Lucina Lorena Baltazar v. the State of Texas

Affirmed and Memorandum Opinion filed October 11, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00417-CR
LUCINA LORENA BALTAZAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1553249
MEMORANDUM OPINION
A jury convicted appellant Lucina Lorena Baltazar of aggravated assault
with a deadly weapon. See Tex. Penal Code § 22.02(a)(2). Appellant raises five
issues on appeal. In her first issue, appellant argues the evidence was insufficient
to rationally conclude brass knuckles were a deadly weapon. In her second and
third issues, appellant argues that she was egregiously harmed by the trial court’s
jury charge because it did not define “serious bodily injury” and did not require the
jury to determine whether brass knuckles were a deadly weapon. In her fourth and
fifth issues, appellant contends that, because of the alleged deficiencies in the jury
charge, she was deprived of her constitutional right to a jury trial. See U.S. Const.
amend. VI; Tex. Const. art. I, § 10. We affirm.
BACKGROUND
I. Pretrial Events
Dina Garcia, the complainant, was involved in a physical altercation with
appellant outside of La Curva Bar. Complainant was struck several times in the
head until she was bloody. Complainant was driven home by Sylvia Rios, owner
of La Curva Bar, and was subsequently taken to the hospital by her adult daughter.
Complainant was then transferred to another hospital due to concerns about her
vision. There, she was treated for multiple injuries and received stitches.
Three days later, complainant arrived at the police station with a copy of
appellant’s Facebook profile. She recounted the events to Detective David
Hobson, who believed her statement was credible and reliable. Appellant was
eventually indicted for aggravated assault, specifically “intentionally and
knowingly [causing] bodily injury to [complainant] . . . by striking the complainant
in the face . . . [using and exhibiting] a deadly weapon, namely a brass knuckles.”
II. Trial Testimony
The parties proceeded to a jury trial where the following relevant witnesses
testified: (1) Sylvia Rios, owner of La Curva Bar; (2) complainant; (3) Detective
David Hobson; and (4) Jorge Chavira, appellant’s friend.
Sylvia Rios testified that she witnessed complainant and appellant arguing in
her bar. As Rios began closing the bar, she again saw appellant (now accompanied
by Chavira) and complainant (now accompanied by a male friend) arguing. Rios
ordered them outside, closed the bar, and departed with her boyfriend and
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employees. Rios returned to the bar minutes later and witnessed appellant punch
complainant in the head repeatedly as appellant pinned complainant’s head against
a patio table. Rios attempted to separate the two women, prompting appellant to
swing at Rios. Rios noticed something “chromey” across appellant’s knuckles.
Rios described the object and testified the State’s demonstrative brass knuckles
exhibit resembled what appellant used while striking complainant. With the help
of others, Rios managed to separate the women and then took complainant home in
a bloody condition. Rios dropped complainant off and instructed complainant’s
adult daughter to take her to the hospital.
Complainant testified appellant and Chavira confronted her after she accused
Chavira of cheating at cards. Complainant asserted appellant’s demeanor was
argumentative, and she wanted to fight. Appellant struck complainant inside the
bar, and the two women pulled each other’s hair until they were separated. When
complainant left around closing time, she stated she moved toward a patio table for
protection when she saw appellant approach her. Complainant then felt the first of
many blows to her head from appellant. Complainant believed she was being hit
by a rock or a bottle, and later stated she realized it was a metal object sometimes
called a “mitten.” Complainant stated the object looked like rings on appellant’s
fingers and agreed the State’s demonstrative exhibit resembled what appellant used
while strikingher. After appellant was separated from complainant, Rios drove
complainant home. Complainant testified she was given stitches at a hospital, and
it took over a month for the bruising on her face to heal. Further, she stated her
eyesight was not the same after that; for about a year, one of her eyes was closed.
Complainant also confirmed having multiple scars on her face and showed them to
the jury.
Detective David Hobson testified he had been a Houston Police Department
officer for over eleven years, six of which were spent as a detective on the
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Homicide division of Major Assaults, Special Investigations, and “Murder Squad.”
Detective Hobson met complainant at the police station three days after the assault.
Detective Hobson believed the complainant suffered serious bodily injury, which
from his training and experience appeared severe. Detective Hobson affirmed that
complainant’s injuries from the night of the incident were consistent with known
injuries caused by brass knuckles. Further, he personally had cases where brass
knuckles caused serious bodily injury and knew of cases where brass knuckles had
caused death. Finally, Detective Hobson identified the State’s demonstrative
exhibit as brass knuckles.
Jorge Chavira, appellant’s friend, testified that he was at La Curva Bar the
evening of the incident. Chavira stated that he was playing poker with a few other
patrons when complainant drunkenly interfered with the game by revealing
players’ hands. Chavira then stated that complainant slapped him after he rejected
her advances. Chavira testified that appellant arrived at La Curva later in the night
and began fighting with complainant when complainant approached appellant and
Chavira’s table to “bother them.” Chavira claimed that complainant pulled a
support stake out of a potted plant and attempted to hit appellant with it. Chavira
testified he took the stake from complainant, and a fight between complainant and
appellant ensued. He stated the two women pulled each other’s hair, and that
appellant did not use any weapons. Further, Chavira testified that the two women
departed after they were separated, and that complainant was not injured as a result
of the confrontation. When Chavira was shown State’s Exhibit Number 2, a photo
of complainant injured and bleeding immediately following the assault, he stated
that he did not see complainant in that state the night of the confrontation. He then
testified that complainant’s photographed injuries looked severe.
III. Jury Charge and Verdict
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Before the parties gave their closing arguments, counsel for the State and
appellant both certified on the record that they had reviewed the court’s charge and
approved of it as written. The charge, in relevant part, instructed the jury that “a
person commits the offense of assault if she intentionally, knowingly, or recklessly
causes bodily injury to another.” Further, the charge defined aggravated assault as
(1) an assault committed where (2) “the [perpetrator] uses or exhibits a deadly
weapon during the commission of the assault.” “Deadly weapon” was defined as
“a firearm or 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 is
capable of causing death or serious bodily injury,” and “bodily injury” was
indicated to mean “physical pain, illness or any impairment of physical condition.”
These definitions are identical to the statutory language included in the Texas
Penal Code. See Tex. Penal Code §§ 1.07(a), 22.01(a)(1), 22.02(a)(2).
The jury found appellant “guilty of aggravated assault, as charged in the
indictment.” The jury also made a deadly weapon finding. The trial court
subsequently assessed appellant’s punishment as two years in prison. This appeal
followed.
ANALYSIS
Appellant challenges her conviction in five issues. Appellant’s first issue
challenges the sufficiency of the evidence. Appellant argues the evidence was
insufficient to rationally conclude brass knuckles were deadly weapons.
Appellant’s second and third issues challenge the adequacy of the jury charge.
Appellant argues she suffered egregious harm because the jury charge neither
defined “serious bodily injury” nor required the jury to determine whether brass
knuckles were deadly weapons. In her fourth and fifth issues, appellant asserts she
was deprived of a jury trial. Appellant argues she was deprived of a jury trial
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guaranteed by the Tex. Const. art. I, § 10 and U.S. Const. amend. VI because the
jury charge did not instruct the jury to determine whether brass knuckles were a
deadly weapon.
I. The evidence is sufficient to support appellant’s conviction.
In her first issue, appellant contends the evidence is insufficient to support
her conviction for aggravated assault. Specifically, appellant argues the evidence
is insufficient to rationally conclude brass knuckles were deadly weapons in the
manner and means of their use.
A. Standard of review
We review evidentiary sufficiency challenges under the standard set forth in
Jackson v. Virginia. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The reviewing
court must consider the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Anderson v.
State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013).
The jury is the sole judge of the credibility of witnesses and the weight to
afford their testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim.
App. 2012). The jury may reasonably infer facts from the evidence presented,
credit the witnesses it chooses, disbelieve any or all of the evidence or testimony
proffered, and weigh the evidence as it sees fit. See Williams v. State, 473 S.W.3d
319, 324 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). When the record
supports conflicting inferences, the reviewing court presumes the trier of fact
resolved the conflicts in favor of the State and defers to that determination.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see Marshall v.
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State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) (“We defer to the jury’s
finding when the record provides a conflict in the evidence.”). We will uphold the
verdict unless we determine any rational factfinder would have a reasonable doubt
as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App.
2009). Although the parties may disagree about the logical inferences that flow
from undisputed facts, where there are two permissible views of the evidence, the
jury’s choice between them cannot be clearly erroneous. Braughton v. State, 569
S.W.3d 592, 608 (Tex. Crim. App. 2018).
B. The record contains legally sufficient evidence to support the
jury’s finding that brass knuckles were a deadly weapon.
A person commits assault if she “intentionally, knowingly, or recklessly
causes bodily injury to another.” Tex. Penal Code § 22.01(a)(1). Further, a person
commits the offense of aggravated assault if she (1) “commits assault as defined
[previously,]” and (2) “uses or exhibits a deadly weapon during the commission of
the assault.” Tex. Penal Code § 22.02(a)(2). A deadly weapon is “anything that in
the manner of its use or intended use is capable of causing death or serious bodily
injury.” Tex. Penal Code § 1.07(a)(17). The plain language of this provision does
not require the actor to actually intend death or serious bodily injury. McCain v.
State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Rather, an object is a deadly
weapon if the actor intends a use of the object that would be capable of causing
death or serious bodily injury. Id. “Serious bodily injury” is defined as “bodily
injury that creates a substantial risk of death or that caused death, serious
permanent disfigurement, or protracted loss or impairment of the function of any
bodily member or organ.” Tex. Penal Code § 1.07(a)(46).
Appellant first asserts, “if an object could be a deadly weapon is [sic] some
instances and not in others, the State must prove beyond a reasonable doubt that in
the instance in question, it actually was used in a manner of use was [sic] capable
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of causing death or serious bodily injury.” Appellant further contends the deadly
weapon finding “was based on the same erroneous analysis condemned . . . in
Flores [v. State,]” where the court emphasized that a deadly-weapon analysis
involves an assessment of the facts of the case showing the defendant’s particular
manner of use or intended use of the object. See Flores v. State, 620 S.W.3d 154,
159 (Tex. Crim. App. 2021).
In Flores, appellant disguised an electric drill in plastic bags and a black
sleeve to imitate a gun during the commission of a robbery. Id. at 156. Fearing the
feigned “gun,” the store owner gave appellant money from the register. Id. In
deciding whether there was legally sufficient evidence to support the finding that
the drill was a deadly weapon, the Court of Criminal Appeals considered the two-
step process set out in McCain: determine (1) whether the object could be a deadly
weapon under the facts of the case; if so, (2) decide “whether the deadly weapon
was used or exhibited during the offense.” Id. at 158 (citing McCain, 22 S.W.3d at
502). According to the Court of Criminal Appeals, the intermediate appellate court
conducted an incomplete analysis of the McCain process, because it relied on
expert testimony which stated that a drill could be used to stab, drill, or bludgeon.
Id. at 157. The Court of Criminal Appeals observed that, while there are uses for a
drill that may cause serious bodily injury or death, the record in Flores lacked any
evidence to suggest appellant used or intended to use the drill in any such manner.
Id.
The Flores court ultimately reversed the intermediate appellate court, stating
that its analysis was improper because it relied “on speculation about some
possible use of a drill as a deadly weapon, rather than examining the actual
evidence in the record to determine whether [a]ppellant intended any use (e.g.,
striking, stabbing, drilling) that would be capable of causing death or serious
bodily injury.” Id. (emphasis added).
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By contrast, the record in the instant case provides actual evidence
establishing that, when appellant used the brass knuckles on the complainant, she
intended a use capable of causing serious bodily injury or death. Complainant
testified that appellant hit her more than six times in the head with a metal object
that was similar to the State’s demonstrative brass knuckles exhibit. Complainant
denied the blows were accidental. In addition, Rios testified that she saw
complainant being struck or hit by appellant in an uppercut motion, as appellant
held complainant’s head against a table. Rios believed the strikes were intentional
and agreed appellant wore a metallic weapon across her knuckles which matched
the State’s demonstrative brass knuckles exhibit. Appellant’s blows to
complainant only ceased when Rios pulled appellant off the complainant, at which
time appellant attempted to strike Rios. Moreover, Detective Hobson testified that
complainant’s injuries were consistent with known injuries from brass knuckles,
which commonly involve a lot of blood. Detective Hobson then stated brass
knuckles, often weighing between a half pound and “a couple” of them, have edges
which are a harder substance than bone. Based on his experience as a police
officer, Detective Hobson testified that brass knuckles are capable of causing both
serious bodily injury and death.
While Chavira’s testimony contradicted much of Rios’ and the
complainant’s accounts, the jury was entitled to assess the credibility of the
witnesses and reconcile any conflicts in their testimony. See Montgomery, 369
S.W.3d at 192. After reviewing the record evidence regarding appellant’s use of
brass knuckles, we conclude it is sufficient to support the jury’s finding that brass
knuckles were a deadly weapon under the facts of this case. See McCain, 22
S.W.3d at 503 (“[T]he mere carrying of a butcher knife during a violent attack . . .
was legally sufficient for a factfinder to conclude that the ‘intended use’ for the
knife was that it be capable of causing death or serious bodily injury.”).
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Viewing the evidence in the light most favorable to the verdict, we conclude
the evidence was sufficient to support appellant’s conviction for aggravated
assault. See Tex. Penal Code § 22.02(a)(2); Anderson, 416 S.W.3d at 888. We
overrule appellant’s first issue.
II. The trial court’s jury charge was not erroneous.
Appellant’s second and third issues challenge the adequacy of the jury
charge. In her second issue, appellant argues the jury charge was erroneous
because it did not define serious bodily injury. Appellant’s third issue argues the
jury charge was erroneous because it did not require the jury to determine if brass
knuckles were used as a deadly weapon.
A. Standard of review and applicable law
In each case, the trial judge must “deliver to the jury . . . a written charge
distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. art.
36.14. We review alleged charge error by considering two questions: (1) whether
error existed in the charge; and (2) whether sufficient harm resulted from the error
to compel reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
An analysis of harm suffered is unnecessary when an appellate court has
determined that there was no error in the jury charge. Posey v. State, 966 S.W.2d
57, 60 (Tex. Crim. App. 1998).
A charge that adequately protects an accused’s rights, although not applying
the law to the facts as preferred by her, is not erroneous if the jury could have
acquitted her under it, had they believed her version of the facts. Margraves v.
State, 56 S.W.3d 673, 681 (Tex. App.—Houston [14th Dist.] 2001, no pet.). In
construing a jury charge, we examine the charge as a whole rather than as a series
of isolated and unrelated statements. Vasquez v. State, 389 S.W.3d 361, 366 (Tex.
Crim. App. 2012). A jury charge that tracks the language of a particular statute is a
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proper charge on the statutory issue. Margraves, 56 S.W.3d at 681. When a
statute provides alternative means of committing an element of an offense and the
indictment alleges only one of these methods, the applicable law to be included in
the jury charge is limited to the method alleged in the indictment. Uddin v. State,
503 S.W.3d 710, 716 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see Curry
v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000).
If a jury charge is erroneous, the harm analysis hinges upon whether the
defendant objected to the charge. See Marshall, 479 S.W.3d at 843. If a charge is
not objected to in the trial court, we will not reverse unless the error resulted in
egregious harm such that the defendant was denied a “fair and impartial trial.”
Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)); see also Tex.
Code Crim. Proc. art. 36.19. Egregious harm is a difficult standard to prove and
must be determined on a case-by-case basis. Hutch v. State, 922 S.W.2d 166, 171
(Tex. Crim. App. 1996). Under Almanza, the record must show that the charge
error caused the defendant actual, rather than merely theoretical, harm. Ngo, 175
S.W.3d at 750.
B. The trial court’s jury charge properly instructed the jury on the
applicable law.
An assault is heightened to aggravated assault if the person “causes serious
bodily injury to another . . . or uses or exhibits a deadly weapon during the
commission of the assault.” Tex. Penal Code § 22.02(a) (emphasis added).
Because the statute alleges alternative methods to constitute aggravated assault, the
trial court was bound to include only the method alleged in the indictment. Uddin,
503 S.W.3d at 716. Appellant was indicted for causing bodily injury by striking
the complainant in the face and “[using and exhibiting] a deadly weapon, namely a
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brass knuckles.” The application section of the jury charge accurately applied the
law to the facts as alleged in the indictment, and instructed the jury:
. . . if you find from the evidence beyond a reasonable doubt that on or
about the 16th day of April, 2017, in Harris County, Texas, the
[appellant], did then and there unlawfully, intentionally, knowingly
cause bodily injury to [complainant], by striking [complainant] in the
face, and the [appellant] used or exhibited a deadly weapon, namely a
brass knuckles, then you will find the [appellant] guilty of aggravated
assault, as charged in the indictment.
Unless you so find from the evidence beyond a reasonable doubt, or if
you have a reasonable doubt thereof, you will acquit the [appellant]
and say by your verdict “Not Guilty.”
Appellant alleges the omission of a “serious bodily injury” definition from
the jury charge constituted error because “whether the brass knuckles caused
serious bodily injury is crucial to a determination of whether their use or intended
use was to cause serious bodily injury or death.”1 We disagree. The use of a
“deadly weapon,” rather than appellant causing “serious bodily injury,” was the
relevant aggravating element alleged in the indictment. As such, the State was not
required to prove serious bodily injury. Uddin, 503 S.W.3d at 716. The definition
of serious bodily injury would only be relevant to further contextualize the deadly
weapon definition, which was properly included in the charge as “anything that in
the manner of its use or intended use is capable of causing death or serious bodily
injury.” See Tex. Penal Code § 1.07(a)(17)(B). This additional definition was not
necessary because the jury heard Detective Hobson’s testimony that brass knuckles
1
Appellant relies on Davis v. State for this proposition, asserting that the facts are
“remarkably similar” to those of the present case. 533 S.W.3d 498, 509 (Tex. App.––Corpus
Christi 2017, pet. ref’d). Davis, however, discusses the circumstances that govern when hands
may be considered deadly weapons. Id. at 508. Because hands are often used in cases of assault,
whether they constitute a deadly weapon requires a unique analysis which is limited to cases
where those facts are implicated. See id. For this reason, a Davis-analysis does not apply in the
present case.
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were capable of causing death and serious bodily injury, and it was permitted to
draw its own inferences as to brass knuckles’ capability of causing harm based on
the facts and the weight of evidence presented at trial. Thus, the omission of a
“serious bodily injury” definition from the charge did not constitute error.
Appellant’s third issue contains two separate arguments. Appellant first
contends the jury charge was erroneous because it “fails to include the McCain-
Flores-Davis analysis that when an object is not a deadly weapon per se, the State
must prove beyond a reasonable doubt that it was used as a deadly weapon, that is,
it was used in a manner to cause death or serious bodily injury.” This is a
misstatement of the relevant law. It is well settled that a jury charge that tracks the
language of a statute is a proper charge on the statutory issue. E.g., Riddle v. State,
888 S.W.2d 1, 8 (Tex. Crim. App. 1994). Here, the statute provides that a deadly
weapon must only be capable of causing death or serious bodily in the manner of
its use or intended use; thus, an object’s deadly weapon determination does not
hinge upon whether it was used to cause death or serious bodily injury. See Tex.
Penal Code § 1.07(a)(17)(B). Further, it is “generally held that, if a jury-charge
instruction is not derived from the [penal] code it is not applicable law under art.
36.14” of the Code of Criminal Procedure. Kirsch v. State, 357 S.W.3d 645, 651
(Tex. Crim. App. 2012) (internal quotation marks omitted). As such, appellant was
not entitled to an instruction derived from case-law because it may constitute an
improper comment on the weight of the evidence. Id.Appellant further asserts that “the application paragraph specifically said
brass knuckles were a deadly weapon,” removing from the jury’s consideration
whether the brass knuckles were capable of causing serious bodily injury or death.
This assertion fails to acknowledge the abstract portion of the jury charge, which
sets forth the applicable statutory provisions for aggravated assault and the relevant
definitions that clarify the law. Tex. Penal Code §§ 1.07(a), 22.01(a)(1),
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22.02(a)(2). The application paragraph of the charge leads with conditional
language, authorizing a conviction only “if” the jury finds “from the evidence
beyond a reasonable doubt that” appellant committed assault by striking
complainant in the face, “and the defendant used or exhibited a deadly weapon,
namely a brass knuckles.” The phrase “a deadly weapon, namely a brass
knuckles” identifies brass knuckles as the proposed deadly weapon, and properly
restricts the jury’s consideration only to the use of brass knuckles, the sole
instrument alleged in the indictment. Additionally, this phrasing links back to the
abstract portion of the charge, which outlines the circumstances that govern an
object’s deadly-weapon status. Finally, the conclusion of the application
paragraph advises the jury that it must acquit appellant if it entertains a reasonable
doubt as to any of the required elements of the crime. Thus, the charge accurately
defined the applicable statutory law, and authorized the jury to make its own
findings based on the weight of the evidence.
Viewing the evidence in the light most favorable to the verdict, we conclude
the jury charge properly applied the relevant law to the facts and was not
erroneous. See Margraves, 56 S.W.3d at 681. As such, a harm analysis is not
necessary. Posey, 966 S.W.2d at 60. We overrule appellant’s second and third
issues.
III. Appellant was not deprived of a jury trial.
Appellant’s fourth and fifth issues assert that she was deprived of a jury trial
guaranteed by the Texas and United States Constitutions because the charge did
not instruct the jury to determine whether brass knuckles were a deadly weapon.
See U.S. Const. amend. VI; Tex. Const. art. I, § 10. We have already determined
that the jury charge was proper and overruled appellant’s contention that the jury
was not required to make a finding on this issue. Thus, our previous
determinations dispose of these issues. We overrule appellant’s fourth and fifth
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issues.
CONCLUSION
Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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