Opinion
No. 07-16-00162-CR
01-29-2018
LEOVAN HERNANDEZ, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 213th District Court Tarrant County, Texas
Trial Court No. 1399899D; Honorable Louis E. Sturns, Presiding
MEMORANDUM OPINION
Before CAMPBELL, PIRTLE, and PARKER, JJ.
Following a plea of not guilty, Appellant, Leovan Hernandez, was convicted by a jury of aggravated assault against a security officer and sentenced to fifteen years confinement. The jury answered affirmatively to use of a deadly weapon, to-wit: a staple gun. Appellant timely filed notice of appeal. By two points of error, Appellant maintains the evidence is insufficient to support his conviction and contends the trial court abused its discretion in overruling his Rule 403 objection to a video of a portion of the incident as captured by a store surveillance camera. We affirm.
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). The offense is elevated to a first degree felony when committed against a security officer in the performance of his duties. Id. at § 22.02(b)(2)(D).
Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Second Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3.
BACKGROUND
While on duty as a uniformed security officer at a local grocery store, Jose Ventura asked a male in his early twenties to leave the store. The incident escalated and Ventura was forced to pepper spray the male. As the male was leaving the store, he threatened the security officer and yelled that he would return to kill him. Approximately ten minutes later, he returned and beat Ventura on the head numerous times with a staple gun. The male fled the store when police were called. Ventura was bleeding from his head and was transported to a hospital where he received twenty staples to close his wound.
Shortly after the incident, police were dispatched to a domestic disturbance call near the grocery store. Family members of the male who had been pepper-sprayed reported that the male was angry and causing a disturbance. Officers arrived to find the male, later identified as Appellant, walking down the street about to enter a vehicle when they detained him for public intoxication. At that time, the officers were unaware of the incident at the grocery store. Appellant was handcuffed and placed in the back of a patrol car.
Upon hearing sirens nearby and a dispatch reporting the assault on the security officer at the grocery store, the officers realized the male they detained matched the description of the suspect in the assault case. When the male in the back of the patrol car overheard the dispatch call, he admitted to the officers that he had assaulted the security officer for using pepper spray on him. The officers drove to the grocery store to investigate. They walked the path from the grocery store to Appellant's family's house searching along the way but did not find the staple gun. After investigating the incident, the officers arrested Appellant for aggravated assault with a deadly weapon. He was indicted for using or exhibiting a deadly weapon, i.e., the staple gun, during the assault which in the manner of its use or intended use was capable of causing death or serious bodily injury.
ISSUE ONE—SUFFICIENCY OF THE EVIDENCE
Relying on Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), and Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1966), which have long since been overruled as standards of review, Appellant contends the evidence is insufficient to support his conviction. We disagree.
The portion of Geesa requiring trial courts to instruct juries on the definition of "beyond a reasonable doubt" was overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000), and Clewis was overruled by Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
The only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under that standard, this court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 318-19).
The trier of fact is the sole judge of the credibility of the witnesses and the weight to be attached to their testimony. Jackson, 443 U.S. at 319. We permit a jury to draw multiple reasonable inferences from facts so long as each inference is supported by the evidence presented at trial and the inference is reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). In our review, we must evaluate all the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131, 120 S. Ct. 2008, 146 L. Ed. 2d 958 (2000). Furthermore, we must give deference to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
By his argument, Appellant does not dispute that he assaulted the security officer. Rather, he focuses his argument on the propriety of the deadly-weapon finding by arguing there is no evidence that he struck the security officer with a metal staple gun because one was not found and the video of the incident does not show the security officer being struck by an object.
An object can be a "deadly weapon" either by design or use. While a staple gun is not a deadly weapon by design, it can still be a deadly weapon if "in the manner of use or intended use," it is "capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17)(B). Serious bodily injury is defined as "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." Id. at § 1.07(a)(46). Even without expert testimony or introduction of the object itself, the "injuries suffered by the victim can themselves be a sufficient basis for inferring that a deadly weapon was used." Tucker v. State, 274 S.W.3d 688, 691-92 (Tex. Crim. App. 2008).
Each case must be examined on its own facts to determine whether a fact finder could reasonably conclude from the surrounding circumstances that the object used was a weapon capable of causing death or serious bodily injury. Brown v. State, 716 S.W.2d 939, 947 (Tex. Crim. App. 1986). In making that determination, factors to consider are (1) the words and other threatening actions by the defendant, including the defendant's proximity to the victim, (2) the weapon's ability to inflict serious bodily injury or death, including the size, shape, and sharpness of the weapon, and (3) the manner in which the defendant used the weapon. Johnson v. State, 509 S.W.3d 320, 323 (Tex. Crim. App. 2017). Objects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991).
Additionally, it is not necessary that the object alleged to be a deadly weapon be found. Standmire v. State, 475 S.W.3d 336, 340-41 (Tex. App.—Waco 2014, pet. ref'd) (finding that failure to find a razor used by one inmate to assault another inmate did not undermine deadly-weapon finding where photographs showed seriousness of victim's injuries and a video showed a large amount of blood loss). Neither is it necessary that the alleged weapon be introduced at trial. English v. State, 647 S.W.2d 667, 668 (Tex. Crim. App. 1983).
As to the identity of the object itself, two eyewitnesses testified that Appellant used a "staple gun" to assault the security officer. A former grocery store employee who witnessed the assault described the object used in the assault as "a stapler. It was silver. It looked like metal." She further described it as "pretty big," the kind used to hang boards unlike a normal desk stapler. She saw Appellant raise the staple gun over his head and use it to repeatedly strike the security officer on top of his head. After the assault, she described the security guard as "bleeding everywhere" and looking scared and in pain.
Additionally, a store customer testified he overheard a "loud commotion" and saw Appellant arguing with the security officer. He witnessed Appellant attack the security officer and was "a hundred percent sure" it was with "an industrial-size metal stapler." He added that it was a large metal staple gun probably about the size of his hand with a raised handle above it. He saw Appellant flee through the front doors of the store with the object in his hand. The witness testified to a photo of a similar staple gun that represented a fair and accurate description of the one he saw Appellant use.
One of the officers who arrested Appellant was questioned whether a staple gun could be used as a deadly weapon. He responded that based on the witnesses' observations of how Appellant used the staple gun to strike the security officer on the head and inflict injuries, a blunt object could "definitely be considered a deadly weapon." The officer also testified that any object could be a deadly weapon based on the manner of its use.
It was not vital to the State's case that the actual staple gun used in the assault be introduced into evidence or even be found. The witnesses' testimony described the instrument used as a "staple gun" and the severity of injuries sustained by Ventura warrant a "capable of causing death or serious bodily injury" finding. Ventura testified he went to the hospital where twenty staples were used to treat his head wounds. He also testified that Appellant threatened to kill him. The police officer's testimony confirmed that in the manner of its use, the staple gun was used as a deadly weapon. Accordingly, we find there is sufficient evidence to support the deadly-weapon finding. Issue one is overruled.
ISSUE TWO—OBJECTION TO STATE'S EXHIBIT 25
Appellant urges abuse of discretion by the trial court in overruling his objection to the admission of State's Exhibit 25, a cell phone video of a portion of the incident as captured by a surveillance camera in the store. Preservation of error is a systemic requirement on appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). If an issue is not properly preserved for appeal, a reviewing court should not address it. Id. Additionally, an issue on appeal "must comport with the objection made at trial" or review of the issue is waived. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (quoting Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (citing Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U. S. 828, 148 L. Ed. 2d 41, 121 S. Ct. 79 (2000)).
The store's co-manager testified that the surveillance cameras record onto a DVR but he was unable to get the video transferred to a thumb drive for the detective who requested it. Instead, he recorded a playback of the surveillance video of the incident on his cell phone and provided that recording to the detective.
During trial, the State sought to introduce State's Exhibit 25 through the testimony of the store co-manager who provided the cell phone video to the police. Defense counsel questioned him on voir dire, then objected on the basis that the cell phone video was not a business record. He also renewed an earlier objection in which he had complained that other exhibits did "not accurately depict the scene at the time." He also added that State's Exhibit 25 was "out of context, and it does not contain the true, accurate, complete recording." On appeal, however, Appellant argues the trial court abused its discretion in overruling his objection because a proper predicate was not laid, and the trial court failed to conduct a balancing test under Rule 403 of the Texas Rules of Evidence. Where the objection at trial does not comport with the issue raised on appeal, nothing has been preserved for review. TEX. R. APP. P. 33.1. Consequently, Appellant's argument was not preserved for review. Issue two is overruled.
CONCLUSION
The trial court's judgment is affirmed.
Patrick A. Pirtle
Justice Do not publish.