TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00564-CR
Luis Sandoval, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. D-1-DC-15-302637, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
Following a bench trial, the trial court found appellant Luis Sandoval guilty of
aggravated assault and sentenced him to eight years’ imprisonment. See Tex. Penal Code § 22.02(a).
In a single appellate issue, Sandoval contends that the evidence was insufficient to support his
conviction. We will modify the trial court’s judgment of conviction and affirm the judgment as
modified.
BACKGROUND
At the bench trial, the State presented evidence that Sandoval assaulted Elmo
Bonner while the two men were inmates at the Travis County Jail. The State’s evidence showed that
Sandoval struck Bonner unexpectedly from behind and continued striking him until a guard pulled
Sandoval away. The State also presented evidence of the extent of Bonner’s injuries, including
photographs, a medical report, and Bonner’s testimony. Sandoval presented evidence that Bonner had previously threatened him and that “jail culture” required him to respond with violence. The
trial court found Sandoval guilty and sentenced him, and this appeal followed.
STANDARD OF REVIEW
In evaluating the sufficiency of the evidence supporting the trial court’s verdict in a
bench trial, we view the evidence in the light most favorable to the verdict and ask whether “‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks
v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010)). In a bench trial, the trial court “is the
sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony
given by State or defense witnesses.” Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App.
[Panel Op.] 1978); see also Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Valencia
v. State, No. 03-16-00723-CR, 2017 WL 1832461, at *4 (Tex. App.—Austin May 3, 2017, no pet. h)
(mem. op., not designated for publication).
DISCUSSION
Sandoval’s indictment included two counts. The first count alleged that Sandoval
committed aggravated assault by using or exhibiting a deadly weapon, “to-wit: his hand and fist and
foot,” while causing bodily injury to Bonner, and the second count alleged that Sandoval committed
aggravated assault by causing serious bodily injury to Bonner. However, the State correctly argues
in its appellate brief that, despite the term “count,” the indictment must be understood to allege the
commission of a single offense—aggravated assault—and to present two alternative means of
committing that offense: (1) use or exhibition of a deadly weapon and (2) causing serious bodily
2 injury. See Landrian v. State, 268 S.W.3d 532, 539 (Tex. Crim. App. 2008) (“[T]he aggravating
factors or elements are simply descriptions of separate means by which a single offense of assault
may be committed.”); id. at 540 (“[O]nce the underlying type of assault is defined, then either of the
aggravating factors set out under Section 22.02(a) may elevate that distinct assaultive crime to a
second-degree felony. The aggravating factors or elements are simply the way in which the simple
assault becomes a more serious offense.”). Here, the trial court found that Sandoval had committed
aggravated assault both by using or exhibiting a deadly weapon and by causing serious bodily injury.
On appeal, Sandoval challenges the sufficiency of both of those findings.
The Texas Penal Code defines “deadly weapon” as “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 § 1.07(a)(17). The Penal Code defines “serious bodily injury” as “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). Although a
person’s body parts are not necessarily deadly weapons, they may be so depending on the manner
of their use. See Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004) (“We have recognized
before that a hand or a foot may be a deadly weapon within the meaning of § 1.07(a)(17) ‘depending
upon the evidence shown.’”) (quoting Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983));
Collins v. State, No. 07-15-00180-CR, 2017 WL 1632675, at *3 (Tex. App.—Amarillo Apr. 26,
2017, pet. filed) (mem. op., not designated for publication); Palacio v. State, No. 03-14-00654-CR,
2016 WL 6575228, at *2 (Tex. App.—Austin Oct. 31, 2016, pet. ref’d) (mem. op., not designated
for publication) (“[B]ody parts, such as hands, may be deadly weapons based on their manner of
3 use or intended use and their capacity to produce death or serious bodily injury.”); but see Davis v.
State, Nos. 13-15-00355-CR, 13-15-00356-CR, 2017 WL 2375764, at *5 n.5 (Tex. App.—Corpus
Christi June 1, 2017, no pet. h.) (stating that “Texas is in the minority of states allowing body parts
to be considered dangerous or deadly weapons” and opining, “We generally observe that under
the available analytical framework for reviewing a deadly weapon finding, the line between a
misdemeanor assault and an aggravated assault is difficult to define when a defendant is alleged to
have used only his hands.”). “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 injury; (5) the manner in which the defendant used
the weapon; and (6) the nature of the wounds inflicted.” Palacio, 2016 WL 6575228, at *2.
Here, the State presented evidence that Sandoval attacked Bonner unexpectedly from
behind. The trial court also heard evidence that Sandoval intended his attack to incapacitate Bonner
and prevent Bonner from responding. For example, the following exchange occurred at trial:
[Prosecutor:] But you wanted to make sure that he was incapacitated so he couldn’t get up and fight you, right?
[Sandoval:] Definitely.
***
[Prosecutor:] So in the context of that, you didn’t want to just make contact with him and do one punch and you’re done; you wanted to make sure he was down for the count?
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00564-CR
Luis Sandoval, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. D-1-DC-15-302637, HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
Following a bench trial, the trial court found appellant Luis Sandoval guilty of
aggravated assault and sentenced him to eight years’ imprisonment. See Tex. Penal Code § 22.02(a).
In a single appellate issue, Sandoval contends that the evidence was insufficient to support his
conviction. We will modify the trial court’s judgment of conviction and affirm the judgment as
modified.
BACKGROUND
At the bench trial, the State presented evidence that Sandoval assaulted Elmo
Bonner while the two men were inmates at the Travis County Jail. The State’s evidence showed that
Sandoval struck Bonner unexpectedly from behind and continued striking him until a guard pulled
Sandoval away. The State also presented evidence of the extent of Bonner’s injuries, including
photographs, a medical report, and Bonner’s testimony. Sandoval presented evidence that Bonner had previously threatened him and that “jail culture” required him to respond with violence. The
trial court found Sandoval guilty and sentenced him, and this appeal followed.
STANDARD OF REVIEW
In evaluating the sufficiency of the evidence supporting the trial court’s verdict in a
bench trial, we view the evidence in the light most favorable to the verdict and ask whether “‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks
v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010)). In a bench trial, the trial court “is the
sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony
given by State or defense witnesses.” Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App.
[Panel Op.] 1978); see also Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Valencia
v. State, No. 03-16-00723-CR, 2017 WL 1832461, at *4 (Tex. App.—Austin May 3, 2017, no pet. h)
(mem. op., not designated for publication).
DISCUSSION
Sandoval’s indictment included two counts. The first count alleged that Sandoval
committed aggravated assault by using or exhibiting a deadly weapon, “to-wit: his hand and fist and
foot,” while causing bodily injury to Bonner, and the second count alleged that Sandoval committed
aggravated assault by causing serious bodily injury to Bonner. However, the State correctly argues
in its appellate brief that, despite the term “count,” the indictment must be understood to allege the
commission of a single offense—aggravated assault—and to present two alternative means of
committing that offense: (1) use or exhibition of a deadly weapon and (2) causing serious bodily
2 injury. See Landrian v. State, 268 S.W.3d 532, 539 (Tex. Crim. App. 2008) (“[T]he aggravating
factors or elements are simply descriptions of separate means by which a single offense of assault
may be committed.”); id. at 540 (“[O]nce the underlying type of assault is defined, then either of the
aggravating factors set out under Section 22.02(a) may elevate that distinct assaultive crime to a
second-degree felony. The aggravating factors or elements are simply the way in which the simple
assault becomes a more serious offense.”). Here, the trial court found that Sandoval had committed
aggravated assault both by using or exhibiting a deadly weapon and by causing serious bodily injury.
On appeal, Sandoval challenges the sufficiency of both of those findings.
The Texas Penal Code defines “deadly weapon” as “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 § 1.07(a)(17). The Penal Code defines “serious bodily injury” as “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). Although a
person’s body parts are not necessarily deadly weapons, they may be so depending on the manner
of their use. See Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004) (“We have recognized
before that a hand or a foot may be a deadly weapon within the meaning of § 1.07(a)(17) ‘depending
upon the evidence shown.’”) (quoting Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983));
Collins v. State, No. 07-15-00180-CR, 2017 WL 1632675, at *3 (Tex. App.—Amarillo Apr. 26,
2017, pet. filed) (mem. op., not designated for publication); Palacio v. State, No. 03-14-00654-CR,
2016 WL 6575228, at *2 (Tex. App.—Austin Oct. 31, 2016, pet. ref’d) (mem. op., not designated
for publication) (“[B]ody parts, such as hands, may be deadly weapons based on their manner of
3 use or intended use and their capacity to produce death or serious bodily injury.”); but see Davis v.
State, Nos. 13-15-00355-CR, 13-15-00356-CR, 2017 WL 2375764, at *5 n.5 (Tex. App.—Corpus
Christi June 1, 2017, no pet. h.) (stating that “Texas is in the minority of states allowing body parts
to be considered dangerous or deadly weapons” and opining, “We generally observe that under
the available analytical framework for reviewing a deadly weapon finding, the line between a
misdemeanor assault and an aggravated assault is difficult to define when a defendant is alleged to
have used only his hands.”). “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 injury; (5) the manner in which the defendant used
the weapon; and (6) the nature of the wounds inflicted.” Palacio, 2016 WL 6575228, at *2.
Here, the State presented evidence that Sandoval attacked Bonner unexpectedly from
behind. The trial court also heard evidence that Sandoval intended his attack to incapacitate Bonner
and prevent Bonner from responding. For example, the following exchange occurred at trial:
[Prosecutor:] But you wanted to make sure that he was incapacitated so he couldn’t get up and fight you, right?
[Sandoval:] Definitely.
***
[Prosecutor:] So in the context of that, you didn’t want to just make contact with him and do one punch and you’re done; you wanted to make sure he was down for the count?
[Sandoval:] Yes.
4 In addition, the State presented evidence that Bonner’s injuries were severe. The
State presented testimony that Sandoval knocked Bonner unconscious and then continued attacking
him until a corrections officer pulled Sandoval away. One witness testified, “There was a lot of
blood. The floor was covered in blood.” The State presented photographs showing Bonner and the
floor splattered with blood. Bonner gave the following testimony about his injuries:
I had—my eye was big. I lost a couple of teeth. Memory, I can’t hardly remember now. I can’t hardly see. All my teeth are loose—still loose.
He broke some—bone fractures around my eye.
He broke my nose, too.
The State also presented Bonner’s hospital records, which indicate that Bonner sustained a “[r]ight
orbital fracture,” “[n]asal bone fractures,” a “[l]eft maxillary sinus fracture,” and a “[l]eft alveolar
ridge fracture.” These records also indicate that Bonner underwent “closed reduction and splinting
of bilateral nasal bone fractures.”
Viewing the evidence in the light most favorable to the verdict, we conclude, given
the nature of the assault and the severity of Bonner’s injuries, that sufficient evidence supports the
trial court’s deadly-weapon finding. See Collins, 2017 WL 1632675, at *3–4 (holding evidence
sufficient to support jury’s finding that defendant used his foot as a deadly weapon, where jury heard
evidence that defendant kicked complainant, complainant lost consciousness, complainant lost teeth,
and witnesses saw complainant in a “pool of blood”). Therefore, we also conclude that sufficient
evidence supports the conviction for aggravated assault. See Tex. Penal Code § 22.02(a)(2) (assault
5 is aggravated if actor “uses or exhibits a deadly weapon during the commission of the assault”).
Accordingly, we overrule Sandoval’s sole appellate issue.
Finally, the State contends that we should reform the trial court’s judgment to reflect
that Sandoval was convicted of aggravated assault under Texas Penal Code section 22.02(a) “without
specifying a count.” As discussed above, the State is correct that Sandoval’s indictment alleged a
single offense—aggravated assault—and that the State could establish either the use or exhibition
of a deadly weapon or serious bodily injury as the aggravating factor. Therefore, we will modify the
judgment to eliminate the specification of “Count I” and to change the “Statute for Offense” to
“Penal Code 22.02(a).” See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993).
CONCLUSION
We modify the trial court’s judgment of conviction to eliminate the specification of
“Count I” and to change the “Statute for Offense” to “Penal Code 22.02(a).” We affirm the trial
court’s judgment of conviction as modified.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Field and Bourland
Modified and, as Modified, Affirmed
Filed: August 2, 2017
Do Not Publish