      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00654-CR



                                     James Palacio, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
       NO. D-1-DC-14-904021, HONORABLE JIM CORONADO, JUDGE PRESIDING



                             MEMORANDUM OPINION

               A jury found appellant James Palacio guilty of aggravated assault with serious bodily

injury using a deadly weapon and involving family violence. See Tex. Penal Code § 22.02(b)(1).

Appellant pleaded “true” to an enhancement paragraph alleging a prior felony conviction, and the

jury assessed punishment at thirty years’ imprisonment. See id. §§ 12.32, 12.42. In a single issue,

appellant contends that the evidence is insufficient to show that he used or exhibited a deadly

weapon in the commission of the offense. We will affirm the trial court’s judgment of conviction.


                                         BACKGROUND

               The record shows that appellant and a woman named Nicole McKee had dated each

other and had a child together.1 On January 30, 2013, appellant called 911 from his home, and when




       1
         Because we must discuss the facts of this case in detail below in order to address appellant’s
sufficiency challenge, we limit our recitation of the facts here.
emergency personnel arrived at the home, they found McKee unresponsive and with extensive

bruising on her body. McKee died later that day, and a medical examiner’s testimony and

photographs admitted into evidence at trial show that McKee had bruises on most parts of her body

and more than twenty rib fractures. The medical examiner testified that her cause of death was

“complications of blunt force chest injuries.”

                In interviews with detectives after McKee was transported to the hospital, appellant

stated that he and McKee had been separated but that she had come back to his home to live with

him and their child three days earlier. He initially stated that McKee was a heroin addict and that

she left the home several times during the previous three days to use heroin, but he later changed his

story, saying that he had not let her leave during the three days because he did not want her to use

heroin. He admitted to physically taking hold of her on several occasions and to potentially causing

injury to her ribs by falling on her.

                After hearing the evidence, a jury convicted appellant of aggravated assault causing

serious bodily injury using a deadly weapon and involving family violence. Appellant pleaded “true”

to an enhancement allegation, and the jury assessed, and the trial court imposed, a thirty-year prison

sentence. This appeal followed.


                                           DISCUSSION

                Appellant contends that his conviction is unsupported by the evidence because the

evidence is insufficient to prove that he used a deadly weapon in the commission of the offense.

When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence

in the light most favorable to the verdict to determine whether, based on that evidence and the

                                                  2
reasonable inferences that can be drawn from it, any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our analysis, we

assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We may not substitute our judgment for that of the

jury by reevaluating the weight and credibility of the evidence. See King v. State, 29 S.W.3d 556,

562 (Tex. Crim. App. 2000). The jury alone decides whether to believe eyewitness testimony, and

it resolves any conflicts in the evidence. See Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App.

2007). We consider only whether the jury reached a rational decision. See Isassi, 330 S.W.3d at 638

(“Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not

act rationally.” (quoting Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009))).

               Legal sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim.

App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically

correct jury charge is one that ‘accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.’” Id.

(quoting Malik, 953 S.W.2d at 240). The law as authorized by the indictment means the statutory

elements of the charged offense as modified by the factual details and legal theories contained in the

indictment. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013).



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                The statute under which appellant was convicted states the following, in relevant part:


        (a)     A person commits an offense if the person commits assault as defined in
                § 22.01 and the person:

                (1)     causes serious bodily injury to another, including the person’s
                        spouse; or

                (2)     uses or exhibits a deadly weapon during the commission of
                        the assault.

        (b)     An offense under this section is a felony of the second degree, except that the
                offense is a felony of the first degree if:

                (1)     the actor uses a deadly weapon during the commission of the assault
                        and causes serious bodily injury to a person whose relationship to or
                        association with the defendant is described by Section 71.0021(b)
                        [dating relationship], 71.003 [family relationship], or 71.005
                        [household member], Family Code.


Tex. Penal Code § 22.02.

                The indictment in this case alleged that appellant:


        intentionally, knowingly, or recklessly cause[d] bodily injury to Nicole McKee, a
        member of [appellant’s] family or household and with whom [appellant] had a dating
        relationship, by striking Nicole McKee with his hand, and by pushing Nicole McKee
        with his hand, and by grabbing Nicole McKee with his hand, and by grabbing Nicole
        McKee with his arm, and by pushing Nicole McKee with his body, and by striking
        Nicole McKee with his body, and by causing Nicole McKee to fall to the ground, and
        [appellant] did then and there use or exhibit a deadly weapon, to-wit: a hand, an arm,
        a body, and the ground, which in the manner of its use or intended use was capable
        of causing death or serious bodily injury, during the commission of said offense.


               A “deadly weapon” is defined as “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). In order to sustain a



                                                  4
deadly-weapon finding, the evidence must demonstrate that: (1) the object meets the definition of

a deadly weapon; (2) the deadly weapon was used or exhibited during the transaction on which the

felony conviction was based; and (3) other people were put in actual danger. Brister v. State,

449 S.W.3d 490, 494 (Tex. Crim. App. 2014). Objects that are not usually considered dangerous

weapons may become so, depending on the manner in which they are used during the commission

of an offense. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). For example, body

parts, such as hands, may be deadly weapons based on their manner of use or intended use and their

capacity to produce death or serious bodily injury. See Lane v. State, 151 S.W.3d 188, 191 (Tex.

Crim. App. 2004); Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. 1983).

               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. See, e.g., Lane, 151 S.W.3d at 191; Dominique v. State,

598 S.W.2d 285, 286 (Tex. Crim. App. 1980); Kennedy v. State, 402 S.W.3d 796, 802 (Tex.

App.—Fort Worth 2013, pet. ref’d); Bailey v. State, 46 S.W.3d 487, 491–92 (Tex. App.—Corpus

Christi 2001, pet. ref’d); Lozano v. State, 860 S.W.2d 152, 156 (Tex. App.—Austin 1993, pet. ref’d);

see also Brown v. State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986). No one factor is

determinative, and each case must be examined on its own facts. See Brown, 716 S.W.2d at 946–47.

               Considering the foregoing factors, and reviewing all of the evidence in the light most

favorable to the verdict, we conclude that the record contains sufficient evidence to support the jury’s



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deadly-weapon finding. To begin with, there is evidence showing that McKee was uninjured before

she went to appellant’s home and that appellant was angry with her and wanted her to come to his

home for several days before she arrived there. Specifically, a manager at a restaurant where McKee

worked testified that the last day she worked before she died was January 27, 2013. He testified that

he also worked that day, that he did not see any injuries on her body, that she did not complain about

pain, and that she was able to physically conduct her job duties. He testified that she seemed

distracted, however, and was “constantly” on her phone, so he sent her home early that day.

               In text messages between appellant and McKee in the days leading up to her arrival

at his home that were admitted into evidence at trial, appellant sent messages such as: “Now you

Fuck up get here now nikky before it gets real bad now,” “the longer I wait the more you going to get

nikky on everything I love,” “You going to get it,” “Hope you take longer take longer just wait keep

it up nikky. Ignore me to,” “I know if you don’t come now nikky you not be happy at all with me,”

“Know what you do come now I am going up to your work today and you ain’t going to like it nikky.”

Some of McKee’s responses to his messages include the following: “I know as soon there I’m gonna

get my ass kicked,” “And I deserve it but I’m sorry,” “K Daddy I’ll come home but please be nice,”

“I’ll come now please don’t be mean,” “I’m scared jp I know it u mad j don’t want u to be meant.”

               The record shows that appellant called 911 from his home on January 30, 2013. A

paramedic who responded to the call testified that firefighters were already at the scene performing

CPR on McKee when he arrived. He testified that the firefighters informed him that when they

arrived, McKee “was unresponsive and pulseless, not breathing.” He further testified that he noted

on his report that she had “numerous deep, black-and-blue bruises about her entire body.” A detective



                                                  6
who went to the hospital after McKee was transported there testified that he stayed at the hospital for

“several hours” and that the doctors “were losing [her] pulse several times and had to revive her

several times.” He testified that McKee died later that night. He further testified that a hand, arm,

body, or the ground could be a deadly weapon if they were used in a manner capable of causing death

or serious bodily injury.

                The medical examiner who conducted an autopsy on McKee testified that she had

numerous bruises on her body. Specifically, photographs taken by the medical examiner and his

report show that McKee had bruises on her head, shoulders, back, arms, chest, stomach, buttocks, and

the front and back of both of her legs. The medical examiner further testified that McKee had eleven

fractures to her ribs on the left side of her body, including one “floating rib,” which he testified was

“when you have a fracture of a rib in two spots so it’s literally just floating.” He testified that McKee

also had eleven fractures to her ribs on the right side of her body, including three “floating ribs.” He

testified that a person with McKee’s rib injuries “would have difficulty breathing” and be in “a lot

of pain.” He further testified that he “wouldn’t expect too much mobility” because “any time [the

person] took a breath in it’s going to hurt.”            He testified that McKee had morphine,

methamphetamine, and promethazine in her body but no heroin. McKee’s cause of death, according

to the medical examiner’s testimony, was “complications of blunt force chest injuries.” The medical

examiner further testified that “pretty much anything” could be a deadly weapon if used in a manner

capable of causing death or serious bodily injury, including hands, arms, a body, or the ground.

                In appellant’s first interview with detectives, he stated that McKee was a heroin addict

and had come to his house three days earlier but had left multiple times to get heroin. Later in the



                                                   7
interview, he admitted that he had lied about her leaving, stating that she never left the house in the

three days she was there. He said that she had asked him to help her stop using heroin and that he had

physically kept her from leaving his home so that she would not use heroin. He also said that he gave

her numerous drugs during the three days she was there, including morphine, methamphetamine, and

promethazine (the same ones found in her body at her autopsy), in an attempt to get her to stop using

heroin. Appellant further told police that he was six feet four inches tall and weighed about 198

pounds. The medical examiner testified that McKee was about five feet two inches tall and weighed

145 pounds.

               Further specific statements made by appellant during his first interview with detectives

include the following: he physically tried to keep McKee from leaving his house several times during

the previous few days; he “landed on top of her a couple times”; landing on top of her was “probably

when she hurt her chest”; he was “grabbing her, trying to hold her down”; he held her, they went to

the ground, they “hit stuff, walls”; he was bear hugging her and held her “probably too hard”; he fell

on top of her, and she was having trouble breathing after that; she told his mother (with whom he

lived) that he would not let her leave and that he was holding on to her and hitting her too much; he

“might have held her a little too hard, went to the ground, rolled around, bumped here, bumped

there”; and she “hit the floor real hard.”

               In the detectives’ second interview of appellant, which occurred at appellant’s house,

appellant made the following statements: “she could have hit her head here, here, here [in the

bathroom]” while he tried to hold her down; he “grabbed her and helped give all the bruises”; she was

“complaining about her ribs” and she said “[he] broke some when [they] hit the ground”; after they



                                                  8
hit the ground, “she gasped, she was having trouble breathing”; she said her ribs “felt broken”; he

listened to her chest and “could hear [her ribs] moving”; he “heard something [when she breathed],

so [he thought] something was wrong with her lungs”; and “it sounded like she couldn’t breathe

because [he] fell on her.” He further stated that “[i]t happened here [outside the home], and it

happened over here, and once in the house . . . it happened three times”; that he grabbed her, “[they]

went down,” and then his “elbow went up into her chest like that . . . this is when she started

complaining about it . . . said she was having trouble breathing . . . then I listened to her, it sounded

like she was having trouble breathing . . . I thought it was the drugs, so we went on and let it go, went

on, let it go”; that “it felt like [her ribs] move[d]”; that the injuries were “because [of] landing on top,

all that weight, force going down, she’s a little bitty girl”; that he “probably held her a little too hard”;

and that he thought the cause of death “was because of the ribs . . . when we fell, she started

complaining right afterwards . . . she said she couldn’t breathe, and I just thought she was doing that

so, you know, she could get out of the house.”

                Appellant also stated that the first altercation, which he said was the one that caused

the rib injuries, occurred early in the day on Tuesday, which was the day before he called 911. In

reference to her difficulty breathing and complaints about her ribs, he said that “she’d been like that

for a couple days” before he called 911. He said that the “pills were covering up the pain,” but that

McKee complained Tuesday night and that he said, “Alright, we’ll go [to the hospital],” but then he

“was tired and went to sleep.” He said he was going to take her to the hospital on Wednesday but that

she “fell out.” He said “she tried to get back up, but then she fell down again.”




                                                     9
               Considering all of the evidence in the light most favorable to the verdict —including

the text messages sent between appellant and McKee in the days before she returned to his home, the

multitude of rib fractures and bruises on McKee’s body at the time of her death, the medical

examiner’s conclusion that the cause of McKee’s death was complications from blunt force chest

injuries, the medical examiner and detective’s testimony that a hand, arm, body, or the ground could

be a deadly weapon if used in a manner capable of causing death or serious bodily injury, the evidence

that appellant was considerably larger than McKee, and appellant’s admissions that he “bear-hugged”

McKee, that he physically kept her from leaving his home for three days, that he fell on top of her and

physically struggled with her on at least three separate occasions, that his elbow went into her chest

when he fell on her, that she gasped and had trouble breathing after that, that he listened to her chest

and could hear her ribs moving, that she complained about the pain, and that the rib injuries occurred

at least twenty-four hours before he called 911—and considering the reasonable inferences that can

be drawn from that evidence, we conclude that the jury could have found beyond a reasonable doubt

that appellant used his hand, arm, body, or the ground as a deadly weapon during the commission of

an assault on McKee. See Tex. Penal Code § 1.07(a)(17)(B); Jackson, 443 U.S. at 319; Temple,

390 S.W.3d at 360; Drichas, 175 S.W.3d at 798; Lane, 151 S.W.3d at 191–92; Turner,

664 S.W.2d at 90; Brantley v. State, No. 05-13-00225-CR, 2014 WL 545514, at *3–4 (Tex.

App.—Dallas Feb. 10, 2014, no pet.) (mem. op., not designated for publication); Quincy v. State,

304 S.W.3d 489, 500–01 (Tex. App.—Amarillo 2009, no pet.); Goode v. State, No. 03-10-00254-CR,

2011 WL 477038, at *5 (Tex. App.—Austin Feb. 9, 2011, no pet.) (mem. op., not designated for

publication); Hemphill v. State, No. 08-03-00054-CR, 2004 WL 722247, at *4–5 (Tex. App.—El



                                                  10
Paso Apr. 1, 2004, pet. ref’d) (mem. op., not designated for publication). Accordingly, we overrule

appellant’s sole issue.


                                        CONCLUSION

               We affirm the trial court’s judgment of conviction.



                                                     _______________________________
                                                     Cindy Olson Bourland, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: October 31, 2016

Do Not Publish




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