appellant holding a gun, appellant argues that a "gun" is not necessarily a "firearm." See Boyett v. State, 692 S.W.2d 512, 517 (Tex. Crim. App. 1985) ("gun" is not deadly weapon per se).

The victim's wife, Etta Kelly, testified that she saw appellant holding a gun wrapped in a bandanna. Kelly said appellant made a shooting motion and that she heard three shots. Kelly's sister, who was also present, testified that she also heard three shots but only saw appellant shoot twice. Cooks testified that he heard two gunshots and felt one bullet strike him. Both the investigating police officer and the emergency medical technician who responded to the shooting testified that Cooks suffered a gunshot wound to the chest. Dr. David Harshaw, the treating physician, testified that appellant's gunshot wound was nearly fatal. The projectile, which Harshaw believed to be a .22 caliber bullet, passed through Cooks's lung, heart, and vena cava before embedding itself in a rib.

A "firearm" is statutorily defined as a device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance. Tex. Penal Code Ann. § 46.01(3) (West 1994). Common usage is to the same effect. Webster's Third New International Dictionary 854 (Philip B. Gove ed., 1986) (weapon from which shot is discharged by gunpowder). It is obvious from the evidence that the weapon used by appellant expelled a projectile, probably a .22 caliber bullet. From the testimony describing gunshots and from the severity of Cooks's injuries, the jury could reasonably infer that the bullet was expelled by means of the energy generated by an explosion. See Wawrykow v. State, 866 S.W.2d 96, 99 (Tex. App.--Beaumont 1993, no pet.) (jury may use common sense and apply common knowledge and experience when drawing inferences from evidence). Viewing all the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that appellant shot Cooks with a firearm. See Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985) (testimony that defendant wielded "revolver" sufficient to support finding he used firearm); see also Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981) (test for legal sufficiency of evidence). The point of error is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: June 21, 1995

Do Not Publish

1. The amendment to section 15.01 effective September 1, 1994, is irrelevant to this cause.