JAVIER MARTINEZ v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

NUMBER 13-02-306-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI-EDINBURG

JAVIER MARTINEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347TH District Court

of Nueces County, Texas.

OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Chief Justice Rogelio Valdez

Appellant, Javier Martinez, was convicted by a jury of aggravated assault with a deadly weapon and sentenced to fourteen years of incarceration. Appellant attacks the judgment by four issues, arguing that the jury s verdict was inconsistent, the evidence was legally and factually insufficient to support the deadly weapon finding, and he received ineffective assistance of counsel. We affirm.

Background

On May 31, 2000, Davie Ellis was at a Circle K convenience store in Corpus Christi, Texas. He was extremely intoxicated, and was asking patrons for change. Appellant and his girlfriend, Stephanie Stanfield, arrived at the Circle K. Stanfield entered the store to make a purchase, and appellant waited in their vehicle. Ellis verbally accosted Stanfield when she exited the store.

Stanfield returned to her vehicle and told appellant about Ellis s remarks. Appellant left his car and approached Ellis, who was sitting on the sidewalk. Appellant yelled at Ellis and hit him. Ellis did not return the blow, but fell over onto his side. Appellant continued hitting Ellis until two bystanders stopped him. Appellant returned to Stanfield s car, and Stanfield had begun to drive away when appellant again left the car, returned to Ellis, and began repeatedly kicking him, with a football kick, stomping him, and stepping on him. Bystanders again pulled appellant away from Ellis. According to at least one witness, appellant may have attacked Ellis yet a third time. During each of the attacks, Ellis remained in either a prone or sitting position and never returned a blow.

Appellant gave a statement to the police in which he contended that Ellis was verbally abusive to Stanfield. When he approached Ellis about it, Ellis grabbed and pulled him, and they began hitting each other. Appellant kicked him, then walked away, but the homeless guy was still talking shit, so appellant kicked him again in the chest. Appellant returned to his car and left. According to appellant, Ellis was getting up from the pavement when appellant left the scene.

Appellant was indicted for murder. A jury convicted him of the lesser-included offense of aggravated assault with an affirmative finding that he had used a deadly weapon. The jury assessed punishment at fourteen years of incarceration, and the trial court entered judgment in accordance with the verdict.

Appellant raises four issues on appeal. In his first issue, appellant contends that the jury s verdict was inconsistent and unsupported by the evidence. In his second and third issues, appellant argues that the evidence was legally and factually insufficient to support a deadly weapon finding. Finally, in his fourth issue, appellant contends that his trial counsel was ineffective.

Standard of Review

A legal sufficiency review calls upon the reviewing court to view the relevant 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 v. Virginia, 443 U.S. 307, 318-19 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). In a legal sufficiency review, the fact finder remains the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The appellate court serves to ensure the rationality of the fact finder, but does not disregard, realign, or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

A factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. See Johnson, 23 S.W.3d at 7 (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996)). In conducting a factual sufficiency review, the reviewing court asks whether a neutral review of all of the evidence, both for and against the jury s finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. at 11. We may disagree with the fact finder s determination only when the record indicates such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded to the fact finder s determinations, particularly those findings concerning the weight and credibility of the evidence. Id. (citing Jones v. State, 944 S.W.2d 642, 648-49 (Tex. Crim. App. 1996)).

Claim of Inconsistent Verdicts

In his first issue, appellant claims that the jury s finding that appellant recklessly committed aggravated assault and the jury s finding that appellant used a deadly weapon are inconsistent. According to appellant, if he was acting recklessly, then he could not have used his hands and feet in a manner intending to cause death or great bodily injury. Appellant s argument focuses on the requisite mental states for the offense and the deadly weapon finding.

A person commits an assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. 22.01(a)(1) (Vernon 1994 & Supp. 2003). An assault becomes aggravated if the actor causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault. In the instant case, the jury found that appellant acted recklessly. Tex. Pen. Code Ann. 22.02(a)(1) (Vernon 1994 & Supp. 2003).

A person acts recklessly when he is:

aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor s standpoint.

Tex. Pen. Code Ann. 6.03(c) (Vernon 1994).

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. Pen. Code Ann. 1.07(a)(17)(B) (Vernon 1994). The penal code does not require a defendant to actually intend to cause death or serious bodily injury; rather, an object is a deadly weapon if a defendant intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Brown v. State, 91 S.W.3d 353, 357 (Tex. App. Eastland 2002, no pet.). Therefore, the jury s finding that appellant acted recklessly in committing the aggravated assault is not inconsistent with the jury s finding that appellant intended to use his hands or feet in a manner in which they would be capable of causing death or serious bodily injury. See McCain, 22 S.W.3d at 503. We overrule appellant s first issue.

Legal and Factual Sufficiency of the Deadly Weapon Finding

In his second and third issues, appellant contends that the evidence is legally and factually insufficient to show that he utilized a deadly weapon. Appellant suggests that there was no evidence to suggest that by training or martial arts skills the appellant s hands and feet had somehow become deadly weapons.

Although a hand is not a deadly weapon per se, it can become a deadly weapon if evidence in the case shows that, in the manner of its use, the hand was capable of causing death or serious bodily injury. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983) (hands and fists used to choke victim to death); Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App. Austin 1998, no pet.) (inmate struck guard with fists causing serious bodily injury); Judd v. State, 923 S.W.2d 135, 140 (Tex. App. Forth Worth 1996, pet. ref d) (hands used to choke victim); Clark v. State, 886 S.W.2d 844, 845 (Tex. App. Eastland 1994, no pet.) (hands used to cause bodily injury to infant); Cooper v. State, 773 S.W.2d 749, 750 (Tex. App. Corpus Christi 1989, no pet.) (defendant used hands as a deadly weapon by throwing infant in the air and dropping infant to the floor); Johnson v. State, 770 S.W.2d 72, 74 (Tex. App. Texarkana 1989), aff d, 815 S.W.2d 707 (Tex. Crim. App. 1991) (defendant used hands and feet to beat and kick victim to death); Kirkpatrick v. State, 747 S.W.2d 521, 524 (Tex. App. Fort Worth 1988, pet. ref d) (hands used to strangle victim).

Dr. Lloyd White, the medical examiner who performed an autopsy on the decedent, testified that Ellis died from an internal hemorrhage due to a lacerated spleen caused by blunt trauma to the chest and abdomen. As part of the investigation, Dr. White was informed that there were witnesses that saw someone actually kick the decedent in the area of the trunk which would certainly explain an injury of this type to the spleen. White testified that, in his experience and training, it is possible to rupture the spleen by kicking someone in the back or side. According to White, kicking someone in the back or side with force was both dangerous to human life and could cause serious bodily injury. Upon cross examination, White conceded that it was possible that laceration to the spleen could be caused by falling onto a hard surface, such as a curb or the edge of a table.

Given the eye-witness testimony and the expert testimony about causation, the evidence is legally sufficient to support the verdict. Any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson, 23 S.W.3d at 7. Moreover, a neutral review of all of the evidence, both for and against the jury s finding, does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. Thus, the evidence is also factually sufficient to support the verdict. We overrule appellant s second and third issues.

Ineffective Assistance of Counsel

In his final issue, appellant contends that trial counsel was ineffective for failing to object to the deadly weapon charge or to the inconsistent verdicts. Strickland v. Washington, 466 U.S. 668 (1984), sets forth the proper standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Strickland requires a two-part inquiry. The defendant must first show that counsel s performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, the defendant must further prove that there is a reasonable probability that, but for counsel s deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id.; Cantu v. State, 46 S.W.3d 421, 424 (Tex. App. Corpus Christi 2001, no pet.). An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 812; Castellano v. State, 49 S.W.3d 566, 573 (Tex. App. Corpus Christi 2001, pet. ref d).

The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Gutierrez v. State, 8 S.W.3d 739, 749 (Tex. App. Austin 1999, no pet.). To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

We have previously concluded that the verdicts were not inconsistent, and that the submission of the deadly weapon issue was supported by legally and factually sufficient evidence, thus counsel s failure to object on these grounds did not constitute ineffective assistance of counsel. Moreover, the record fails to contain any information regarding trial counsel s rationale for failing to object, thus, the record does not support a claim of ineffective assistance of counsel. See id. We overrule appellant s fourth issue.

Having overruled each of appellant s issues on appeal, the judgment of the trial court is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 4th day of December, 2003.