JOSHUA WAYNE JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as Modified; Opinion Filed April 27, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01135-CR
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JOSHUA WAYNE JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-81140-06
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OPINION
Before Justices Wright, Richter, and Lang
Opinion By Justice Lang
        A jury convicted Joshua Wayne Jones of aggravated assault on a public servant, made an affirmative deadly weapon finding, and assessed punishment at sixty years' imprisonment and a $10,000 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
 
        On April 17, 2006, McKinney police officer Russel May responded to a 911 call about an assault at the Manor House apartment complex. May was given the suspect's name, description, and a license plate number of the vehicle in which the suspect was riding. May arrived at the complex within two minutes, pulling up to the front gate at about 7:00 p.m. The suspect vehicle was waiting for the gate to open. May activated his flashing lights, then approached the vehicle. Appellant, who sat in the passenger seat, matched the suspect's description. May ordered appellant and the driver to put their hands up. Appellant immediately began being “verbally abusive.” May ordered appellant to get out of the car. As May tried to perform a safety pat down for weapons, appellant hit May in the left side of his head with a closed fist. May testified he was “temporarily dazed and could not see” for a few moments. Appellant continued hitting May, tried to pull May to the ground, threw May against the hood of the patrol car, and hit May in the head and back of the neck repeatedly. During the assault, appellant said, “[y]ou ain't shit and I'm fixing to do you.” May testified some individuals on the streets use the phrase “I'm fixing to do you” to indicate they intended to kill a person. After appellant slammed May against the patrol car, a resident of the complex came and pulled appellant away from May. By that time, another officer arrived and subdued appellant at gunpoint.
        May testified the left side of his face and back of his neck were swollen, there were knots and bruises on his head and shoulders, and he was bleeding from cuts on his head. May was transported by ambulance to a hospital emergency room, where he was treated and released to return to work that day. May testified his cheek bone and eye areas turned black three days later, he suffered from constant pain and headaches in his neck, head, and shoulders, was eventually sent to an orthopedic specialist for ten weeks of care, and was placed on “light duty” for seven weeks. May testified his patrol car's video camera recorded the assault, as did a surveillance camera mounted at the apartment complex. The jury was shown the video from the patrol car's camera and the videotape from the apartment complex showing activity at the front gate and the assault.
        Narvel Luke, the mother of appellant's son, testified she lives at the Manor House apartments. In March 2006, appellant called her from Colorado and said he wanted to come visit his son. When appellant arrived, Luke allowed him to stay in her apartment for two weeks because appellant did not have anywhere else to stay. Luke testified that on the evening of April 16, 2006, she told appellant he could “not stay at her apartment another night.” Luke said appellant's attitude had changed, he spent his time outside drinking with friends, and he constantly argued with her. Luke took back her key from appellant, then locked him outside that night. The next day, after she took her children to her mother's house, appellant called and said he wanted to get his belongings. Luke went back to her apartment and let appellant inside. Appellant argued with Luke as he gathered his belongings. When appellant went to leave, he turned around at the front door and said, “[f]uck this, I am going to beat your ass now.” Appellant “punched” Luke in the face with a closed fist. Luke tried to get up, but appellant hit her again. Luke testified the second punch “slid off the side of my face.” Then, appellant put his forearm against Luke's neck, sending her to the floor again. Appellant held Luke by the neck with one hand as he prepared to hit her again. Luke kicked appellant, then ran out of the apartment. Luke called the police, giving them appellant's name, description, and the license place number of the car appellant got into. Luke testified she saw a police car stop at the front gate as the car appellant was about to leave the complex. Luke watched from about twenty-five feet away. Luke testified that after an officer told appellant to put his hands on top of his head, appellant turned around and started fighting the officer. Luke testified several people who were outside told appellant to stop. Luke's uncle ran to the officer and pulled appellant away, then a second officer arrived with his gun drawn. Appellant said, “[s]hoot me, hell is the only place I ain't seen.”
        Dr. William Rohr, the Collin County medical examiner, testified as an expert on serious bodily injuries and deadly weapons. An individual's hands can be used as deadly weapons in the manner of their use because hands are capable of causing serious bodily injury or death. After reviewing the videos taken from the patrol car's camera and the surveillance camera at the complex, Rohr testified that by the manner of their intended use, appellant's fists were used as deadly weapons in the assault because they were capable of causing death or serious bodily injury. The videos showed appellant hitting May repeatedly in the head and neck. According to Rohr, a blow to the head which turns the head sharply to one angle could possibly cause a rupture to the vertebral artery. Rupture of this artery has been known to be an immediate cause of death in individuals. When a person is being hit in the head with closed fists, that person could suffer possible serious injuries, including subdural hematomas, retinal detachments, orbital fractures, and nerve damage to the neck and head. Rohr testified he did not know what specific injuries May had sustained during the assault because he had not reviewed May's medical records. After Rohr looked over May's medical records during the trial, he testified neither the nurse nor doctor who treated May on the day of the assault stated there were any lacerations, and their description of the injury May sustained said “facial contusion,” which is a bruise.
        Appellant did not testify or present any evidence during the guilt/innocence phase of the trial.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The fact- finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        To obtain a conviction for aggravated assault on a public servant, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingy, or recklessly caused bodily injury to Russel May, a person appellant knew was a public servant lawfully discharging an official duty, and appellant used or exhibited a deadly weapon, his hands, during commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2006). “Bodily injury” means physical pain, illness, or any impairment of physical condition. See id. § 1.07(a)(8). A “deadly weapon” is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient to support the jury's finding that his hands were used as deadly weapons during the assault. Appellant asserts that because nothing showed the size or condition of his hands, or whether he had any special training or experience fighting, the evidence was insufficient. The State responds the evidence is legally and factually sufficient to prove appellant used his hands as deadly weapons during the assault.
        The jury was shown videos which captured the assault from two different angles. The videos show appellant repeatedly hitting May with his closed fists in the head, neck, and face. Appellant also slammed May's body and head into the hood of the patrol car. May testified he suffered swelling and pain to his face, head, neck, and shoulders, and had knots, bruises, and lacerations from the assault. Rohr, the medical examiner, testified that in the manner of their use, appellant's fists were used as deadly weapons during the assault on May because they were capable of causing serious bodily injury or death. Rohr also testified that May's medical records of treatment after the assault did not state any lacerations were found and the injury sustained was a facial contusion, which is bruising.
        It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury is in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction for aggravated assault with a deadly weapon. See Watson, 204 S.W.3d at 415; Lane, 151 S.W.3d at 191-92. We overrule appellant's points of error.
Judgment Error
 
        We note that in its verdict, the jury assessed a $10,000 fine. However, the trial court's judgment recites the fine as “none.” Thus, the trial court's judgment is incorrect. On our own motion, we modify the trial court's judgment to show the fine is $10,000. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, the trial court's judgment is affirmed.
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061135f.u05