                                   NO. 07-06-0034-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   JUNE 1, 2006
                          ______________________________

                                  JEFFREY BRINSON,

                                                             Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

       FROM THE 100TH DISTRICT COURT OF COLLINGSWORTH COUNTY;

                     NO. 2553; HON. DAVID MCCOY, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Jeffrey Brinson was convicted of aggravated assault with a deadly weapon. He

argues on appeal that the evidence is legally and factually insufficient to show that the

pavement against which he struck the victim’s head was a deadly weapon. We overrule

the issue and affirm the judgment of the trial court.

       The standards by which we review the legal and factual sufficiency of the evidence

are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004),

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556

(Tex. Crim. App. 2000) for an explanation of them.

        Next, when a person is charged with using a deadly weapon, the evidence must

establish that the instrument used was actually deadly. Lockett v. State, 874 S.W.2d 810,

814 (Tex. App.–Dallas 1994, pet. ref’d). Furthermore, the Penal Code defines a “deadly

weapon” 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 . PEN . CODE ANN .

§1.07(a)(17)(A) & (B) (Vernon Supp. 2005). While asphalt pavement may not be a deadly

weapon per se, it may be shown to be so via evidence of its manner of use or intended use

and its capacity to produce death or serious bodily injury. Additionally, evidence of threats

or words used by the assailant may be considered. Nash v. State, 175 S.W.3d 427, 430

(Tex. App.–Texarkana 2005, pet. ref’d); Bailey v. State, 46 S.W.3d 487, 491 (Tex.

App.–Corpus Christi 2001, pet. ref’d). Finally, while expert testimony regarding the deadly

nature of an object may be offered, it is not required. English v. State, 647 S.W.2d 667,

668-69 (Tex. Crim. App. 1983).

        Appellant argues that the evidence is insufficient because it does not show injury

or that the use of the pavement could have caused death or serious bodily injury.1 We

initially note that the weapon need not actually cause death or serious bodily injury to be



        1
         The indictment also alleged that bodily injury was caused by appellant choking the victim and that
he used a deadly weapon to do so, nam ely his hands. Appellant does not contest whether his hands were
use d as a deadly we apo n.

                                                    2
classified as deadly. It is enough simply to show that its use or intended use had the

capability of causing same. English v. State, 171 S.W.3d 625, 628 (Tex. App.–Houston

[14th Dist.] 2005, no pet.). Additionally, the record shows that 1) appellant had choked the

victim with his hands to such a degree that she could not breathe, 2) appellant then threw

her on the ground, climbed atop her, put his hands on her ears, and slammed her head

into the pavement, 3) while doing so, he told her he was going to kill her and she believed

that he would, and 4) she had bruises and a knot on her head and was diagnosed with a

concussion as a result of the incident. This is some evidence from which a jury could have

rationally concluded beyond reasonable doubt that the pavement (as used by appellant)

was capable of causing serious bodily injury or death, and such a conclusion would not

undermine our confidence in the proceeding when tested against the entire record. See

English v. State, 171 S.W.3d at 628 (holding that the evidence was sufficient to show that

an aluminum baseball bat was used as a deadly weapon when it was swung with full force

at the victim’s head causing pain, a gash, bruising, swelling, and a concussion, the victim

was extremely afraid, and the defendant told the victim he intended to kill him).

       Consequently, we affirm the judgment of the trial court.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




                                             3
