TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00133-CR
Billy Gene Faircloth, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. D-1-DC-11-200824, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant, Billy Gene Faircloth, of aggravated assault with a deadly
weapon and sentenced him to sixty years in prison. See Tex. Penal Code §§ 12.32 (first-degree
felony punishment); .42 (enhancements for habitual offenders); 22.02 (aggravated assault). In two
issues on appeal, appellant asserts that the evidence was insufficient to support the jury’s finding that
he was the perpetrator of the crime and that a rock used to beat the victim was a deadly weapon. See
id. § 1.07 (definition of “deadly weapon”). We will affirm the judgment of conviction.
BACKGROUND
The jury heard evidence of the following: In mid-February 2011, Kathy McWilliams
was attacked from behind by a male assailant after exiting her vehicle, which was parked on the
lowest level of a five-story underground parking garage in downtown Austin. The assailant
repeatedly struck McWilliams in the back, side, and front of her head with a hard object, which she did not see but perceived to be something like a brick. Although bleeding profusely, McWilliams
was able to physically repel the assailant, and he ran away after two bystanders—a man and a
woman—happened on the scene and responded to McWilliams’s cries for help.
Although McWilliams could not see distances clearly without her glasses, which had
been knocked off in the assault, she kept her eye on the assailant as he fled and hid in the garage.
The female bystander also saw the assailant flee to the same area of the parking garage. When a
uniformed maintenance worker and security guard arrived at the scene, McWilliams pointed them
to where she could still see her attacker hiding, which was approximately 20 to 30 feet away from
her. The maintenance worker and security guard approached the man, who appeared to be hiding,
and directed him to “stop” or “give it up” or both. The man did not respond to the directive and
instead ran. The maintenance worker pursued him. Another building employee and security guard
assisted in the pursuit, which traversed several levels of the parking garage. Two levels up, a man
in a yellow shirt and jeans was found standing or hiding behind a car and was tackled by a security
guard when he attempted to flee. The man, subsequently identified as appellant, was arrested by an
Austin Police Department (APD) officer, who arrived on the scene shortly before or after appellant
was apprehended. The officer testified that appellant was sweating profusely, “consistent with
somebody . . . who had been running around a parking garage for 10 or 15 minutes.”
Prior to or contemporaneously with the initiation of pursuit, the female bystander had
given a security guard a description of the assailant as a man wearing a yellow shirt and jeans. The
man found in the vicinity of the attack was said to be wearing a yellow shirt and what a security
guard described as dark beige trousers. Although the security guard and maintenance worker did not
2 have a description of the assailant, the man was pursued based on McWilliams’s statement directing
them to the man’s location and his subsequent attempt to flee when approached and confronted.
At some point during or after the pursuit, the maintenance worker found an “unusual”
rock in a stairwell near where McWilliams saw her attacker hiding and in the vicinity of where the
man had been when fleeing the security guard. The maintenance worker testified that the rock was
unusual because it was atypical of the materials used in the building and parking garage. The rock,
which a witness described as being a smooth river rock that was a little bigger than a softball, was
later determined to be stained with McWilliams’s blood. McWilliams’s blood was also found on
a package of cigarettes found at the scene near her purse. The cigarettes did not belong to
McWilliams, and appellant could not be excluded as a contributor to a DNA mixture found on the
package. At trial, a DNA analyst for APD testified that the probability of the DNA matching an
unrelated person at random was 1 in 33,260 for Caucasians. Appellant also could not be excluded
as a contributor to a DNA mixture that was found on the rock, although the DNA analyst testified
that as to that sample the statistical probability of a match to appellant was much lower at 1 in 217
for Caucasians. In addition, it was undisputed that the rock was transported to the APD lab inside
appellant’s boot, creating a possibility of contamination.
At trial, McWilliams testified that her assailant had bright blue eyes, curly hair, tan
or khaki pants, and a yellow short-sleeved golf-type shirt. It was stipulated that the appellant has
blue eyes. The female bystander testified that the assailant had dark hair and light skin and was
wearing dark pants and a light-colored, double-breasted shirt or top with long sleeves that looked
like a chef’s shirt (or something with a collar high up on the neck like a Mandarin-type collar). The
3 male bystander testified that he did not get a good look at the assailant because the garage was dark
and he was attending to McWilliams but that after the assault he had reported that the assailant was
wearing a dirty or brownish long-sleeve shirt or smock, like a chef might wear. The security guard
who pursued the man hidden in the location identified by McWilliams described the man as being
middle-aged with a goatee, dark-colored beige slacks and a light yellow canary-colored shirt. At
trial, he identified appellant as the man who was found hiding and who attempted to evade capture
when confronted. Other than the security guard and one of the maintenance workers who pursued
appellant, no witness described McWilliams’s attacker as having facial hair, and McWilliams had
told police the assailant was “clean shaven.” At trial, she explained that by “clean shaven” she
meant that “he was not a street person. He wasn’t a street urchin. . . . [H]e was clean cut.”
The jury also heard evidence that all exits and entrances to the parking garage were
found at street level, and once inside the garage, people could only move between levels via the
garage’s ramps, elevators that open to the lobby, or two stairwells leading either to the building’s
lobby or an alley. All entrances and exits to the garage were monitored with surveillance cameras.
Although there was no video-surveillance footage of the actual assault on McWilliams, the jury
viewed video footage of appellant’s movements prior to the attack. The footage also shows the
pursuit of appellant, and witnesses positively identified him as the man shown attempting to evade
capture after being confronted following the attack. Although appellant was not employed in the
building, the video showed that he arrived in the parking garage at approximately 8:00 a.m. that
morning and did not leave the garage at any time prior to being arrested at about 1:15 p.m. in the
afternoon. He was also shown wandering on various levels of the parking garage and was seen
4 “talking” on a cell phone on floors of the parking garage that witnesses uniformly testified lack cell
phone service. The jury also viewed surveillance video and still images that show appellant running
in the vicinity of the assault shortly after McWilliams was attacked and up the ramp to level 4 of the
garage. No other person was captured on the video-surveillance footage running or wandering
around the parking garage in the vicinity of the attack at the time of the attack or during the
subsequent pursuit of the individual witnesses identified as being appellant. Video-surveillance
footage also did not show appellant or anyone else leaving the building near the time of the attack.
A security guard who viewed the video-surveillance footage of that day said he was looking only for
video footage of appellant, but he did not see any other “random people” loitering in the parking
garage or anything else that raised his suspicions. He also did not see anyone wearing a chef-style
jacket or any suspicious person having long sleeves, nor was such a person ever found in the garage.
Photographs of appellant after he was apprehended were admitted at trial and show him to be
wearing blue jeans and a light yellow button-collared, front-button shirt with short sleeves. He had
dark hair that was thick and slightly wavy, light skin, a mustache, and a goatee.
The jury found appellant guilty of aggravated assault with a deadly weapon and, after
finding that he had committed at least one prior felony offense, sentenced him to 60 years in prison.
DISCUSSION
In his first appellate issue, appellant contends that there is insufficient evidence to
support the jury’s finding that he was McWilliams’s assailant. He points out that no eyewitness ever
positively identified him as the assailant. In addition, the three eyewitnesses—McWilliams and the
two bystanders—gave inconsistent descriptions of the assailant’s attire and made no mention of
5 facial hair in their descriptions. Moreover, the two bystanders both testified that McWilliams’s
assailant wore a long sleeve, chef-style jacket, but appellant did not have one in his possession when
he was apprehended, and video-surveillance footage does not show him to be wearing or carrying
a chef’s jacket or a long-sleeve shirt when he entered the garage. Appellant also asserts that the only
physical evidence linking him to the crime is not compelling and further notes that McWilliams’s
blood was not found on him or his clothing.
When reviewing the sufficiency of the evidence to support a conviction, we consider
all 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. Jackson
v. Virginia, 443 U.S. 307, 318-19 (1979); Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.
2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see also Merritt v. State,
368 S.W.3d 516, 525 n.8 (Tex. Crim. App. 2012). An essential element that the State must establish
beyond a reasonable doubt is that the accused was the perpetrator of the crime charged. See
Wilson v. State, 9 S.W.3d 852, 855 (Tex. App.—Austin 2000, no pet.) (citing Johnson v. State,
673 S.W.2d 190, 196 (Tex. Crim. App. 1984)). Evidence as to the identity of the perpetrator of
an offense can be established by direct or circumstantial evidence; eyewitness identification
is not necessary. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Greene v. State,
124 S.W.3d 789, 792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). For purposes of proving
guilt beyond a reasonable doubt, direct and circumstantial evidence of identity are equally probative.
Wilson, 9 S.W.3d at 855 (citing McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989)).
Furthermore, any discrepancies in the description of an assailant’s clothing or appearance go to the
6 credibility of the witnesses and the weight to be given their testimony, which are matters solely for
the fact-finder’s consideration. See Merritt, 368 S.W.3d at 525 (fact-finder is sole judge of weight
of evidence and credibility of witnesses); Earls, 707 S.W.2d at 85 (jury to resolve discrepancies in
witnesses’ descriptions of perpetrator).
It is not necessary that every fact point directly and independently to the defendant’s
guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the
incriminating circumstances. Merritt, 368 S.W.3d at 526; Williams v. State, 240 S.W.3d 293, 297
(Tex. App.—Austin 2007, no pet.). In this case, circumstantial evidence points strongly to appellant
as the man who attacked McWilliams. There was evidence that appellant was present in the parking
garage for a substantial portion of the day in areas of the parking garage reserved for employees;
however, he was not employed in the building. He was purporting to use his cell phone for extended
periods of time in areas where there was no cell phone service. Several witnesses place a man
generally matching appellant’s description in temporal and physical proximity to the scene of the
crime. When confronted, a man identified by witnesses as being appellant attempted to evade
pursuers and conceal himself after being confronted. This pursuit was captured on
video-surveillance footage, which the jury viewed. Although the attack on McWilliams was not
captured on video, a man identified as appellant was captured on video running from the scene of
the attack contemporaneously with the general timeline of the attack, and no other unidentified
person was videotaped or found in the vicinity of the assault. After being pursued from level 5 to
level 3 of the parking garage, appellant had to be physically subdued and, when arrested, was
sweating profusely, consistent with having run up several levels of the parking garage. Although
7 opportunity to commit the crime and flight to avoid capture may not be sufficient on their own to
prove identity, they are circumstances indicative of guilt. See Merritt, 368 S.W.3d at 526 (jury can
consider motive and opportunity as circumstantial evidence of guilt); Clay v. State, 240 S.W.3d 895,
905 n.11 (Tex. Crim. App. 2007) (evidence of flight evinces consciousness of guilt); Hemphill
v. State, 505 S.W.2d 560, 562-63 (Tex. Crim. App. 1974) (evidence of flight and concealment are
circumstances that may be considered with other evidence); Cawley v. State, 310 S.W.2d 340, 342
(Tex. Crim. App. 1957) (evidence of flight is corroborating circumstance because it is indicative of
consciousness of guilt). Finally, physical evidence links appellant’s DNA to a cigarette package
found at the crime scene that had the victim’s blood on it. The jury could have considered
this evidence along with all the other circumstantial evidence pointing to appellant’s identity as
the perpetrator.
Giving proper deference to the jury’s verdict and the combined force of all the
evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that
appellant was the perpetrator of the assault on McWilliams. See Merritt, 368 S.W.3d at 525
(reversing court of appeals because court “failed to properly consider the combined and cumulative
force of the evidence and to view the evidence in the light most favorable to the jury’s guilty
verdict”). We therefore overrule appellant’s first appellate issue.
In his second appellate issue, appellant challenges the sufficiency of the evidence to
support the jury’s finding that he used a deadly weapon in the course of assaulting McWilliams. To
sustain a deadly weapon finding, there must be sufficient evidence that: (1) the object meets the
statutory definition of a “deadly weapon”; (2) the deadly weapon was used and exhibited “during the
8 transaction from which” the felony conviction was obtained; and (3) other people were endangered.
Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The Penal Code defines the term
“deadly weapon” to include “anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” Penal Code § 1.07(a)(17)(B). Under this definition,
“[o]bjects 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.” Drichas, 175 S.W.3d at 798.
There is no dispute that the rock was used to assault McWilliams and that she was thereby
endangered. The only issue on appeal is whether the rock meets the statutory definition of a
“deadly weapon.”
In McCain v. State, the court of criminal appeals explained section 1.07(a)(17)(B)
by saying:
The statute does not say “anything that in the manner of its use or intended use causes death or serious bodily injury.” Instead the statute provides that a deadly weapon is “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” The provision’s plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word “capable” in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.
22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (internal citations omitted). Several factors may be
considered in determining whether an object is capable of causing death or serious bodily injury:
(1) physical proximity between the victim and the object; (2) the threats or words used by the
defendant; (3) the size and shape of the weapon; (4) the weapon’s ability to inflict death or serious
9 injury; (5) the manner in which the defendant used the weapon; and (6) the nature of the wounds
inflicted. See, e.g., Dominique v. State, 598 S.W.2d 285, 286 (Tex. Crim. App. 1980); Kennedy
v. State, ___ S.W.3d ___, No. 02-11-00417-CR, 2013 WL 709102, at *4 (Tex. App.—Fort Worth
2013, no pet. h.); Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d); Bailey v. State, 46 S.W.3d 487, 491-92 (Tex. App.—Corpus Christi 2001, pet. ref’d); Lozano
v. State, 860 S.W.2d 152, 156 (Tex. App.—Austin 1993, pet. ref’d); see also Brown v. State,
716 S.W.2d 939, 946-47 (Tex. Crim. App. 1986) (noting that court of appeals considered such
factors and upholding court’s conclusion that evidence was legally sufficient to sustain conviction).
No one factor is determinative, and each case must be examined on its own facts. See Brown,
716 S.W.2d at 946-47. Viewing the evidence in light of the foregoing factors, the record contains
sufficient evidence to support the jury’s deadly-weapon finding.
The evidence shows that McWilliams sustained multiple blows to the head from a
rock larger than a softball. Although appellant observes that no witness testified about the weight
of the rock, the rock was admitted at trial for the jury’s consideration. The rock is large and dense
with mostly smooth, rounded edges but it also has some jagged or uneven pieces. McWilliams was
attacked from behind, reducing the opportunity to defend against the attack and indicating that the
location of the blows to the head was intentional. Although there is no direct testimony about the
proximity of the victim and the assailant, the jury could rationally infer close proximity from the
nature of the weapon (which either must have been thrown or used in close proximity), the repeated
number of blows to the head (tending to negate it having been thrown), and McWilliams’s testimony
that (1) she saw the assailant’s shadow approach her from behind with something in his hand, (2) the
10 man continued striking her in the head when she turned toward him, and (3) he was close enough
for her to kick him in the groin and shove him away from her. The jury could also have inferred that
the rock, in the manner used, was capable of inflicting death or serious injury based on evidence
about the location and severity of the injuries McWilliams sustained. Several witnesses testified that
the victim and her clothing were saturated with McWilliams’s blood and that there was a lot of blood
at the scene. Furthermore, after the attack, McWilliams was treated at a hospital for at least three
lacerations to the head, including a severe one that required staples to close it. An APD officer who
took photos of McWilliams’s injuries testified that she had a “pretty deep laceration” behind the ear
and that some of her skin had been dislodged and had become stuck in her hair. Such wounds,
received in a vulnerable part of the body, logically carry at least some potential for resulting in a
serious bodily injury, including brain damage or death. Moreover, the jury could have inferred from
the manner in which McWilliams was assaulted that she would have been hurt even more severely
if she had not defended herself. Indeed, McWilliams herself testified that she thought that the rock
could have been used to kill her if she had not fought back.
In arguing that the evidence is insufficient for the jury to have found that the rock was
capable of causing death or serious bodily injury, appellant relies on Webb v. State, in which the
court of criminal appeals concluded that the evidence was insufficient to sustain a finding that a
victim struck in the head with a rock suffered a “serious bodily injury.” 801 S.W.2d 529, 530 (Tex.
Crim. App. 1990). Appellant’s reliance on Webb is misplaced, however, because the issue there was
whether the victim actually sustained a serious bodily injury, which is not the issue in this case. A
deadly weapon finding does not require that the object actually cause death or serious bodily injury
11 or that the defendant caused or intended to cause death or serious bodily injury; it only requires that
the object have more than a hypothetical capability of causing death or serious bodily injury and that
the actual or intended use of the object was capable of causing death or serious bodily injury.
Johnston v. State, 150 S.W.3d 630, 638 (Tex. App.—Austin 2004, no pet.); Johnston v. State,
115 S.W.3d 761, 764 (Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004).
Considering the close proximity between appellant and McWilliams, the violent manner in which
he assaulted her, the photos and description of the wounds, the size and density of the object used
to hit her, and McWilliams’s testimony that the rock could have been used to kill her, we conclude
that a rational fact-finder could have found that appellant used or intended to use the rock in such
a manner that it would be capable of causing serious bodily injury or death. We overrule appellant’s
second appellate issue.
CONCLUSION
Having overruled both of appellant’s appellate issues, we affirm the judgment
of conviction.
___________________________________________ J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Goodwin and Field
Affirmed
Filed: May 30, 2013
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