Benjamin Otero, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: November 4, 2004
• Docket: 01-03-00697-CR
• Status: Published

Opinion

Opinion issued November 4, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00697-CR

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BENJAMIN OTERO JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 185th District Court

Harris County, TexasTrial Court Cause No. 919980

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MEMORANDUM OPINION

          A jury convicted appellant, Benjamin Otero Jr., of murder and assessed punishment at 20 years in prison. See Tex. Pen. Code Ann. §§ 19.02(b)(1), (2) (Vernon 2003). The trial court entered an affirmative deadly-weapon finding. We determine whether legally sufficient evidence showed that appellant used his hands as deadly weapons. We affirm.

          In his sole issue, appellant contends that the evidence was legally insufficient both to support the deadly-weapon affirmative finding and, for the same reason, to convict him of murder as alleged in the indictment.

          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(17)(B) (Vernon 2003). A person’s hands are not deadly weapons per se, but they can become deadly weapons in the manner of their use. See Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983); see also Ray v. State, 266 S.W.2d 124, 128 (Tex. Crim. App. 1954), overruled on other grounds by Burns v. State, 388 S.W.2d 690, 697 (Tex. Crim. App. 1965).

          In a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury charge tracked the indictment, which alleged that appellant either intentionally or knowingly caused the complainant’s death by striking her with a deadly weapon, his hand, or that he “intended to cause serious bodily injury . . . and did cause the complainant’s death . . . by intentionally and knowingly committing an act clearly dangerous to human life,” which again was striking her with a deadly weapon, his hand. See Tex. Pen. Code Ann. §§ 19.02(b)(1), (2).

          Appellant argues that the evidence is legally insufficient to show the use of a deadly weapon because

[t]here was no testimony at trial regarding any special training, strength, or special ability possessed by the defendant. No one testified that Mr. Otero had training in karate, for example, or competitive boxing, or any other sport or activity that would render his hands particularly or unusually dangerous.

Appellant also asserts that the only evidence that his hands were deadly weapons came from the medical examiner who performed the autopsy, in the form of an affirmative answer to the question of whether a hand or fist “could be considered a deadly weapon” and could cause “serious bodily injury or death,” without reference to the specific case. Appellant also argues that it “is hard to reconcile an affirmative finding that [his] hands are deadly weapons” with the fact that the police did not restrain appellant’s hands when he was arrested.

          The record does not support appellant’s challenge. The medical examiner did not testify in the conclusory fashion that appellant claims, but testified in detail as to the complainant’s specific and numerous injuries, testified that those injuries were consistent with having been caused by a hand or fist and with the complainant’s having been beaten to death, testified that a hand or fist could be considered a deadly weapon and that it could cause serious bodily injury or death, and concluded that the complainant died of blunt-force injuries that caused internal hemorrhaging. The autopsy photographs and report support the medical examiner’s testimony. This is the kind of evidence that supports a finding that appellant used his hands as deadly weapons. See Turner, 664 S.W.2d at 90 & 90 n.5 (indicating that evidence such as autopsy report, the types of injuries or wounds inflicted by hands or fist, the relative size of the parties, the manner that the fists or hands were used, and the size and condition of the hands are types of evidence that may be considered in determining whether hands or fist were deadly weapons).

          We hold that the evidence was legally sufficient to support the deadly-weapon affirmative finding and the conviction.

          We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Tim Taft

                                                                        Justice

Panel Consists of Justices Taft, Jennings, and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).