Guillermo Manzano Perez v. State

• Court: Court of Appeals of Texas
• Decided: March 25, 2010
• Docket: 01-08-00817-CR
• Status: Published

Opinion

Opinion issued March 25, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00817-CR

GUILLERMO MANZANO PEREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1181801

MEMORANDUM OPINION

          Appellant, Guillermo Manzano Perez, was charged by indictment with the offense of aggravated assault, enhanced by two prior felony convictions. See Tex. Penal Code Ann. § 22.02 (Vernon Supp. 2009).  Appellant pleaded not guilty to the primary offense and pleaded “not true” to the enhancements.  A jury convicted appellant as charged, found the enhancements true, and assessed punishment at 50 years’ confinement.  The trial court entered an affirmative finding on the use of a deadly weapon.

          In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction.

          We affirm.

Background

          Appellant and the complainant, Maria Guerrero, dated and lived together.  Guerrero testified that, on the evening of August 10, 2007, she was watching television in her bedroom, and appellant came home with a machete.  Appellant was upset, was yelling at her, and he suddenly hit her bed with the machete. Appellant then struck Guerrero on her leg and waist, or her leg and chest, with the flat surface of the blade.  Guerrero testified that the machete was “long, new, and very sharp,” and that it hurt badly.

Guerrero testified that appellant then forced her into his car, brought the machete along and put it in the back seat, and drove her to his friend’s house. On the way, appellant repeatedly struck Guerrero’s face with his hand.  Guerrero said that she believed that appellant was going to kill her.  When they arrived, Guerrero asked the friend, “Roberto,” for some ice, but appellant would not let Roberto give her the ice.  Appellant also grabbed a stick that Roberto uses to keep his door closed and struck Guerrero in the arm.  Guerrero described the stick as being “thicker . . . than . . . a mop handle.”  Roberto witnessed the attack, but he did not report it, and he did not testify at trial.

When appellant and Guerrero returned home, appellant’s anger had subsided and he left.  One of Guerrero’s relatives, Jose Martinez, arrived at the home, saw Guerrero’s injuries, and left—apparently seeking a working telephone. Shortly thereafter, paramedics and the police arrived to assist Guerrero.

Officer M. Rodriguez of the Houston Police Department arrived at Guerrero’s home.  Officer Rodriguez testified that Guerrero’s left eye was bruised and swollen, and that she appeared to be in pain.  While he interviewed Guerrero, appellant drove up to the house.  Officer Rodriguez went outside to meet up with appellant and tapped on the car window.  Appellant appeared “dazed” and would not look at Officer Rodriguez.  Officer Rodriguez detained him, then went back inside and asked Guerrero where the machete could be found.  Guerrero went outside to appellant’s car, retrieved the machete, and gave it to Officer Rodriguez.

The machete was not produced at trial.  Officer Rodriguez testified, however, that it was approximately 18 inches long, had a 5-inch blade and a black handle, and looked relatively new.  Guerrero reported how the machete was used on her, and Officer Rodriguez testified that, based on his training and experience, he considered the machete to be a deadly weapon.  Officer Rodriguez said that, based on the manner of appellant’s use, the machete could have easily “flipped” in his hand and caused serious injuries. 

Officer Guerrero also testified that Guerrero had reported to him that she had been hit one time with a wooden stick.  Officer Rodriguez testified that a stick could be a deadly weapon, but that he would not characterize the stick as a deadly weapon in this case, given the manner of its use. 

Paramedic Heath Moore of the Houston Fire Department was also dispatched to Guerrero’s house.  He testified that he saw bruising around her left eye and on her left arm.  He also saw red welts on her arm.  Guerrero refused further medical treatment.  Photographs of her injuries were admitted at trial.

Sufficiency of the Evidence

          In his first and second points of error, appellant contends that evidence is legally and factually insufficient to support his conviction for aggravated assault.  Specifically, appellant contends that the evidence does not support that he used a deadly weapon.  Appellant urges this court to “reform the judgment to reflect a conviction for the lesser offense of assault and remand to the trial court for a new hearing on punishment.”

A.      Standards of Review   

We review the legal sufficiency of the evidence by considering all of 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.  Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)).  We “may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the fact-finder.”  Id. We give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Id.  Our duty is to ensure that the evidence presented actually supports a conclusion that the defendant committed the offense.  Id.

          We begin our factual sufficiency review with the assumption that the evidence is legally sufficient. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).  Evidence that is legally sufficient, however, can be deemed factually insufficient if (1) the evidence supporting the conviction is too weak to support the fact finder's verdict, or (2) considering conflicting evidence, the fact finder’s verdict is “against the great weight and preponderance of the evidence.”  Id.  We consider all of the evidence in a neutral light, as opposed to in a light most favorable to the verdict.  Id.  We recognize that the factfinder is in the best position to evaluate the credibility of witnesses, and we afford due deference to the factfinder’s determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).  We may only find the evidence factually insufficient when necessary to “prevent manifest injustice.”  Laster, 275 S.W.3d at 518. In such case, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly weighs against the verdict.  Id.

B.      The Law   

The Texas Penal Code provides that a person commits the offense of assault if (1) he intentionally, knowingly, or recklessly causes bodily injury to another, (2) he intentionally or knowingly threatens another with imminent bodily injury, or (3) he intentionally or knowingly causes physical contact with another when the person knows or should reasonably know that the other will regard the contact as offensive or provocative.  Tex. Penal Code Ann. § 22.01(a) (Vernon Supp. 2009).  An assault is aggravated if, inter alia, the actor uses or exhibits a deadly weapon during the commission of the offense.  Id. § 22.02(a)(2).

The Penal Code defines a “deadly weapon,” in pertinent part, as “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) (Vernon Supp. 2009).  “Serious bodily injury” is “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.  § 1.07(a)(46).

C.      Analysis

1.     Legal sufficiency

In his first point of error, appellant challenges the legal sufficiency of the evidence to support the deadly weapon element of his conviction for aggravated assault. 

In the court’s charge, the jury was given the definition of a deadly weapon and it was instructed that it could find appellant guilty of aggravated assault if it found that appellant caused injury to Guerrero “by using a deadly weapon, namely, a machete” or if it found that appellant caused injury to Guerrero “by using a deadly weapon, namely, a stick.”  Hence, if the jury believed that either the machete or the stick was capable of causing serious bodily injury, it could have found appellant guilty of aggravated assault.   

In determining whether the machete was a deadly weapon, that is, an object capable of causing death or serious bodily injury, we consider the following factors: the physical proximity of the parties; the threats or words used by the defendant; the size, shape, and sharpness of the weapon; the manner in which the defendant used the weapon; and the wounds inflicted on the victim.  See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); Wingfield v. State, 282 S.W.3d 102, 107 (Tex. App.—Fort Worth 2009, pet. ref’d); Garcia v. State, 17 S.W.3d 1, 4-5 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).  Either expert testimony or lay testimony may be sufficient to support a finding.  English v. State, 647 S.W.2d 667, 668-69 (Tex. Crim. App. 1983).

Here, the State presented evidence that appellant used a machete in the commission of the offense and that the machete was a deadly weapon.  Guerrero testified that appellant came into her home wielding a machete, that he was “upset” and yelling, and that he suddenly struck the bed with the machete.  Guerrero testified that appellant then struck her on her leg and waist, or her leg and chest, with the flat surface of the blade and that it hurt badly.  Guerrero testified that the machete was “long, new, and very sharp.”  A photograph of an area of Guerrero’s body, showing where she was struck by the machete, was admitted into evidence.         

Officer Rodriguez testified that the machete was approximately 18 inches long, had a 5-inch blade and a black handle, and looked relatively new.[1]  Officer Rodriguez testified that Guerrero told him how the machete was used on her and that, based on his training and experience, he considered the machete to be a deadly weapon.  See Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008) (considering police officer testimony probative as to whether deadly weapon was used).

Appellant contends that the machete was not a deadly weapon because he hit Guerrero with the flat of the blade and because he did not cause her serious bodily injury. 

A deadly weapon is an object that, in its manner of use or intended use, is “capable of causing death or serious bodily injury.”  Tex. Penal Code Ann. §1.07(a)(17) (emphasis added); Tucker, 274 S.W.3d at 691 (emphasizing that “the placement of the word ‘capable’ is crucial to understanding this method of determining deadly-weapon status”).   Hence, here, the State was not required to show, as appellant urges, that the machete actually caused serious bodily injury to Guerrero.  See Tucker, 274 S.W.3d at 691.  Rather, the State merely had to show that the machete was capable of causing serious bodily injury.  See id.

Officer Rodriguez testified that, based on the manner of appellant’s use, the machete was capable of causing serious bodily injury because it could have “easily just flipped the other way and . . . made some pretty major . . . injuries.”  The jury was free to accept or reject this testimony and to draw reasonable inferences.  See id.; Williams, 235 S.W.3d at 750.

Considering all of the evidence in the light most favorable to the verdict, and applying the factors listed above from Brown, we conclude that a rational trier of fact could have concluded that appellant used a deadly weapon, namely a machete, in the commission of the offense. See Tex. Penal Code Ann. § 22.02; Williams, 235 S.W.3d at 750;  Brown, 716 S.W.2d at 946; see also Cantu v. State, No. 04-03-00817-CR, 2004 WL 2168638, at *5 (Tex. App.—San Antonio Sep. 29, 2004, pet. ref’d) (mem. op., not designated for publication) (concluding that, although machete was never introduced at trial, testimony regarding its size and that appellant struck a nearby tree or table while making threats was sufficient to support deadly weapon finding). We hold that the evidence is legally sufficient to support appellant’s conviction.

Accordingly, we overrule appellant’s first point of error.

2.       Factual Sufficiency

In his second point of error, appellant challenges the factual sufficiency of the evidence to support the deadly weapon element of his conviction for aggravated assault.  Appellant advances the “same arguments advanced under Point of Error One” to contend that the machete, in its manner of use, was not a deadly weapon.      

As discussed in the analysis of the first point, the State was required to show that appellant used a machete and that it was a deadly weapon, that is, that it was capable of causing serious bodily injury.  See Tex. Penal Code Ann. §1.07(a)(17); Tucker, 274 S.W.3d at 691.

Guerrero testified that appellant came into her home wielding a machete, that he was “upset” and yelling, and that he struck her on her leg and waist, or on her leg and chest, with the machete.  Guerrero testified that the machete was “long, new, and very sharp.”  A photograph of an area of Guerrero’s body, showing where she was struck by the machete, was admitted into evidence. 

Officer Rodriguez testified that, based on his training and experience, he considered the machete to be a deadly weapon and that, based on the manner of appellant’s use, the machete was capable of causing serious bodily injury because it could have “easily just flipped the other way and . . . made some pretty major . . . injuries.” 

We again must give deference to the responsibility of the fact finder to fairly weigh evidence and to draw reasonable inferences from the facts.  See Marshall, 210 S.W.3d at 625. Considering all of the evidence in a neutral light, we cannot conclude that the evidence supporting the conviction is too weak to support the fact finder’s verdict or that the verdict is against the great weight and preponderance of the evidence.  Id.  

          Accordingly, we overrule appellant’s second point of error.

Conclusion

          We affirm the trial court’s judgment.

                                                          Laura Carter Higley

                                                          Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

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

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1           The machete was not introduced at trial; however, the State was not required to introduce it. Introducing a weapon into evidence assists the jury, but the jury may determine that the weapon was capable of causing death or serious bodily injury even if it is not in evidence.  English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983).  Here, the jury was free to accept or reject both Guerrero’s and Officer Rodriguez’s testimony that the machete existed and was used.  See Davis v. State, 177 S.W.3d 355, 358-59 (Tex. App.—Houston [1st Dist.] 2005, no pet.).