ROBERT ALLEN PETERSON,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

    
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00354-CR
ROBERT ALLEN PETERSON,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES STEWART, BAKER, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
AUGUST 3, 1989
        A jury convicted Robert Allen Peterson of murder and assessed punishment at life imprisonment. In three points of error, appellant contends that the evidence is insufficient because: (1) the State failed to prove that appellant committed a criminal act; (2) the State failed to disprove the exculpatory statements included in the written statement that was offered by the State; and (3) the evidence failed to prove that appellant caused the death of the individual with a deadly weapon. We overrule all three points of error and affirm the conviction.
        On October 6, 1987, the deceased, Cynthia Camacho was at a night club in Oak Cliff shooting pool and talking with friends. A friend of hers, Thomas Martin Lopez, was a disc jockey at the club. At about 1:30 a.m. on October 7th, he saw her leave the club as though she was upset. He followed her in his car as she walked along the street because he was "worried about her" and he overtook her about a block and a half from the club offering her a ride, but she did not respond. Lopez then saw appellant sitting in a nearby vehicle and heard him yell to the deceased "Hey, you, come here." Due to the traffic on the street, Lopez was required to circle the block, and when he returned, the deceased, appellant and appellant's car were gone.
        At 7:45 a.m. that same morning, a mower operator on Interstate 30 near Loop 12 discovered Ms. Camacho's body lying near a fence. When the police learned appellant had apparently left with the deceased, he was questioned the next day. Subsequently, a warrant was issued for appellant's arrest. When he was approached by officers, he fled, but he was caught and arrested. During the trial, appellant attempted to escape by fleeing from the courtroom but was apprehended.
        Appellant gave a voluntary statement in which he admitted that he was with the deceased at the time of her death. Appellant explained that the deceased incurred her injuries when she fell out of his car while they were driving down the highway. He said the deceased hit her head on a guardrail and he then pulled her back into the car. He later became afraid and pushed her body out of his car on the roadside.
        A witness at trial testified that before appellant was arrested, appellant had sold his car to him for an abnormally low price because he said he "was in some trouble and needed the money to get out of town." Investigation of appellant's car produced no evidence of blood stains or damage to the car door.
        The deceased suffered at least seven different wounds to the head, as well as other bruises and abrasions to the body. The medical examiner who performed the autopsy on her body testified that these injuries could not have been caused in the manner described by appellant in his statement. The examiner said the deceased's death was caused by a combination of blunt and sharp force injuries to the head by what he termed a "deadly weapon." He testified that the blows to the deceased's head would have had to have been inflicted by someone striking her with an object with both blunt and sharp edges. He further testified that additional injuries to the deceased's body, such as abrasions on her arms, indicated that a struggle had taken place. Three of the deceased's teeth were found knocked out of her mouth near her body where it was found by the mower. No weapons were found at the scene.
        In his first point of error appellant complains that the evidence was insufficient to support the conviction because the State failed to prove that appellant committed a criminal act. The standard for appellate review of the sufficiency of evidence in both direct and circumstantial cases is, whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Garrett v. State, 682 S.W.2d 301, 304 (Tex. Crim. App. 1984) cert. denied 471 U.S. 1009, 105 S. Ct. 1876, 85 L. Ed. 2d 168 (1985); Shead v. State, 746 S.W.2d 19, 20 (Tex. App.--Dallas 1988, pet. ref'd). A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every reasonable hypothesis except that of the guilt of the accused. Russel v. State, 665 S.W.2d 771, 775-76 (Tex. Crim. App. 1983); Randall v. State, 735 S.W.2d 678, 680 (Tex. App.--Dallas 1987, no pet.). However, every fact need not point directly and independently to the defendant's guilt. It is enough if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances. Russel at 776. In addition, the jury is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by state or defense witnesses. Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); Young v. State, 752 S.W.2d 137, 140 (Tex. App.--Dallas 1980, pet. ref'd).
        The State presented a substantial amount of incriminating circumstantial evidence which, if believed by the jury, would support appellant's conviction. This evidence showed that shortly before the deceased's death, a witness saw appellant and heard him say to the deceased, "Hey, you, come here." The witness then circled the block and when he returned, both the deceased and appellant were gone. Appellant voluntarily submitted a written statement in which he admitted that he was with the deceased at the time of her death. Expert medical testimony by the examiner who performed the autopsy on the deceased's body was that the deceased's injuries could not possibly have happened as appellant claimed. The expert testified that the cause of death was a series of blunt and sharp force injuries to the head and that the other bruises and abrasions on the deceased's body indicated that a struggle had taken place. The expert characterized the death as a homicide. Physical evidence found in connection with the death was inconsistent with appellant's claim that the deceased hit her head on a guardrail. No blood was found in appellant's car and testimony established that there was no damage done to or malfunction with appellant's passenger-side car door. Additionally, three of the deceased's teeth were found knocked out of her head, near her body at the scene where the body was found which suggests that the body was not moved after the fatal blow. After the death but before his arrest, appellant sold his car at an abnormally low price to a witness who testified that appellant told him he "was in some kind of trouble and needed the money to get out of town." When police confronted appellant to arrest him, he fled from the arresting officers. Appellant also attempted to escape from the courtroom during his trial.
        We hold that in viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable doubt that appellant committed a criminal act. We overrule the first point of error.
        In point of error number two, appellant contends that the evidence is insufficient to support the conviction because the State failed to disprove appellant's exculpatory statements included in the written statement that was offered by the State. Appellant asserts that as a result, he is entitled to an acquittal. As authority, appellant relies on Dunn v. State, 721 S.W.2d 325, 331 (Tex. Crim. App. 1986). Dunn holds that "It is now axiomatic in our law that where the state puts in evidence the statements of the accused party which exculpate the accused, and does not directly or indirectly disprove them, the accused is entitled to an acquittal." Appellant fails to state the Dunn holding in its entirety. The court held further that, "before such rule may be invoked and applied to a case, it is necessary that the statement amount to an admission of guilt by the accused plus an assertion that would exculpate him." Dunn, 721 S.W.2d at 331. See also Simon v. State, 488 S.W.2d 439, 443 (Tex. Crim. App. 1972). In order to invoke the rule in Dunn, it must first be established that appellant admitted killing the deceased. See Stewart v. State, 703 S.W.2d 745, 749 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd).
        Appellant's written statement maintains that he did not kill her and that she was accidentally killed when she fell out of his car and hit her head on a guardrail. We hold that the appellant's written statement does not amount to an admission. The Dunn remedy is not available to him. Also, in our view, the State's evidence did in fact disprove appellant's alleged exculpatory statement. We overrule the second point of error.
        In his final point of error, appellant complains that the evidence is insufficient to prove that he caused the death of the deceased with a deadly weapon. The indictment alleged that the offense was committed with an unknown deadly weapon. Appellant contends that the State was required but failed to show that the unknown object used in the commission of the crime was a deadly weapon.
        Texas defines "deadly weapon" as:
 
 
    (A.) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B.) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
TEX. PENAL CODE ANN. § 1.07(a)(11) (Vernon 1974). In determining whether a weapon is deadly, all the facts of the case may be considered, including the shape and size of the weapon, its sharpness, its capacity to produce death or serious bodily injury, and the manner of its use. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); Compton v. State, 759 S.W.2d 503, 504 (Tex. App.--Dallas 1988, no pet.). Furthermore, the wounds inflicted on the injured are also a factor that is considered in determining the character of the weapon. Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978).
        In the present case, the medical examiner who performed the autopsy on the deceased's body testified that the deceased's wounds were of a nature that would have had to have been caused by a series of blows to the head with "an object that is blunt and heavy but has some partial edge to it." The examiner classified the object used to kill the deceased as a "deadly weapon." We hold that the object described by the medical examiner as being the murder weapon, could have been adapted for the purpose of inflicting death and was capable of causing death, thus fulfilling the definition of "deadly weapon" under either definition (A.) or (B.) of § 1.07(a)(11) of the Texas Penal Code. We hold that the evidence is sufficient to prove that appellant caused the death of the deceased with a deadly weapon. We overrule the third point of error and affirm the conviction.
 
 
                                                          
                                                          JOHN WHITTINGTON
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00354.F
 
 
File Date[01-02-89]
File Name[880354F]