                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-07-00381-CR

RICHARD TYRONE BAILEY,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2007-236-C1


                          MEMORANDUM OPINION


      A jury convicted Richard Tyrone Bailey of aggravated assault and sentenced him

to twenty-seven years in prison. In two points of error, Bailey challenges the legal and

factual sufficiency of the evidence to support his conviction. We affirm.

                              FACTUAL BACKGROUND

      Ronnie Harris is an MHMR patient and the teenage son of Bailey’s wife Betty.

On the night of the offense, Bailey and Harris began arguing about Harris entering the

Baileys’ apartment through a window after being told not to do so. Bailey threatened to
shoot Harris if he again entered through the window. The argument escalated into a

fist fight in the kitchen. Bailey struck Harris with a skillet three or four times.1

        Betty was in the restroom during the argument. She found Bailey and Harris

entangled, pulled the two men apart, and drove Harris to his grandmother’s house.

Harris’s uncle, Joseph McDonald, was present when Harris and Betty arrived. Harris

told McDonald that Bailey struck him in the head with a skillet. Harris then passed out.

McDonald testified that Harris had a knot on the back of his head and was mumbling.

He testified that Betty told the 9-1-1 dispatcher that Bailey struck Harris with a skillet.

        Betty denied seeing Bailey strike Harris with a skillet.                      She did not recall

speaking to the 9-1-1 dispatcher, but if she had, she would have merely repeated what

Harris told her: that Bailey struck him with the skillet. She believed that Bailey was the

aggressor and Harris was defending himself.

        Harris was bleeding when Officer Maria Bucher arrived. Bucher testified that

Harris was not cooperative because of his injuries and the pain. Harris testified that he

felt “woozy.” Betty told Bucher that Bailey struck Harris with the skillet as she and

Harris were leaving the house. Betty did not tell Bucher that she was in the restroom

during the fight or that the skillet incident had been relayed to her by Harris. Bailey

told Bucher that if Harris had any injuries they resulted from Harris falling. Bailey

wanted to press charges against Harris, but could not show that he had been injured or

provide sufficient information to enable Bucher to file charges.




1       Medical records reflect that Harris claimed to have been struck five times.


Bailey v. State                                                                                   Page 2
        Betty testified that she owns a cast iron skillet, which was on the stove when she

returned from the restroom and encountered the fight. She saw the skillet on the day of

the offense, but did not know where it is now. The skillet was never recovered.

                               STANDARDS OF REVIEW

        Under legal sufficiency review, we determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Curry v. State,

30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19,

99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or

assign credibility to the witnesses, as this was the function of the trier of fact. See

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Adelman v. State, 828

S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.

App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry,

30 S.W.3d at 406; Matson, 819 S.W.2d at 843.

        Under factual sufficiency review, we ask whether a neutral review of all the

evidence demonstrates that the proof of guilt is so weak or that conflicting evidence is

so strong as to render the jury’s verdict clearly wrong and manifestly unjust. Watson v.

State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11

(Tex. Crim. App. 2000). We review the evidence weighed by the jury that tends to

prove the existence of the elemental fact in dispute and compare it with the evidence

that tends to disprove that fact.     Johnson, 23 S.W.3d at 7.     We do not indulge in




Bailey v. State                                                                       Page 3
inferences or confine our view to evidence favoring one side. Rather, we look at all the

evidence on both sides and then make a predominantly intuitive judgment. Id.

                                            ANALYSIS

        A person commits aggravated assault if he intentionally, knowingly, or

recklessly causes bodily injury to another and uses or exhibits a deadly weapon during

commission of the assault. See TEX. PEN. CODE ANN. § 22.01 (Vernon Supp. 2008); see also

TEX. PEN. CODE ANN. § 22.02 (Vernon Supp. 2008). Bailey challenges the legal and

factual sufficiency of the evidence to establish that he used a deadly weapon.

        A deadly weapon constitutes “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

(17)(B) (Vernon Supp. 2007). Several factors aid this determination: (1) the size and

shape of the object; (2) the manner of its use or intended use; (3) the nature or existence

of inflicted wounds; and (4) any testimony of the object’s life-threatening capabilities.

Villarreal v. State, 255 S.W.3d 205, 209 (Tex. App.—Waco 2008, no pet.).

        Bailey cites Hester v. State, 909 S.W.2d 174 (Tex. App.—Dallas 1995, no pet.) and

Tucker v. State, 221 S.W.3d 780 (Tex. App.—Corpus Christi 2007), rev’d, 2008 Tex. Crim.

App. LEXIS 1443 (2008), to support his contention that the skillet is not a deadly

weapon.2 He complains that: (1) Harris did not suffer serious bodily injury; (2) the




2       Citing McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2007), Bailey contends that the skillet
cannot meet the definition of a deadly weapon because “kitchen knives, utility knives, straight razors,
and eating utensils are manifestly designed for other purposes and, consequently, do not qualify as
deadly weapons.” McCain, 22 S.W.3d at 502. However, the Court of Criminal Appeals held that “objects
used to threaten deadly force are in fact deadly weapons.” Id. at 503. In McCain, a butcher knife was
found to be a deadly weapon. See id.


Bailey v. State                                                                                 Page 4
skillet was not recovered; and (3) the record contains no testimony demonstrating how

the skillet was used, such as how hard he hit Harris or how he delivered the blows.

        In Hester, the evidence was insufficient to support a deadly weapon finding

regarding a screwdriver. See Hester, 909 S.W.2d at 176. Hester had not “stab[bed] or

attempt[ed] to stab the Voights with the screwdriver” or “verbally threaten[ed] to inflict

serious bodily injury or death.” Id. at 180. There was no evidence of the “sharpness,

length, or width of the screwdriver’s shaft.” Id. The State admitted a “Stanley-type,

Phillips-end screwdriver” as a jury aid, but the evidence did not show that Hester had

used that type of screwdriver or that the one he did use or “one sufficiently similar to it

could cause death or serious bodily injury.” Id. The Voights did not testify that they

believed Hester would cause them serious bodily injury or death. See id.

        In Tucker, the Corpus Christi Court held that the evidence was insufficient to

support a deadly weapon finding regarding a knife. See Tucker, 221 S.W.3d at 785.

Tucker said nothing “before, during, or after the infliction of the injuries.” Id. at 784.

Other than testimony that the knife had a two inch blade, there was no testimony about

the knife’s sharpness. See id. Testimony merely established that the knife could be

“classified” or “considered” a deadly weapon, not that it “had the ability to inflict death

or serious injury.” Id. The knife was not introduced into evidence and there was no

evidence regarding the manner with which it was used, as the victim was “laying on

the ground with her hands over her face and, therefore, unable to see the knife and the

manner of its use.” Id. The victim’s wounds were “not severe enough to require

stitches.” Id.


Bailey v. State                                                                      Page 5
        The Court of Criminal Appeals recently reversed Tucker. See Tucker v. State, No.

PD-0742-07, 2008 Tex. Crim. App. LEXIS 1443 (Tex. Crim. App. Nov. 26, 2008). The

victim suffered two stab wounds: (1) one wound penetrated the victim’s arm; and (2) a

wound to the “back of the neck, near the spine” caused a lot of pain. See Tucker, 2008

Tex. Crim. App. LEXIS 1443 at *9. Expert testimony was not required to establish that

the arm wound “could easily have severed a major blood vessel or nerve, placing the

victim’s life, or at least the use of her arm, in jeopardy.” Id. Thus, “the weapon that

caused her wound was capable, in its manner of use, of causing serious bodily injury.”

Id. The neck wound, “received in a vulnerable area, would seem to carry at least some

potential for resulting in a serious bodily injury such as paralysis or death.” Id. at *9-10.

        Two police officers testified that “the injuries were inflicted by a deadly

weapon.”          Id. at *10.   Their “lengthy experience” qualified them to provide such

testimony. Id. The Corpus Christi Court “minimized the officers’ testimony in claiming

that neither specifically testified that the folding knife had the ability to inflict death or

serious bodily injury.” Id. at *10-11. “Though neither officer knew whether the injuries

were inflicted by a knife, a key, or some other object, both agreed, based on the nature

of the injuries received, that the weapon that caused the injuries was a deadly weapon.”

Id. at *11.        The Corpus Christi Court’s reliance on “the absence of any detailed

description of the knife or key or of exactly how appellant employed the weapon used

to injure the victim,” was based on the “incorrect assumption that the use of a deadly

weapon cannot be inferred from the injuries themselves.” Id. “Whether a deadly




Bailey v. State                                                                         Page 6
weapon can be inferred solely from the victim’s injuries depends, of course, on the

nature of those injuries.” Id.

        Tucker and Hester are distinguishable for several reasons. First, the victim in

Tucker was not in a position to see what object was used to cause her wounds. Harris

was in a position to see Bailey use the skillet and apparently did see him use the skillet,

having testified that Bailey struck him with the skillet. In Hester, Hester neither used

nor attempted to use the screwdriver to inflict injury. Bailey actually did use the skillet

to injure Harris.

        Second, the defendants in Tucker and Hester said nothing and made no threats.

Here, Bailey told Harris “‘You better get out of here bitch ass n-----‘ or something like

that.” This statement can certainly be viewed as an expression of intent to inflict harm

upon Harris. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (“Intent

may be inferred from acts, words and conduct of accused.”); see also McCullough v. State,

No. 05-07-00605-CR, 2008 Tex. App. LEXIS 350, at *8-9 (Tex. App.—Dallas Jan. 17, 2008,

pet. ref’d) (not designated for publication) (rejecting contention that defendant’s

statement, “I don’t need you bitch,” when he threw a plate at the victim “expresses

anger or frustration, as opposed to any threat or intent to injure”; the jury could

consider the statement “as a threat to [the victim’s] personal safety.”).

        Third, the Court of Criminal Appeals’ ruling in Tucker supports a finding that the

skillet was capable of causing death or serious bodily injury, even absent evidence

showing that Harris suffered serious bodily injury or showing how the skillet was used.

The State was not required to either introduce the skillet into evidence or establish that


Bailey v. State                                                                      Page 7
Harris suffered serious bodily injury in order to establish the skillet as a deadly

weapon. See Tucker, 2008 Tex. Crim. App. LEXIS 1443, at *8; see also Morales v. State, 633

S.W.2d 866, 868 (Tex. Crim. App. 1982); Villarreal, 255 S.W.3d at 209. Detective Michelle

Starr testified that any hard object used to strike a person’s head, such as a brick or an

iron skillet, would be a deadly weapon. See Tucker, Tex. Crim. App. LEXIS 1443, at *8,

10-11. She testified that the skillet would constitute a deadly weapon in this case, as it is

capable of causing serious bodily injury when aimed at a person’s head. Id.

        Even in the absence of a description of the weapon or the manner of its use, the

“injuries suffered by the victim can by themselves be a sufficient basis for inferring that

a deadly weapon was used.” Id. at *8. In Ashcraft v. State, No. 03-07-00237-CR, 2008

Tex. App. LEXIS 1338 (Tex. App.—Austin Feb. 21, 2008, pet. ref’d) (not designated for

publication), the Austin Court reached a similar conclusion, finding that Tucker “was

simply wrong when it stated that there was no evidence regarding the manner of the

knife’s use by the defendant.”      Ashcraft, 2008 Tex. App. LEXIS 1338, at *6. “[T]he

evidence showed that the defendant used the knife to stab the complainant twice, once

in the neck near the spine.” Id. Ashcraft had stabbed the victim in the back four times

using a pocket knife with a two-inch blade. See id. at *8. The knife was never recovered.

Id. at *4. The victim’s wounds were not serious, but required hospital treatment. Id. at

*8. Two wounds were close to the victim’s spine; the “jury could have reasonably

inferred that, but for luck, the injuries inflicted by [Ashcraft] might have been much

worse.” Id. The jury could also “conclude that a knife long enough and sharp enough

to penetrate a body as deeply as 5 centimeters, when used to repeatedly stab a person in


Bailey v. State                                                                        Page 8
the back during a close physical struggle, is capable of causing serious bodily injury.”

Id. The Austin Court found the evidence legally and factually sufficient to support a

deadly weapon finding. See id. at *8-9.

        In the present case, Harris identified the skillet as a cast iron skillet and described

it as “black, round with rough edges.” There can only be so many ways to use a skillet

as a deadly weapon. That Bailey struck Harris in the back of the head indicates that the

skillet was likely swung at Harris. The record also suggests that Bailey and Harris were

in close proximity when Bailey struck Harris with the skillet.3

        Harris’s injuries caused him to pass out, bleed, and feel “woozy”, caused a knot

to rise on the back of his head, and were significant enough to prompt a visit to the

emergency room. An EMS technician described Harris’s injury as “possibly severe.”

Harris was admitted to the emergency room for “head trauma assault.” He complained

of a headache, blurred vision, and pain. The doctor’s impression was “[a]cute closed

head injury [and] cervical sprain.” A photograph admitted into evidence depicts Harris

lying on an emergency room bed wearing a head strap. CT scans of Harris’s head and

spine were also taken. Medical personnel were apparently concerned about the extent

of Harris’s injuries. His head injury could have resulted in hemorrhaging, lesions,

fractures, fluid collections, etc.

        As in Ashcraft and Tucker, the jury could reasonably infer that wounds inflicted

by the skillet had “some potential for resulting in a serious bodily injury” and “but for

3        The record is not entirely clear as to whether Harris was struck in the kitchen, where the skillet
was located, during the close physical altercation with Bailey or in the living room as he and Betty were
exiting the apartment. As the sole judge of the weight and credibility of witness testimony, the jury bore
the burden of resolving this inconsistency. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).


Bailey v. State                                                                                      Page 9
luck, the injuries inflicted by [Bailey] might have been much worse.” Tucker, 2008 Tex.

Crim. App. LEXIS 1443, at *9-10; Ashcraft, 2008 Tex. App. LEXIS 1338, at *8. Due to the

skillet’s hardness, the number of times that Harris was struck, Harris’s close proximity

to Bailey, and the nature of Harris’s injuries, the jury could reasonably conclude that the

skillet was capable, in its manner of use, of causing death or serious bodily injury. See

Tucker, 2008 Tex. Crim. App. LEXIS 1443, at *7-11; see also Ashcraft, 2008 Tex. App. LEXIS

1338, at *8-9.

        Viewing all the evidence in the light most favorable to the verdict, the jury could

reasonably conclude, beyond a reasonable doubt, that Bailey used the skillet as a deadly

weapon.      See Curry, 30 S.W.3d at 406.    The proof of guilt is not so weak nor the

conflicting evidence so strong as to render the jury’s verdict clearly wrong or manifestly

unjust. See Watson, 204 S.W.3d at 414-15; see also Johnson, 23 S.W.3d at 11. Because the

evidence is legally and factually sufficient to sustain Bailey’s conviction, we overrule his

first and second points of error. The judgment is affirmed.




                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Justice Vance concurs in the judgment with a note)*
Affirmed
Opinion delivered and filed December 17, 2008
Do not publish
[CRPM]



Bailey v. State                                                                      Page 10
*      (This is another example of the problem with the “deadly weapon” definition in
the Penal Code. Hopefully, at some point the Legislature will amend the statute to
include only items that are truly deadly weapons. A common ordinary skillet, found in
every kitchen, should not be classified as a deadly weapon, given the consequences that
flow from such a finding. Nevertheless, under existing precedents, I concur in the
judgment.)




Bailey v. State                                                                 Page 11
