No. 05-04-01036-CR
Opinion Filed June 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F04-00497-WL. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
Opinion By Justice LANG-MIERS
After a bench trial, the court convicted Terry Lorenzo Smith of aggravated assault, enhanced by a prior felony conviction for murder, found appellant used or exhibited a deadly weapon during the commission of the offense, and sentenced appellant to twenty-five years' confinement. Appellant appeals the conviction, arguing the evidence is legally insufficient to support (1) the deadly weapon finding, (2) the conviction because he had an alibi, and (3) the finding of true to the enhancement paragraph. We affirm.
Legal Sufficiency
In a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution to 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, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). 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.). And the fact finder may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996); Bruno v. State, 922 S.W.2d 292, 293 (Tex.App.-Amarillo 1996, no pet.). Deadly Weapon Finding
The State indicted appellant for aggravated assault under alternative theories: by striking Marie Reddick with his hand, a deadly weapon, and causing bodily injury or by striking Marie Reddick with his hand and causing serious bodily injury. See Tex. Pen. Code Ann. §§ 22.01, .02 (Vernon Supp. 2004-05). The trial court found appellant "guilty as charged in the indictment." In Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985), the court held that "[i]f the indictment by allegation places the issue [of an affirmative finding of a deadly weapon] before the trier of fact (i.e. `. . . by [striking her with his hand], a deadly weapon . . .') then an affirmative finding is de facto made when the defendant is found guilty `as charged in the indictment.'" See Polk, 693 S.W.2d at 394; see also Hill v. State, 913 S.W.2d 581, 584 (Tex.Crim.App. 1996). A deadly weapon includes "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) (Vernon Supp. 2004-05). 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." Tex. Pen. Code Ann. § 1.07(a)(46). To support the deadly weapon finding, the State had to show that appellant's hand was capable of causing death or serious bodily injury in the manner of its use or intended use. See id. The State was not required to prove appellant actually intended death or serious bodily injury. See id.; Bailey v. State, 38 S.W.3d 157, 159 (Tex.Crim.App. 2001). Appellant argues the evidence is insufficient because the State offered no expert testimony that appellant's hand was capable of causing death or serious bodily injury and offered no medical evidence showing Reddick sustained a serious bodily injury. A fist or hand is not a deadly weapon per se, but it can become a deadly weapon in the manner used depending upon the evidence shown. Lane v. State, 151 S.W.3d 188, 191 (Tex.Crim.App. 2004); Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983). Therefore, the hand could become a deadly weapon if in the manner of use, it is capable of causing death or serious bodily injury. Lane, 151 S.W.3d at 191; Turner, 664 S.W.2d at 90; see Hester v. State, 909 S.W.2d 174, 178-79 (Tex.App.-Dallas 1995, no pet.). The trial court can make an affirmative finding of use of a deadly weapon if employment of the deadly weapon facilitates the associated felony. Patterson v. State, 769 S.W.2d 938, 942 (Tex.Crim.App. 1989); Cooper v. State, 773 S.W.2d 749, 750 (Tex.App.-Corpus Christi 1989, no pet.). Expert testimony is not required to show an instrument can be used as a deadly weapon. Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App. 1978). The fact finder may determine that a fist or hand was used as a deadly weapon based on lay witness testimony alone. See Hester, 909 S.W.2d at 179; Bailey v. State, 46 S.W.3d 487, 489 (Tex.App.-Corpus Christi 2001, pet. ref'd). Additionally, a victim may testify as to the seriousness of her own injuries. See Adams v. State, 969 S.W.2d 106, 110-11 (Tex.App.-Dallas 1998, no pet.) (expert testimony not required to establish serious bodily injury). Appellant and Reddick were involved in an on-and-off relationship since 2002. On March 6, 2003, Reddick heard a knock on her door. She did not answer immediately and then heard someone banging on the door. When she opened the door, appellant demanded to know what took her so long to come to the door. He searched every room in Reddick's house and counted the dishes in the sink. Reddick "asked him what was the matter with him." Appellant replied, "It's nothing the matter with me. It's something wrong with you" and hit Reddick on the right side of her face with his fist hard enough that Reddick lost consciousness. Appellant woke Reddick up and dragged her into the bathroom to clean her face because she "was bleeding everywhere." The bleeding from her eye would not stop, so appellant ordered her to remove her clothes and get in the tub. Appellant cursed at her and said, "You bitch. See what you made me do? . . . I told you before I could kill you. I could kill you anytime I get ready." Appellant pulled Reddick from the tub and took her back to the bedroom where he pushed her on the bed. Reddick's head hit the back of the "baseboard" and caused her to again lose consciousness. Reddick testified when she awoke she was unable to move her neck or hold her head up. A neighbor called an ambulance and Reddick was taken to the hospital. The State offered photographs of Reddick's injuries, and Reddick testified she had two main fractures, the orbital bone under her eye was shattered and gone, "this was all crushed . . . [a]nd it affects down here and up here," she still suffers numbness, and one eye is now lower than the other. Reddick testified she will have to undergo surgery in the future. We conclude this evidence is legally sufficient to support the finding that appellant's hand was capable of causing serious bodily injury and the trial court did not err in making the deadly weapon finding. We overrule appellant's first point of error. Alibi Defense
In his second issue, appellant argues the evidence is legally insufficient to support his conviction because he presented an alibi for the time Reddick was injured. We disagree. Reddick testified appellant arrived at her home that day around 1:45 p.m. and that she remembered the time because the Jerry Springer show was on. However, appellant impeached Reddick's recollection of the time by introducing into evidence a television guide which showed the Jerry Springer show came on at noon, not 1:00 p.m. Additionally, Reddick's neighbor testified she arrived at Reddick's apartment around 12:45 p.m. or 1:00 p.m. and saw Reddick's injuries. When she asked what happened, Reddick told her appellant hit her. Because Reddick had no telephone, the neighbor left the apartment to call an ambulance and saw appellant watching her from around the corner. From this evidence, it is reasonable to infer that the attack on Reddick occurred sometime between noon and 12:45 p.m. when her neighbor arrived, not 1:45 p.m. as Reddick initially testified. Appellant testified he arrived at Freddie's Automotive a little after 11:00 a.m. on March 6, stayed forty to forty-five minutes, and then headed home where he arrived "right at 1:00." He was unsuccessful in starting his lawn mowers so he used the weed-eater to mow his yard all afternoon. To support his alibi defense, appellant presented testimony from Freddie, the owner of Freddie's Automotive, who testified appellant was at his shop as he testified, and appellant's neighbor, who testified she saw appellant mowing his grass from about 12:45 p.m. until about 3:30 p.m. However, Appellant did not account for about an hour of his time between leaving the mechanic's shop, at the latest noon, and arriving home, at the latest 1:00 p.m. He presented no evidence of the driving time from the mechanic's shop to his home. Additionally, the trial court was free to disbelieve appellant's alibi witnesses. Hester, 909 S.W.2d at 178. Based on the record, the trial court could have inferred that appellant had no alibi for this time frame. We overrule appellant's second issue. Finding of True to Enhancement Paragraph
In his third issue, appellant argues the evidence is insufficient to support the trial court's finding of true to the enhancement paragraph because the trial court never admitted the State's evidence of the prior conviction. The record establishes that appellant's punishment was enhanced by one prior felony conviction for murder. See Tex. Pen. Code Ann. § 12.42(b) (Vernon Supp. 2004-05) (enhancing punishment to first-degree felony, or five to ninety-nine years or life imprisonment, for defendant on trial for second-degree felony who has a prior felony conviction); § 12.32(a) (Vernon 2003) (stating punishment range for first-degree felony); § 22.02(a) (classifying aggravated assault as a second-degree felony). The State may prove prior convictions used for enhancement purposes by introducing certified copies of records from the Texas Department of Corrections supported by expert testimony identifying the fingerprints with other known fingerprints of the defendant. Beck v. State, 719 S.W.2d 205, 209 (Tex.Crim.App. 1986). Additionally, when the defendant takes the stand in the guilt/innocence phase of the trial and admits to his criminal record, the record need not be reintroduced at the hearing on punishment and the trial court may properly consider the record. Ex parte Girnus, 640 S.W.2d 619, 620-21 (Tex.Crim.App. 1982). Here, the State offered two exhibits at the punishment phase: the card with known fingerprints of appellant and a penitentiary ("pen") packet of the 1969 murder conviction. Defense counsel objected to the admission of these exhibits on the basis the judge did not sign one page of the pen packet rendering it invalid for enhancement purposes. No other objections were made to this evidence. The trial court overruled the objection but never formally admitted the exhibits into evidence. The State's expert then testified that fingerprints he obtained from appellant that day matched the fingerprints in the pen packet. Defense counsel asked no questions of the expert. An exhibit not expressly admitted into evidence may be considered as evidence when the parties and judge treat the exhibit as if it were in evidence. See Sanchez v. Bexar County Sheriff's Dep't, 134 S.W.3d 202, 203-04 (Tex. 2004) (per curiam); Heberling v. State, 834 S.W.2d 350, 355-56 (Tex.Crim.App. 1992); Travelers Indem. Co. v. Starkey, 157 S.W.3d 899, 904 (Tex.App.-Dallas 2005, pet. filed). Examples of such treatment include references to the exhibit during testimony or closing argument, inclusion of the exhibit in the record, and the judge's consideration of the exhibit in rendering judgment. See Ex parte Reagan, 549 S.W.2d 204, 205 (Tex.Crim.App. 1977) (inclusion of exhibit in record); Killion v. State, 503 S.W.2d 765, 766 (Tex.Crim.App. 1973) (reference to exhibit during testimony); Kissinger v. State, 501 S.W.2d 78, 79 (Tex.Crim.App. 1973) (judge's consideration of judicial confessions in rendering judgment); Starkey, 157 S.W.3d at 904 (reference to exhibit during testimony and argument); Swanson v. State, 722 S.W.2d 158, 161 (Tex.App.-Houston [14th Dist.] 1986, pet. ref'd) (reference to objected-to exhibit during closing argument). In this case, the pen packet is part of the record on appeal, appellant's attorney referred to the criminal record in closing argument in the punishment phase, and appellant admitted the conviction during his testimony in the guilt/innocence phase of the trial before the court. The trial court considered the prior conviction in sentencing appellant because the sentence pronounced was outside the range for a second-degree aggravated assault conviction without the enhancement. Given the record before us, we conclude the pen packet was in evidence, was properly considered by the judge in the determination of punishment, and supports the enhanced punishment. We overrule appellant's third issue. Having decided all of appellant's issues against him, we affirm the judgment of the trial court.