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Jeffrey Brinson v. State ( 2006 )


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  •                                    NO. 07-06-0034-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 1, 2006
______________________________
JEFFREY BRINSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;
NO. 2553; HON. DAVID MCCOY, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Jeffrey Brinson was convicted of aggravated assault with a deadly weapon. He
argues on appeal that the evidence is legally and factually insufficient to show that the
pavement against which he struck the victim’s head was a deadly weapon. We overrule
the issue and affirm the judgment of the trial court.
The standards by which we review the legal and factual sufficiency of the evidence
are well established. We refer the parties to Jackson v. Virginia,
    443 U.S. 307
    ,
    99 S. Ct. 2781
    ,
    61 L. Ed. 2d 560 
    (1979), Zuniga v. State,
    144 S.W.3d 477 
    (Tex. Crim. App. 2004),
Zuliani v. State,
    97 S.W.3d 589 
    (Tex. Crim. App. 2003), and King v. State,
    29 S.W.3d 556 
    (Tex. Crim. App. 2000) for an explanation of them.
Next, when a person is charged with using a deadly weapon, the evidence must
establish that the instrument used was actually deadly. Lockett v. State,
    874 S.W.2d 810
    ,
814 (Tex. App.–Dallas 1994, pet. ref’d). Furthermore, the Penal Code defines a “deadly
weapon” as “anything manifestly designed, made, or adapted for the purpose of inflicting
death or serious bodily injury; or . . . anything that 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). While asphalt pavement may not be a deadly
weapon per se, it may be shown to be so via evidence of its manner of use or intended use
and its capacity to produce death or serious bodily injury. Additionally, evidence of threats
or words used by the assailant may be considered. 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).
Appellant argues that the evidence is insufficient because it does not show injury
or that the use of the pavement could have caused death or serious bodily injury.1 We
initially note that the weapon need not actually cause death or serious bodily injury to be
1
The indictment also alleged that bodily injury was caused by appellant choking the victim and that
he used a deadly weapon to do so, nam ely his hands. Appellant does not contest whether his hands were
use d as a deadly we apo n.
2
classified as deadly. It is enough simply to show that its use or intended use had the
capability of causing same. English v. State,
    171 S.W.3d 625
    , 628 (Tex. App.–Houston
[14th Dist.] 2005, no pet.). Additionally, the record shows that 1) appellant had choked the
victim with his hands to such a degree that she could not breathe, 2) appellant then threw
her on the ground, climbed atop her, put his hands on her ears, and slammed her head
into the pavement, 3) while doing so, he told her he was going to kill her and she believed
that he would, and 4) she had bruises and a knot on her head and was diagnosed with a
concussion as a result of the incident. This is some evidence from which a jury could have
rationally concluded beyond reasonable doubt that the pavement (as used by appellant)
was capable of causing serious bodily injury or death, and such a conclusion would not
undermine our confidence in the proceeding when tested against the entire record. See
English v.
    State, 171 S.W.3d at 628 
    (holding that the evidence was sufficient to show that
an aluminum baseball bat was used as a deadly weapon when it was swung with full force
at the victim’s head causing pain, a gash, bruising, swelling, and a concussion, the victim
was extremely afraid, and the defendant told the victim he intended to kill him).
Consequently, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
3