
                                          NO. 07-12-0044-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                          NOVEMBER 29, 2012




                                         SIMON FRANCIS, JR.,


                                                Appellant
                                                  v.


                                         THE STATE OF TEXAS,


                                                Appellee
                                    _____________________________

                           FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY;

                       NO. 50,898-A; HONORABLE ROBERT P. BROTHERTON, PRESIDING



                                          Memorandum Opinion



Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
      Simon Francis, Jr. pled guilty to two counts of robbery but went to trial before the  court  on
whether the robbery was aggravated.  The trial court found that it was, convicted him of both  counts
of aggravated robbery, and sentenced him to seventy-five years in prison on  each  count.   Appellant
now argues that the evidence is insufficient to find that the robbery was aggravated  as  alleged  in
the indictment.  We affirm.
      According to the record, appellant, “a large man,” attacked two  ladies  who  were  over  fifty
years old.  The two ladies were working at a retail establishment at  the  time.   The  first  to  be
attacked was Litteken.  Appellant entered the store, struck her with his fist or hand,  rendered  her
momentarily unconscious, placed his arm around her throat, squeezed  harder  when  she  attempted  to
scream, carried her by the waist into a back room,  and  shoved  her  away  upon  spying  his  second
victim.  The latter, Robey, was working in the back room when appellant entered  with  Litteken.   At
that point, appellant picked up an object and hit Robey with such force so as to break her  nose  and
the crowns of two teeth.  The blow also impaired Robey’s vision, which impairment  continued  through
the time of trial.
      Via the two counts in the indictment, the State accused appellant of aggravated  robbery.   The
first count involved the attack upon Litteken;  in  committing  the  robbery  he  allegedly  used  or
exhibited a deadly weapon, i.e. “his arms and hands, that in the manner of their use or intended  use
were capable of causing death or serious bodily injury.”  The second count involved the  attack  upon
Robey.  Not only was appellant accused of aggravated robbery by causing  her  serious  bodily  injury
but also by using or exhibiting a deadly weapon during the attack, i.e. “an unknown object [that]  in
the manner of its use or intended use was  capable  of  causing  death  or  serious  bodily  injury.”
Appellant would have us conclude that  the  evidence  of  record  failed  to  establish  any  of  the
aforementioned means by which the robbery was aggravated.  We overrule the issues.
      A deadly weapon is “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)(B)  (West  Supp.  2012).
This definition does not require the State to prove that anyone actually  died  or  suffered  serious
bodily injury or that the accused intended to cause serious bodily  injury.   Quincy  v.  State,  304
S.W.3d 489, 500 (Tex. App.–Amarillo 2009, no pet.); accord Baltazar v. State, 331 S.W.3d 6,  8  (Tex.
App.–Amarillo 2010, pet. ref’d).  Rather, it need only prove that the weapon in question was  capable
of causing serious bodily injury in the way it was used or intended to be used.  Baltazar  v.  State,
331 S.W.3d at 8.  Next, 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.”  Tex. Penal Code Ann. § 1.07(a)(46) (West Supp. 2012).
      Regarding appellant’s use of deadly weapons, we note the concession in appellant’s  brief  that
he was a “large” man.  Furthermore, both his victims  were  older  females.   In  addition  to  being
large, he was also quite strong, given his ability to knock out Litteken with  one  blow,  leave  her
with a concussion due to the single blow, carry her around by  her  waist,  and  hit  Robey  with  an
object of sufficient force to break crowns  and  her  nose.  That  he  also  placed  his  arm  around
Litteken’s throat and squeezed tighter when she attempted to yell says much as well.  According to  a
physician witness, a chokehold could “either close the airway long enough for the patient  to  suffer
serious bodily injury or death” or fracture the larynx.  Simply put, there was and is  some  evidence
of record enabling a rational factfinder to conclude, beyond reasonable  doubt,  not  only  that  the
manner of use or intended use of appellant’s hands and arms against Litteken were capable of  causing
death or serious bodily injury but also that the manner of use or intended use of  the  object  which
struck Robey was capable of the same.  See  Baltazar  v.  State,  331  S.W.3d  at  8-9  (finding  the
evidence sufficient to sustain a conviction for aggravated assault with  a  deadly  weapon  when  the
complainant suffered a bloody nose, bruises, abrasions, double vision, pain, a headache,  blurriness,
was briefly unconscious, and a doctor testified that the facial injury was serious).
      As for inflicting serious bodily injury upon Robey, her broken crowns, coupled with her  broken
nose and continued visual impairment were ample evidence to allow a rational factfinder  to  conclude
that the bodily injury she suffered involved, at the very least, “protracted loss  or  impairment  of
the function of [a] bodily member or organ.”  So, the evidence was sufficient to  prove  that  aspect
of aggravation as well.  Brown v. State, 605 S.W.2d 572,  575  (Tex.  Crim.  App.  1980)  (finding  a
broken nose serious bodily injury on the day it was inflicted even  though  the  effects  were  later
ameliorated by medical treatment).
      Accordingly, the judgments are affirmed.

                                  Per Curiam
Do not publish.


