Marin, Jesus Mendoza v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JESUS MENDOZA MARIN, ) No. 08-00-00344-CR

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Appellant, ) Appeal from

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v. ) 243rd District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20000D00493)

O P I N I O N

Jesus Mendoza Marin appeals his conviction for aggravated assault with a deadly weapon on two counts. Following a trial and punishment phase by jury, Appellant was assessed five years= probation. On appeal, he contends that the evidence is legally insufficient to prove that he used or exhibited a deadly weapon. We affirm.

FACTUAL SUMMARY

On the afternoon of November 17, 1999, Hermelinda Enriquez was in the kitchen of her home at 710 South Mesa in El Paso, Texas when she heard a noise coming from the bedroom window. The noise sounded like someone was pulling on the bars of the window. Enriquez picked up her infant granddaughter and went outside to take a look. She saw a man pulling on the window bars and asked him what was happening. Enriquez identified the man as Appellant. Appellant let go of the bars, bent over to look for something, and then began using foul language. He picked up a water meter cover and threw it at Enriquez. Enriquez described the cover as Around@ and Aheavy,@ with a thickness of about three-quarters of an inch. She testified that the water meter cover did not hit her but Awent by real close.@ Appellant stood four or five meters away from her when he threw the object, but Enriquez did not see where it first landed before it rolled by her. Enriquez began walking away quickly when the man picked up a bottle and threw it at her, almost touching her back. Enriquez did not see him throw the bottle, but watched it come down and shatter on the ground. The bottle was quart-sized. She felt scared and Appellant continued using foul language as he approached her. Enriquez then ran to her sister=s home nearby. She saw her niece, Alejandra Caldera, come out of the home and told her to call the police.

Caldera observed Appellant throw the water meter cover and a quart-sized beer bottle directly at her aunt. She described the water meter cover as Athick@ and explained that Appellant had used both hands to throw it. She also testified that Appellant threw the beer bottle with an overhand motion and it traveled as high as her head. It appeared to Caldera that Appellant intentionally threw the cover and the bottle at Enriquez. Caldera observed that Enriquez was very frightened as she approached the house.

Officer Moises David Avila arrived on the scene. Officer Avila obtained a description of Appellant and began to search for him. He was apprehended two blocks from the incident. When Officer Avila attempted to detain him, Appellant became very uncomfortable and agitated. After a struggle, Appellant was taken into custody.

After the State rested at trial, Appellant unsuccessfully moved for a directed verdict. The jury found him guilty of two counts of aggravated assault with a deadly weapon.[1] Punishment was assessed at five years in the Institutional Division of the Texas Department of Criminal Justice probated for five years of community supervision. This appeal follows.

LEGAL SUFFICIENCY

In his sole point of error, Appellant claims the evidence is legally insufficient to prove that the water meter and bottle he used against the victim were deadly weapons.

Standard of Review

In determining the legal sufficiency of the evidence used to support a criminal conviction, we view 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 offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Geesav. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve conflicts of fact or assign credibility to witnesses, as it is the function of the trier of fact to accept or reject any, part, or all of any witness=s testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d). We determine only if the explicit and implicit findings of the trier of fact are rational by viewing all the evidence in a light most favorable to the verdict. See Lucero, 915 S.W.2d at 614. Any inconsistencies in the evidence are resolved in favor of the verdict. Id. If we sustain a legal sufficiency challenge, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

Deadly Weapon

A deadly weapon is defined in the Texas Penal Code as Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ Tex.Pen.CodeAnn. ' 1.07(a)(17)(B)(Vernon 1994). The record reveals that Appellant used a glass bottle and a water meter cover during the commission of the offense. Appellant claims that the State failed to prove that the two weapons were capable of causing death or serious bodily injury. We disagree. The evidence was sufficient to support a rational jury=s finding that Appellant used a weapon in the commission of the offense of aggravated assault.[2]

Items that are not deadly weapons per se may be deemed deadly weapons by reason of their use or intended use. Hill v. State, 913 S.W.2d 581, 582 (Tex.Crim.App. 1996). Their use or intended use must be capable of causing death or serious bodily injury. Id. This determination is made on a case by case basis. To meet its burden, the State need not have introduced the objects into evidence. See Jackson v. State, 913 S.W.2d 695, 698 (Tex.App.--Texarkana 1995, no pet.), citing Victor v. State, 874 S.W.2d 748, 751 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d). Moreover, the victim need not have been struck or wounded to justify an affirmative finding. See Dominique v. State, 598 S.W.2d 285, 286 (Tex.Crim.App. 1980). When serious bodily injury is not shown, the court must look to the manner of the weapon=s use or intended use, its size and shape, and its capacity to produce serious bodily injury to determine whether it was a deadly weapon. See Hicks v. State, 837 S.W.2d 686, 690 (Tex.App.--Houston [1st Dist.] 1992, no pet.)(where court determined that knife used in offense was deadly weapon).

Analysis of the Evidence

The testimony by the victim and Caldera was sufficient to establish that Appellant had a water meter cover and a glass bottle in his possession and used them with intent to cause bodily injury. He threw the objects at Enriquez, who stood a mere four or five meters away from him. The water meter cover was described as Around,@ Aheavy,@ and three-quarters of an inch thick. The glass bottle was described as quart-sized. Whether Appellant threw the objects in an overhand or underhand motion, they were thrown through the air in Enriquez=s direction, causing her to become afraid. Objects of this size are capable of causing serious bodily injury when thrown in the air directly at another individual. Appellant claims that there was no evidence that either the water meter cover or the bottle actually touched the victim or that she feared for her life. The State was not required to demonstrate that the objects struck Enriquez and there was sufficient evidence that she feared for her life. Enriquez testified she was afraid and that Appellant used foul language as he approached her. She began to run away. Caldera noticed that Enriquez looked very frightened as she approached. While Appellant points to some of the inconsistencies in the victim=s description of whether or not she saw Appellant throw the water meter or the glass bottle, it was for the trier of fact to decide whether the victim=s testimony was credible. Accordingly, we conclude the evidence was legally sufficient to support the trial court=s judgment. Appellant=s sole point is overruled and the judgment of the trial court is affirmed.

August 15, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] The indictment states in relevant part:

Jesus Mendoza Marin, hereinafter referred to as Defendant,

PARAGRAPH A

did then and there intentionally and knowingly threaten HERMELINDA ENRIQUEZ with imminent bodily injury and did then and there use and exhibit a deadly weapon during the commission of said assault, to-wit: a water meter cover, that in the manner of its use and intended use was capable of causing death and serious bodily injury,

And it is further presented that the said Defendant used and exhibited a deadly weapon, to-wit: a water meter cover, during the commission of and immediate flight from said offense,

PARAGRAPH B

did then and there intentionally and knowingly threaten HERMELINDA ENRIQUEZ with imminent bodily injury and did then and there use and exhibit a deadly weapon during the commission of said assault, to-wit: a glass bottle, that in the manner of its use and intended use was capable of causing death and serious bodily injury,

And it is further presented that the said Defendant used and exhibited a deadly weapon, to-wit: a glass bottle, during the commission of and immediate flight from said offense,

AGAINST THE PEACE AND DIGNITY OF THE STATE.

[2] The jury instruction provided:

Our law provides that a person commits an assault if the person intentionally or knowingly threatens another with imminent bodily injury, including the person=s spouse.

A person commits AGGRAVATED ASSAULT if the person commits an assault, as defined above, and uses or exhibits a deadly weapon during the commission of the assault.

The term >bodily injury= means physical pain, illness, or any impairment of physical condition.

The term >serious bodily injury= means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

The term Adeadly weapon@ means:

(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.