In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00438-CR __________________
DAVID BROADUS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 18-28797 __________________________________________________________________
MEMORANDUM OPINION
A jury found Appellant David Broadus guilty of the aggravated assault of
Pauline 1 and assessed punishment at fourteen years of confinement. The trial court
sentenced Broadus to fourteen years of confinement and entered a deadly weapon
finding. Raising three issues, Broadus appeals. We affirm the trial court’s judgment.
1 We refer to victims by a pseudonym to conceal their identity. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 1 Evidence at Trial
Detective Eric Thomason with the Port Arthur Police Department testified
that on January 25, 2018, he responded to a five-vehicle accident on Highway 69 in
Port Arthur, and dispatch had advised the wreck was possibly the result of shots
being fired. The driver of the white vehicle, Joseph, had been shot and died at the
scene from the gunshot wound. According to Detective Thomason, once Joseph had
been shot, the vehicle he was driving crossed over to the wrong side of the road, hit
a vehicle driven by Pauline, and then hit other vehicles. Pauline testified that she did
not remember the accident, but that she was seriously injured in the accident and
spent weeks in the hospital and months in therapy. A witness working nearby
testified that he saw a gray car chasing a white car and speeding down Highway 69
that day, he saw an arm come out of the gray car’s passenger side, and he heard shots
fired prior to the crash. A surveillance video camera from a nearby store captured
the wreck, and a copy of the video was admitted into evidence and published to the
jury. Detective Thomason testified that he and Detective Cater responded to a tip
that the shooting at the crash scene involved an altercation that had originally started
at the Lowe’s store in Port Arthur.
A loss prevention manager at Lowe’s testified that he made a copy of
surveillance video from the Lowe’s parking lot that day and provided it to law
enforcement, and the video was admitted into evidence and published to the jury.
2 According to the manager, one of the vehicles that was involved in an altercation in
the parking lot was a silverish-gray Jeep SUV owned by a Lowe’s cashier, and one
of the men on the video involved in the altercation was the fiancé of that employee.
The manager testified that even though he had no direct interaction with that man in
the video, he recognized him because the man briefly worked at Lowe’s and since
then would regularly come in the store and talk to the cashier who was his fiancé.
The manager testified that the video depicted the man leave the store suddenly, run
into the parking lot, meet two other people, get into the Jeep, drive to the right side
of the parking lot, and meet up with a white four-door vehicle. According to the
manager, two others were in the vehicle with the cashier’s fiancé and “[t]hey got out
of the car, got back in really quickly because the white car pulled off and took off
and then the silver vehicle followed quickly after them.” When shown pictures of
the white vehicle involved in the crash, the manager testified that it appeared to be
the same white vehicle from the Lowe’s surveillance video.
Detective Terry Cater with the Port Arthur Police Department testified that he
responded to the scene and then followed up with the lead at Lowe’s. He met with
the Lowe’s employee the manager had identified who told Detective Cater that her
fiancé, James Levron, was driving the Jeep in the video. Detective Cater testified
that he met with Levron and learned that he was driving at the time of the shooting,
that Broadus was in the front passenger’s seat, and that John Bertone was in the back
3 seat. Detective Cater testified that based on a tip from Hector Martinez that on that
day Martinez saw Levron and Broadus at Martinez’s auto body garage and he saw
Broadus come from behind the building with a shovel, law enforcement searched
the property behind Martinez’s garage a few days later. Behind Martinez’s shop, law
enforcement recovered a handgun frame buried in mud, firearm components in
another hole nearby, and a black shirt wrapped around a firearm magazine.
According to Detective Cater, based on his investigation, he believed Broadus was
the shooter and Broadus was charged with the murder of Joseph and the aggravated
assault of Pauline.
Brandy Henley, a forensic scientist firearms examiner at the Jefferson County
Regional Crime Lab, testified that she received parts of a firearm in this case and
once she reassembled the parts and borrowed a missing firing pin spring and firing
pin spring keeper from another firearm, the firearm was functional. Henley also
testified that the spent bullet recovered from Joseph’s body during an autopsy came
from the same caliber class as the firearm she assembled and test-fired.
Kerri Todd, a forensic scientist with the Texas Department of Public Safety
crime laboratory, testified that no DNA profile was obtained from the parts of the
handgun recovered in this case. She also testified that, as for the black shirt recovered
in the case, the results of the DNA extracting of the shirt were as follows:
[T]he partial DNA profile is interpreted as a mixture of three individuals. Obtaining this mixture profile is 149 billion times more 4 likely that the DNA came from David Broadus and two unknown individuals than if the DNA came from three unrelated, unknown individuals. Based on this likelihood ratio result, David Broadus cannot be excluded as a possible contributor to the profile. Based on the likelihood ratio result, it is inconclusive whether James Levron is a contributor to the profile and [Joseph] is excluded as a contributor for the profile.
James Levron testified that he and Broadus had been friends for about ten
years and started a fence company together. According to Levron, on January 25,
2018, he took his truck to his friend Hector Martinez’s shop, Levron left his truck,
and Levron took Martinez’s truck to get fencing material from Lowe’s because
Martinez’s truck could haul more material. Levron testified that when he, Broadus,
and Bertone got to Lowe’s, Martinez’s truck had mechanical problems so Levron
went and got the keys to his fiancé’s Jeep from her while she was at work in Lowe’s
so he could go pick up a rental truck to haul the material. According to Levron, while
he was getting the keys from his fiancé in Lowe’s, Broadus and Bertone waived him
down, he went out to the car, and they told him there was a guy in the parking lot
that had stolen their company tools the prior week. Levron testified they got in the
Jeep and drove to confront the person in the white Chevy, and when the car drove
off, they followed it. Levron testified that as he was “doing about 80 miles an hour[]”
down the highway with the windows down, Broadus was yelling at the white vehicle
to pull over while Levron was honking and flashing the Jeep’s lights, and when the
car did not pull over, Broadus was in the passenger’s seat and pulled out a gun and
5 shot at the vehicle. According to Levron, while he had intended on confronting the
person in the white car to try to get his tools back, Levron did not know Broadus had
a gun. Levron testified that he was shocked and “took off” and exited the freeway
while the white car continued down the highway. According to Levron, they returned
to Martinez’s automotive shop to get their vehicles. Broadus acted nervous and
asked Martinez for his keys, and he and Bertone left. Levron went back to get
Martinez’s truck from Lowe’s, and then later Levron, Broadus, and Bertone went
back to Martinez’s shop to get their tools out of Martinez’s truck. According to
Levron, Broadus and Bertone went to the back of the shop with a shovel, and Levron
thought they were going to bury the weapon. Levron testified Broadus got back in
the vehicle to leave wearing a white shirt. Levron identified the shirt that was
collected as evidence and was wrapped around the firearm magazine as the black
shirt Broadus was wearing the day of the shooting, and Levron testified that the
disassembled gun that was in evidence was similar in size to the gun Broadus used
that day. Levron testified that he was initially not honest with the police about what
had happened because he was scared, but later he told the truth, was arrested, and
has been in custody since then.
Hector Martinez testified that he was working in his shop on the day of the
shooting and that Levron, Broadus, and Broadus’s cousin arrived that morning to
borrow Martinez’s truck to go to Lowe’s to pick up materials. Martinez testified that
6 Levron lives next door and Martinez had also met Levron and Broadus before.
According to Martinez, when they came back to the shop, Levron was driving
James’s or his wife’s silver Jeep, Levron dropped off Broadus and his cousin at their
vehicle at the shop, and then Levron went and got Martinez’s truck at Lowe’s and
brought it back to Martinez. Martinez testified that all three returned to his shop that
afternoon, and Martinez could hear them arguing while he was working. Martinez
testified that he heard Broadus say, “Do you think I got him? Do you think I hit
him?” and then he saw Levron and Broadus’s cousin in the front while Broadus came
from the alley behind the shop carrying a shovel. Martinez testified that he saw
Levron on the news turning himself in to law enforcement for murder, and Martinez
contacted his attorney regarding what he had witnessed. Martinez then provided a
statement to law enforcement and consented to law enforcement looking for
evidence around his property.
Analysis
In his first issue, Broadus argues that his prosecution should have been barred
by collateral estoppel due to his acquittal for the murder of Joseph, and therefore, he
should also be acquitted in this case. Broadus concedes he did not object on grounds
of double jeopardy prior to or during trial, but he argues that no waiver occurred
because it is clear on the face of the record that his aggravated assault conviction
was obtained in violation of constitutional double jeopardy protections. Broadus
7 argues he was acquitted in trial cause number 18-28678, in which he was indicted
for allegedly causing the death of Joseph by shooting him with a firearm. According
to Broadus, he is the same person alleged as the defendant in that indictment and the
indictment in the present case, the two indictments reflect the same offense dates,
the same prosecutor prosecuted both cases, the jury charge in both cases identified
the same accomplice witnesses and gave the same instructions regarding accomplice
witnesses and law of the parties, and the reporter’s records in both cases and the
probable cause affidavit in the murder case show the cases involved the same
sequence of events and many of the same witnesses. Broadus contends that the
shooting of Joseph is an ultimate or elemental fact of the aggravated assault charge
in this case, and “[w]ithout the shooting of [Joseph], Appellant cannot be held to be
liable for the aggravated assault of [Pauline] because the indictment alleges that the
shooting of [Joseph] led to his loss of control of his vehicle, causing it to crash into
[Pauline]’s vehicle.” Broadus argues that the prosecution of the present case violated
Ashe v. Swenson and Rollerson v. State in that it allowed the State to relitigate the
same facts after Broadus had already been found not guilty of shooting Joseph.
The State argues that Broadus failed to raise a pre-trial challenge on collateral
estoppel grounds prior to trial of the aggravated assault and therefore waived the
challenge. According to the State, “[i]t is not [] clear on the face of the record that
there was any violation of the double-jeopardy clause, nor any legitimate collateral
8 estoppel issue.” The State contends that Broadus may have been tried and acquitted
on a murder charge stemming from essentially the same facts, but the murder
indictment limited the jury to determining whether Broadus acted “intentionally or
knowingly,” and in the subsequent aggravated assault indictment the jury was not
precluded from considering whether Broadus acted “recklessly” resulting in serious
bodily injury to a different victim. The State argues it was not collaterally estopped
from trying Broadus for an aggravated assault crime that included a reckless mental
state because the jury in the murder trial only decided Broadus was not guilty of
“intentionally or knowingly” causing the death of Joseph by shooting him with a
firearm.
The Double Jeopardy Clause in the United States Constitution states that no
person shall “be subject for the same offence to be twice put in jeopardy of life or
limb[.]” U.S. Const. amend. V. This guarantee protects against multiple criminal
punishments for the same offense and successive prosecutions for the same offense
after acquittal or conviction. Monge v. California, 524 U.S. 721, 727-28 (1998); Ex
parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013). The doctrine of
collateral estoppel in a criminal case arises from the Fifth Amendment’s bar against
double jeopardy. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002).
Collateral estoppel means that “when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be litigated
9 between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443
(1970). 2 In the criminal law context, the collateral estoppel doctrine operates to
prevent the State from contesting in any subsequent proceedings between the parties
any discrete fact the jury in the previous proceeding necessarily determined in the
criminal defendant’s favor. Ex parte Watkins, 73 S.W.3d at 268. A general verdict
returned in the guilt phase of a criminal trial “frequently makes it difficult to
determine precisely which historical facts a jury found to support an acquittal.” Id.
2 As stated by the Texas Court of Criminal Appeals in Ex Parte Adams
[U]nder the collateral-estoppel component of double jeopardy, the government may not litigate a specific elemental fact to a competent factfinder (judge or jury), receive an adverse finding by that factfinder on the specific fact, learn from its mistakes, hone its prosecutorial performance, and relitigate that same factual element that the original factfinder had already decided against the government.
Ex Parte Adams, 586 S.W.3d 1, 5 (Tex. Crim. App. 2019) (quoting Rollerson v. State, 227 S.W.3d 718, 730 (Tex. Crim. App. 2007)). The Ashe test is a demanding one, and Ashe forbids a second trial only if a conviction in the second trial requires a finding in the government’s favor on an issue the jury necessarily resolved in the defendant’s favor in the first trial. Id. A second trial “is not precluded simply because it is unlikely—or even very unlikely—that the original jury acquitted without finding the fact in question.’” Id. (quoting Yeager v. United States, 557 U.S. 110, 133-34 (2009) (Alito, J., dissenting)); see also Ex parte Watkins, 73 S.W.3d 264, 268-69 (Tex. Crim. App. 2002) (“The mere possibility that a fact may have been determined in a former trial is insufficient to bar relitigation of that same fact in a second trial.”). Thus, courts must be able to say that “‘it would have been irrational for the jury’” to acquit in the first trial without finding in the defendant’s favor on a fact essential to a conviction in the second, in order to say that the second trial is tantamount to a trial of the same offense as the first and thus forbidden by the double jeopardy clause. Id. (quoting Yeager, 557 U.S. at 127) (Kennedy, J., concurring)).
10 at 269. The defendant bears the burden to demonstrate that the issue the defendant
seeks to foreclose was actually decided in the first proceeding. Guajardo v. State,
109 S.W.3d 456, 460 (Tex. Crim. App. 2003). To determine whether collateral
estoppel applies to a subsequent prosecution, courts use a two-step analysis:
(1) determining exactly what facts were necessarily decided in the first proceeding,
and (2) whether those necessarily decided facts constitute essential elements of the
offense in the second trial. Ex parte Taylor, 101 S.W.3d 434, 440 (Tex. Crim. App.
2002).
Generally, a criminal defendant has the burden to preserve his double jeopardy
complaint by objecting at or before the time the charge is submitted to the jury.
Gonzalez v. State, 8 S.W.3d 640, 647 (Tex. Crim. App. 2000). A defendant may
forfeit a potential double jeopardy claim if he fails to properly preserve the claim.
See Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) (citing Gonzalez,
8 S.W.3d at 642-43). The Texas Court of Criminal Appeals has explained that
generally a defendant bringing a double jeopardy multiple prosecution claim should
file a petition for a pretrial writ of habeas corpus. Gonzalez, 8 S.W.3d at 643 n.9. A
pretrial writ is the preferred method of bringing a double jeopardy multiple
prosecution claim because the defendant may immediately appeal if the trial court
denied the petition. See id.; Kelson v. State, 167 S.W.3d 587, 591 (Tex. App.—
11 Beaumont 2005, no pet.).3 That said, an appellant may still be able to raise a double
jeopardy claim for the first time on appeal if two conditions are met: (1) the
undisputed facts show the double jeopardy violation is clearly apparent from the face
of the record, and (2) enforcement of usual rules of procedural default serves no
legitimate state interest. See Gonzalez, 8 S.W.3d at 643; see also Garfias v. State,
424 S.W.3d 54, 58 (Tex. Crim. App. 2014) (relying on Gonzalez for the proposition
that when a defendant raises a “multiple punishment” double jeopardy claim for the
first time on appeal, an appellate court must evaluate whether the face of the record
that was before the trial court clearly shows a double jeopardy violation); Langs, 183
S.W.3d at 682 (same). A double jeopardy claim is apparent on the face of the trial
record if resolution of the claim does not require further proceedings for the purpose
of introducing additional evidence in support of the claim. Ex parte Denton, 399
S.W.3d at 544 (citing Gonzalez, 8 S.W.3d at 643); Ex parte Knipp, 236 S.W.3d 214,
216 n.3 (Tex. Crim. App. 2007) (citing Gonzalez, 8 S.W.3d at 642-46). “Raising the
double jeopardy issue in the trial court is important insofar as it is necessary to make
a clear record on which to base an appellate claim.” Guerrero v. State, 305 S.W.3d
3 The Gonzalez opinion did not directly address whether a collateral estoppel claim should also be the subject of a pretrial writ. See Gonzalez v. State, 8 S.W.3d 640, 642-46 (Tex. Crim. App. 2000). However, in the civil context, failing to present a collateral estoppel argument to the trial court constitutes waiver. See Mayes v. Stewart, 11 S.W.3d 440, 450 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see also Tex. R. App. P. 33.1(a) (general rule for preservation of appellate complaints). 12 546, 562 n.1 (Tex. Crim. App. 2009) (citing Gonzalez, 8 S.W.3d at 645-46). To
obtain appellate review of a collateral estoppel claim, a defendant must introduce a
record of the first proceeding in the second proceeding and include that entire record
on appeal. Guajardo, 109 S.W.3d at 457.
Because Broadus failed to raise a double jeopardy claim by pretrial writ or
during trial, it is his burden on appeal to prove that the undisputed facts “show the
double jeopardy violation is clearly apparent on the face of the record[.]” See
Gonzalez, 8 S.W.3d at 643. After this case was on appeal, Broadus had the clerk’s
record and reporter’s record from the murder trial (cause number 18-28678) filed
with this Court and stated the records were being filed as a “supplemental” record in
this appeal. But nothing in the appellate record in this case reflects that the records
from the murder trial were before the trial court in the aggravated assault case. An
appellant is not permitted to supplement the appellate record with materials that have
not been properly made a part of the record in the trial court. Pena v. State, 932
S.W.2d 33, 35 (Tex. App.—El Paso 1996, no pet.); see also Tex. R. App. P. 34;
Rasberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (appellate courts
cannot consider items that are not part of the record from the trial court); White v.
State, 456 S.W.2d 935, 936 (Tex. Crim. App. 1970). The supplementation rules
“exist to allow appellate courts to supplement the appellate record with matters that
were part of the trial record but, for whatever reason, have not been forwarded to the
13 appellate court.” LaPointe v. State, 225 S.W.3d 513, 522 (Tex. Crim. App. 2007).
These rules “cannot be used to create a new record.” Id. Accordingly, we cannot
consider the clerk’s record and reporter’s record from trial cause number 18-28678
filed in this appeal because they are not properly before us. See McClendon v. State,
No. 13-16-00230-CR, 2017 Tex. App. LEXIS 9768, at **3-6 (Tex. App.—Corpus
Christi-Edinburg Oct. 19, 2017, pet. ref’d) (mem. op., not designated for publication)
(where appellant asserted successive-prosecution double jeopardy claim on appeal,
reporter’s record from first trial filed as supplemental record on appeal of second
trial could not be considered because it was not part of the trial record in the second
trial and supplementation rules cannot be used to create a new record).
The appellate record in this case does not reflect that Appellant introduced the
record from his murder trial (cause number 18-28678) into evidence in his
aggravated assault trial, nor did he ask the trial court to take judicial notice of the
record from his murder trial, and he never brought the record from the murder trial
to the attention of the trial court in his aggravated assault case. See LaPointe, 225
S.W.3d at 522; McClendon, 2017 Tex. App. LEXIS 9768, at *5. Without the
information from cause number 18-28678 properly before us, we cannot determine
that, as Appellant has alleged, the offenses charged in the two trials are the same in
law and fact or if the facts necessarily decided in the first trial constitute essential
elements of the offense in the second trial. See Ex parte Castillo, 469 S.W.3d 165,
14 169 (Tex. Crim. App. 2015); Ex parte Taylor, 101 S.W.3d at 440. Because resolution
of this issue would necessarily require further proceedings to introduce evidence
from the first trial in support of Appellant’s claim, we conclude that a double
jeopardy violation is not clearly apparent from the face of the record that is properly
before us. See McClendon, 2017 Tex. App. LEXIS 9768, at *6 (citing Ex parte
Denton, 399 S.W.3d at 544); see also Gonzalez, 8 S.W.3d at 643. We overrule his
first issue.
In his second issue, Broadus argues that if this Court finds that issue one was
waived by his counsel’s failure to object to Broadus’s prosecution as being barred
by collateral estoppel, then his counsel’s failure to object constituted ineffective
assistance of counsel. According to Broadus, the alleged ineffective assistance
should result in a reversal of his conviction and an acquittal.
To prevail on an ineffective assistance claim, Appellant must show
(1) counsel’s representation fell below an objective standard of reasonableness, and
(2) the deficient performance prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687-88 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011). A failure to either make the required showing of deficient performance or
sufficient prejudice defeats the claim of ineffective assistance of counsel. Rylander
v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State,
15 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one
prong of the Strickland test negates a court’s need to consider the other prong.”).
Our review of counsel’s representation is highly deferential, and we will find
ineffective assistance only if Appellant rebuts the strong presumption that his
counsel’s conduct fell within the wide range of reasonable professional assistance.
See Strickland, 466 U.S. at 689, Lopez, 343 S.W.3d at 142. The record must contain
evidence of counsel’s reasoning, or lack thereof, to rebut the presumption. See Mata
v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). We review the totality of the
circumstances rather than isolated instances in determining whether counsel was
ineffective. See Lopez, 343 S.W.3d at 143; Robertson v. State, 187 S.W.3d 475, 483
(Tex. Crim. App. 2006). In some cases, a “single egregious error” may constitute
ineffective assistance of counsel. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim.
App. 2013) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).
However, an isolated failure to object generally does not constitute ineffective
assistance. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
In this matter, the record is silent on trial counsel’s reasons for not raising a
double jeopardy or collateral estoppel challenge either in a pretrial motion or during
the trial. Appellant did not file a motion for new trial alleging ineffective assistance
of counsel or otherwise develop a record of trial counsel’s reasons for his actions.
Without testimony from trial counsel, the court must presume counsel had a
16 plausible reason for his actions. Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—
Houston [1st Dist.] 1999, pet. ref’d). We conclude that Appellant has failed to rebut
the presumption that counsel acted reasonably. See, e.g., Thompson, 9 S.W.3d at
814; Stephenson v. State, 255 S.W.3d 652, 660 (Tex. App.—Fort Worth 2008, pet.
ref’d). The second part of the Strickland test requires an appellant to show that there
is a reasonable probability that the outcome of his case would have been different
but for counsel’s errors. Strickland, 466 U.S. at 694. Having concluded that
Appellant failed to satisfy the requirements of the first Strickland prong, we need
not address the second prong. See Williams, 301 S.W.3d at 687. We overrule
Broadus’s second issue.
In his third issue, Broadus argues the trial court’s judgment should be
modified to delete the affirmative finding of a deadly weapon. For a trial court to
enter a deadly weapon finding in the judgment, the trier of fact must first make an
affirmative finding to that effect. See Duran v. State, 492 S.W.3d 741, 746 (Tex.
Crim. App. 2016). Courts do not look to the facts of the case to “imply” an
affirmative deadly weapon finding but look to the charging instrument, the jury
charge, and the jury verdict to evaluate the propriety of an entry of a deadly weapon
finding by the jury. Id. There are three formal ways a jury makes this affirmative
finding: (1) the indictment specifically alleged a “deadly weapon” was used (using
the words “deadly weapon”) and the defendant was found guilty “as charged in the
17 indictment”; (2) the indictment did not use the words “deadly weapon” but alleged
use of a deadly weapon per se (such as a firearm); or (3) the jury made an express
finding of fact of use of a deadly weapon in response to submission of a special issue
during the punishment stage of the trial. Id.; see also Polk v. State, 693 S.W.2d 391,
396 (Tex. Crim. App. 1985) (en banc). According to Broadus, this Court should
delete the affirmative finding of a deadly weapon because none of these measures
were followed. See id.
Here, the indictment charging Broadus with aggravated assault alleged that
Broadus caused serious bodily injury to Pauline “by shooting [Joseph] while
[Joseph] was operating a motor vehicle which [led] to [Joseph] crashing said vehicle
into the vehicle operated by [Pauline.]” The jury was instructed to find Broadus
guilty of aggravated assault “as charged in the indictment[]” if it believed beyond a
reasonable doubt that Broadus “intentionally or knowingly or recklessly cause[d]
serious bodily injury to [Pauline] . . . by shooting [Joseph] while [Joseph] was
operating a motor vehicle which [led] to [Joseph] crashing said vehicle into the
vehicle operated by [Pauline].”
The statutory definition of “deadly weapon” includes “a firearm or anything
manifestly designed, made, or adapted for the purpose of inflicting death or serious
bodily injury; or . . . anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17). As
18 such, an allegation that a defendant committed an aggravated assault by causing
serious bodily injury or death necessarily implies the use of a deadly
weapon. See Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App.
2009); Blount v. State, 257 S.W.3d 712, 714 (Tex. Crim. App. 2008); Vallado v.
State, 350 S.W.3d 257, 260 (Tex. App.—San Antonio 2011, pet. ref’d). Brandy
Henley, a forensic scientist for the Jefferson County Regional Crime Lab who
specifically works on firearms, testified that the weapon recovered in this case was
a functioning firearm. Having found Broadus guilty of aggravated assault, the jury
necessarily found the commission of the assault involved the use or exhibition of a
deadly weapon. See Walker v. State, No. 05-13-01082-CR, 2014 Tex. App. LEXIS
11869, at **6-7 (Tex. App.—Dallas Oct. 29, 2014, no pet.) (mem. op., not
designated for publication) (citing Crumpton, 301 S.W.3d at 664); see also Blount,
257 S.W.3d at 714 (explaining that both means of committing aggravated assault
involve the use of a deadly weapon). Accordingly, the trial court did not err in
making the affirmative deadly weapon finding. See Walker, 2014 Tex. App. LEXIS
11869, at **6-7. We overrule issue three.
19 Having overruled all of Broadus’s issues on appeal, we affirm the trial court’s
judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on May 21, 2020 Opinion Delivered April 14, 2021 Do Not Publish
Before Kreger, Horton and Johnson, JJ.