William Glenn v. State of Texas--Appeal from Criminal District Court No. 1 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

William Glenn

Appellant

Vs. No. 11-01-00028-CR B Appeal from Dallas County

State of Texas

Appellee

Memorandum Opinion

After a nonjury trial, the trial court found that William Glenn was guilty of aggravated assault, that the two enhancement paragraphs were true, and that he had used his arm as a deadly weapon. The trial court sentenced appellant to confinement for life. We affirm the conviction.

The Indictment

The indictment charged that, on or about February 17, 2000, appellant did intentionally cause bodily injury to Katrina Coleman by choking her with his arm and that appellant Adid use and exhibit a deadly weapon to-wit: defendant=s arm, during the commission of the assault.@

Points of Error

Appellant presents two points of error. In the first point, he argues that the evidence is Alegally insufficient@ to prove the elements of the offense of aggravated assault. In the second point, he argues that the evidence is Alegally insufficient@ to prove the use of a deadly weapon.

Controlling Authority

The trial court in this case, as the finder of facts in a nonjury trial, was the sole judge of the weight of the evidence and of the credibility of the testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App.1992); DeBolt v. State, 604 S.W.2d 164, 167 (Tex.Cr.App.1980). The trial court was free to believe all or any part of the testimony of each of the witnesses, and this court is not authorized to disagree with the trial court=s findings unless necessary to prevent Aa manifest injustice.@ See, e.g., Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Cr.App.1997).

In reviewing the Alegal sufficiency@ of the evidence, we must look at the evidence Ain the light most favorable to the prosecution@ and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319 (1979); Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Cr.App.2000).

The definition of a Adeadly weapon@ in TEX. PENAL CODE ANN. ' 1.07(17)(B) (Vernon 1994) includes Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ (Emphasis added) See and compare McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App.2000); Turner v. State, 664 S.W.2d 86, 88-90 (Tex.Cr.App.1983). While an arm is not per se a deadly weapon, the fact finder may find that it was used as a deadly weapon if the evidence supports that finding. This court has affirmed a deadly weapon finding based upon a defendant=s use of his hands or feet in a manner capable of causing serious bodily injury. See Clark v. State, 886 S.W.2d 844, 845 (Tex.App. - Eastland 1994, no pet=n), which was cited and followed by Brooks v. State, 900 S.W.2d 468, 472 (Tex.App. - Texarkana 1995, no pet=n), where the court said:

To support a deadly weapon finding, the State must show only that the accused=s hands in the manner of their use were capable of causing death or serious bodily injury. It need not show that the hands actually did cause serious bodily injury. (Emphasis added; Citation omitted)

A Asimple@ assault becomes an Aaggravated assault@ if the assault causes serious bodily injury or if the aggressor Auses or exhibits a deadly weapon during the commission of the assault.@ See TEX. PENAL CODE ANN. '' 22.01 & 22.02 (Vernon 1994 & Supp. 2002). The State was not required to prove serious bodily injury when it proved that appellant used or exhibited a deadly weapon.

Relevant Evidence

There were only two witnesses during the guilt/innocent phase of trial.[1] The complainant was the first witness. She testified that appellant had been her Aboyfriend@ from July of 1999 until the assault in February of 2000. Appellant had moved into her apartment. The complainant worked at Parkland Hospital. On the day of the assault, she got home from work about 5:30 p.m. Appellant had been drinking gin with one of the neighbors. They were in the apartment, and the complainant went outside to visit with her friends. She visited with them until dark and then went back into her apartment. Appellant was in the apartment, and the neighbor had gone home. The complainant got a phone call, and appellant got mad when she would not let him help with her sister=s problem. Then appellant Agot upset@ and went to the AHispanic club across the street.@ The complainant said that, when appellant came back to the apartment, he was Adrunk and upset@ and that he was still Aarguing.@ They went upstairs and got ready for bed. Then appellant went downstairs. He was standing in the front door with the door open, and she went downstairs to get a drink of water. The complainant testified in relevant part as shown during her direct examination by the assistant district attorney:

Q: What are you doing when you=re walking towards the kitchen?

A: Saying my remarks back to him, whatever he said to me I replied back.

Q: Do you recall what you said?

A: No, I don=t. But whatever it was it caused him to get very upset.

Q: What do you mean very upset? What did he do?

A: He grabbed me from behind when I was walking in the kitchen. He started to strangle me with his arm around my neck.

* * *

Q: What was going through your mind at that point?

A: That I was going to die.

Q: Could you feel him applying more pressure to your neck?

A: Yes.

Q: What happened after that?

A: After he applied pressure to my neck I played like I had fainted so he could stop choking me, strangling me with his arm. So I played like I got limp, like I had already passed out.

* * *

Q: But you=re just pretending at that point.

A: Pretending.

Q: And then he starts choking you again.

A: Even more tighter. He never let me go, period. He never let me go. He was continuing to hold my neck. He knew I was playing like I was already passed out. I guess I moved, I don=t know what I did. I don=t know if I moved to let him know I was still alive. He got more tighter and tighter until I actually did pass out.

[Then a series of photographs were admitted into evidence. Those photographs were made by a police officer on the morning after the assault.]

The only other witness during the first phase of trial was Donald J. Smith, Jr., Ph.D., the research director for violence intervention and prevention at Parkland Hospital. Dr. Smith testified as an expert witness on family violence, and he testified that Athe arm can be used as a weapon to severely injure or fatally injure an individual.@ Dr. Smith reviewed the photographs of the complainant which were made on the morning after the assault. Relevant portions of his testimony read as shown:

Q: Could you just tell the Court what your findings are as far as looking at the pictures. Would that be a victim consistent with strangulation?

A: Yes, it would. Most notable are the blood that is - - blood that appears in the eyes. From the ruptured blood vessels within the eyes. Also if you look about the face you can see tiny blood vessels, the petechia that are about the cheeks and the eyes on the - - just underneath the eyes on both sides of the face. Looks like some around the chin as well. Possibly some on the chin as well.

Q: And what about if...a victim gets to the point of where they actually black out. Do you have an opinion how severe that strangulation could be?

A: The strangulation - - the victim will lose consciousness within about ten to fifteen seconds if the arteries are occluded completely at both arteries. If they are blocked.

Q: And again that can cause death.

A: Death usually results in anywhere from three to five minutes if the pressure is maintained to the neck.

Dr. Smith also testified that he had reviewed the hospital records on the complainant which were introduced into evidence, that he had personally interviewed the complainant, that the pictures showed the way the complainant looked when he interviewed her, and that her injuries were consistent with strangulation. Dr. Smith testified that, based upon what he saw Awith the blood in the eyes,@ he was impressed by the Aseverity of the attack involved here.@

Points of Error Nos. 1 and 2 are overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

May 30, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

McCall, J., and Dickenson, S.J.[2]

[1]We need not discuss evidence from the punishment phase of trial, but there were three other women who had lived with appellant and who testified as to other violent acts by appellant and to his threats to kill each of them.

[2]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.