Opinion filed June 6, 2013




                                        In The


        Eleventh Court of Appeals
                                       __________

                                 No. 11-11-00169-CR
                                       _________

                        SONNY D. SILVAS, Appellant

                                          V.

                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 70th District Court
                                  Ector County, Texas
                             Trial Court Cause No. A-37,468



                      MEMORANDUM OPINION
      The jury convicted Sonny D. Silvas of aggravated assault with a deadly
weapon and assessed his punishment at confinement for a term of thirty-five years
in the Institutional Division of the Texas Department of Criminal Justice. The jury
additionally assessed a fine of $10,000. In a single issue, Appellant challenges the
sufficiency of the evidence to support his conviction. We affirm.
                                 Background Facts
      Elvia Reyes testified that she had known Appellant for a long time and had
dated him for several years. They moved into an apartment at the Peppertree
Apartments. On October 4, 2009, Reyes and Appellant got into an argument.
During the course of the argument, Appellant retrieved a metal pipe from the
bathroom and swung it at Reyes’s head. Reyes testified that the pipe would have
hit her in the head if she had not ducked when he swung it. She further testified
that Appellant’s act of swinging the pipe at her head scared her “a lot.” Lucy
Aguirre, the manager of the apartment complex, subsequently observed Appellant
dragging Reyes by her hair as Reyes attempted to leave the apartment. Aguirre
also heard Appellant threaten to shoot Reyes’s parents’ house if she told anyone
that he had hit her.
                                Standard of Review
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—
Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
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record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
                                      Analysis
      The indictment alleged that Appellant intentionally and knowingly
threatened Reyes by swinging a metal pipe at her head. The indictment further
alleged that he used or exhibited a deadly weapon during the commission of the
assault. On appeal, Appellant challenges the sufficiency of the evidence in two
respects. He initially contends that there is no evidence of his intent to commit the
charged offense. Appellant also asserts that there is no evidence that the metal
pipe constituted a deadly weapon. We disagree.
      A person commits an assault by threat if he intentionally or knowingly
threatens another with imminent bodily injury.           TEX. PENAL CODE ANN.
§ 22.01(a)(2) (West 2011). An assault by threat requires proof that one acts with
intent to cause a reasonable apprehension of imminent bodily injury. Garrett v.
State, 619 S.W.2d 172, 173 (Tex. Crim. App. 1981); Torres v. State, 905 S.W.2d
440 (Tex. App.—Fort Worth 1995, no pet.). A threat may be communicated by
action or conduct as well as by words. McGowan v. State, 664 S.W.2d 355, 357
(Tex. Crim. App. 1984).
      Appellant contends that the evidence of his intent is insufficient because it
only came from Reyes and because her testimony was contradictory. As noted
previously, we presume that the jury resolved any conflicts in the evidence in favor
of the prosecution, and we defer to that determination in conducting our review of
the evidence. Reyes testified that Appellant swung at her head with a metal pipe.
Additionally, Reyes testified that she felt threatened by this violent act. Viewing
this evidence in the light most favorable to the verdict, we conclude that a rational
trier of fact could have reasonably inferred that Appellant placed Reyes in
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apprehension of imminent bodily injury. In this regard, the trier of fact may infer
intent from the acts, words, and conduct of the defendant. Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004); Manrique v. State, 994 S.W.2d 640, 649
(Tex. Crim. App. 1999).
      An assault is elevated to an aggravated assault if the person uses or exhibits
a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN.
§ 22.02(a)(2) (West 2011). The Penal Code defines a deadly weapon as (A) a
firearm or anything manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury or (B) 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) (West Supp. 2012). Sergeant Chris Primeaux, a
thirteen-year veteran of the Odessa Police Department, testified that the pipe was
capable of causing serious bodily injury or death. Sergeant David Lara, another
veteran Odessa police officer, also testified that the pipe could be used as a deadly
weapon.    This testimony constituted sufficient evidence to support the jury’s
determination that the pipe was a deadly weapon. Tucker v. State, 274 S.W.3d
688, 692 (Tex. Crim. App. 2008) (Police officers may be considered experts in
what is considered to be a deadly weapon.). Appellant’s sole issue is overruled.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     TERRY McCALL
June 6, 2013                                         JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.

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