                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00055-CR
         ______________________________


           MALCOLM GEORGE, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 114th Judicial District Court
                 Smith County, Texas
            Trial Court No. 114-2211-07




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                  MEMORANDUM OPINION

       After a bench trial, Malcolm George was orally sentenced to confinement for thirty-five years

for aggravated assault based on a threat to use a deadly weapon against Stephanie Veasey and her

seventeen-year-old son, Jonathan Veasey.1 George contends the evidence was legally and factually

insufficient to support his conviction. After a careful review of the evidence, we affirm George's

conviction, but reform the written judgment assessing two life sentences to conform with the oral

judgment pronounced at trial.2

I.     Factual Background

       George dated Stephanie and lived in her home along with her three children. One morning,

George went to work in the yard placing bricks around the flowerbeds. He discovered that the aid

of a weedeater was needed during this task. As George tried to grab the weedeater, it fell apart.

Because he felt that Stephanie's oldest son had purposefully taken apart the weedeater, George

became angry and marched into the house in a rampage. He opened and slammed doors and

destroyed objects in the house by kicking them. He woke Stephanie by pacing back and forth

between the kitchen and bedroom and yelling at her to find her oldest son another place to live.


       1
        The indictment in this case was for the assault against Jonathan, Stephanie's middle son.
George was also convicted of aggravated assault of Stephanie, and assessed a concurrent thirty-five-
year sentence in a companion case which we have decided today under cause number 06-08-00056-
CR. Since these assaults originated during one time period, the facts concerning each charge will
be discussed in this opinion.
       2
        This case has been transferred to this Court as part of the Texas Supreme Court's docket
equalization program.

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       A high chair in the kitchen shattered after George threw it to the ground. George picked up

the three-and-a-half to four-foot metal high-chair leg "like he was going to hit [Stephanie] with it."

He threatened Stephanie from the kitchen stating that he "was going to bash her face in with . . . that

pole," while waving the chair leg. When threatening Stephanie, George remained three or four yards

away from her and never came close enough to actually hit her. Stephanie remained in bed for the

duration of the incident. However, she testified she felt as though George might hit her. Although

recanted, Stephanie at one point indicated she felt her life was at stake. Jonathan witnessed the

incident and described it as "life threatening."

       Still holding the chair leg, George told Jonathan to go to his room and threatened to hit him

with the leg by stating, "if you call [the police], I guarantee that you'll be down—down or dead

before they get here." Jonathan testified that he was "very scared" and that, as George threatened

him, he "thought that [he] was going to be gone too." Trying to defuse the situation, Stephanie got

into her car, left the house, and called the police. After she left, George asked Jonathan to call her

and warn her that the big screen television would be broken if she did not return. George waited

outside. When Stephanie returned, George picked up a brick and began running toward the car. He

threw Stephanie's cell phone out of the window, said he knew she had called the police, and asked

her to help him pack. The police arrived as they were packing George's belongings into the car and

arrested him for aggravated assault.




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       Police officer James Turner testified at trial. He confirmed Jonathan's statement that George

threatened to bash his mother's face in and threatened Jonathan that, if he called the police, he would

be dead before they arrived. Turner also testified that the chair leg was capable of causing serious

bodily injury or death.

II.    The Evidence Is Legally Sufficient to Support George's Conviction

       When conducting a legal sufficiency analysis, we review all of the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Clewis v. State, 922 S.W.2d 126, 132–33 (Tex. Crim. App. 1996). This standard serves as a tool to

determine whether there is a fact issue at all. Clewis, 922 S.W.2d at 133. In other words, if the

evidence is insufficient under the Jackson standard, we must render a judgment of acquittal. Id.

However, if the Jackson standard is met, we must give full play to the fact-finder's responsibility to

weigh the evidence, resolve conflicts in the testimony, and draw reasonable inferences from basic

facts. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis, 922 S.W.2d at 133;

Bottenfield v. State, 77 S.W.3d 349, 354 (Tex. App.—Fort Worth 2002, pet. ref'd) (citing Jackson,

443 U.S. at 319).

       The State is not required to prove the ability to commit battery for a defendant to be

convicted of assault. Miller v. State, 741 S.W.2d 501, 503 (Tex. App.—Corpus Christi 1987, pet.

ref'd) (conviction affirmed even though victim was out of range of shotgun). Instead, one manner



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of committing aggravated assault with a deadly weapon requires proof of: 1) intentionally or

knowingly threatening another with imminent bodily injury; and 2) using or exhibiting a deadly

weapon during the commission of the assault. TEX . PENAL CODE ANN . §§ 22.01(a)(2); 22.02(a)(2)

(Vernon Supp. 2008). While the question of whether the defendant's conduct produced fear is

relevant, the crucial inquiry is "whether the assailant acted in such a manner as would under the

circumstances portend an immediate threat of danger to a person of reasonable sensibility." Olivas

v. State, 203 S.W.3d 341, 347 (Tex. Crim. App. 2006) (citing Anthony v. United States, 361 A.2d

202, 206 (D.C. 1976)); see also Chapman v. State, 78 Ala. 463, 465 (Ala. 1885).

       In some circumstances, the mere presence of a deadly weapon can be enough to instill fear

and threaten a person with bodily injury.        De Leon v. State, 865 S.W.2d 139, 142 (Tex.

App.—Corpus Christi 1993, no pet.).

       Here, George threatened Stephanie with the high chair leg by stating he would "bash her face

in." The threat caused Stephanie to reasonably feel that George would hit her. A fact-finder could

decide Stephanie was afraid that serious bodily injury or death could occur because she testified

feeling that her life was at stake. George also threatened to hit Jonathan with the chair leg and said

he would kill him if he called the police. In addition to stating he was "very scared" and was afraid

he "was going to be gone too," the following exchange occurred during Jonathan's cross-

examination:




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       Q.      . . . did there come a point where you didn't really feel like your life was in
               jeopardy?

       A.      I was - - I was kind of still afraid, because I - - he - - he doesn't - - I don't
               think he really would lie about something like that. But then at points where
               he could just cool down, it wouldn't happen. That's what I would think.

In both instances, injury was imminent because George threatened present harm and had the present

ability to carry out his threats.      See Tidwell v. State, 187 S.W.3d 771, 774–75 (Tex.

App.—Texarkana 2006, pet. struck). We give full play to the trial court's responsibility to weigh this

testimony and draw the reasonable inference that George intentionally or knowingly threatened

Stephanie and Jonathan with imminent bodily injury. The evidence is legally sufficient on this point.

       Next, under the Texas Penal Code, 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) (Vernon Supp. 2008); Charleston v. State, 33 S.W.3d 96, 100 (Tex.

App.—Texarkana 2000, pet. ref'd). Because a high-chair leg is not designed, made, or adapted for

the purpose of inflicting bodily injury, it is not a deadly weapon per se. McCain v. State, 22 S.W.3d

497, 502 (Tex. Crim. App. 2000); In re S.B., 117 S.W.3d 443, 446 (Tex. App.—Fort Worth 2003,

no pet.); Charleston, 33 S.W.3d at 99. The following five-factor test can be used in determining

whether the chair leg is a deadly weapon: (1) physical proximity between the victim and the object;

(2) the threats or words used by the assailant; (3) the size and shape of the weapon; (4) the weapon's

ability to inflict death or serious injury; and (5) the manner in which the defendant used the weapon.

Brown v. State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986); Tisdale v. State, 686 S.W.2d 110,


                                                  6
115 (Tex. Crim. App. 1984); English v. State, 647 S.W.2d 667, 669 (Tex. Crim. App. 1983); Blain

v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983); Williams v. State, 575 S.W.2d 30 (Tex. Crim.

App. 1979). No one factor is determinative, and each case must be examined on its own facts.

Either expert testimony or lay testimony may be sufficient to support a finding. English, 647 S.W.2d

at 668–69.

       The evidence established that George was within three to four yards of Stephanie when he

threatened her. The distance between George and Jonathan during the various threats is not

established in the record. The threats spewed from George demonstrate the capability of the chair

leg to be used as a deadly weapon. George raised and waved the chair leg in a manner that could be

used to cause serious injury or death. Turner testified that the three-and-a-half to four-foot metal

pole brandished by George was capable of causing serious injury or death. In sum, all factors save

proximity tend to support the finding that the chair leg was a deadly weapon. Yet, since George's

ability to actually hit Stephanie or her son need not be proved, and because Turner's testimony alone

could be sufficient to support the deadly weapon finding, we find when the evidence is viewed in

the light most favorable to the verdict, it is legally sufficient to establish that the chair leg was a

deadly weapon. Miller, 741 S.W.2d at 503; English, 647 S.W.2d at 668–69.

III.   The Evidence Is Factually Sufficient to Support George's Conviction

       Because factual sufficiency is an issue of fact, we are not free to reweigh the evidence and

set aside a judgment merely because we feel a different result is more reasonable. Clewis, 922



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S.W.2d at 135. Instead, we give due deference to the fact-finder's determinations and will find the

evidence factually insufficient only when necessary to prevent manifest injustice. Johnson,

23 S.W.3d at 8–9, 12; Clewis, 922 S.W.2d at 133, 135. Thus, we view the evidence in a neutral light

when assessing factual sufficiency and determine whether the proof of guilt is so obviously weak as

to undermine confidence in the verdict, or, if taken alone, is greatly outweighed by contrary proof

so as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 11; Cain v. State, 958 S.W.2d 404, 407

(Tex. Crim. App. 1997); Harris v. State, 133 S.W.3d 760, 764 (Tex. App.—Texarkana 2004, pet.

ref'd). If we find the evidence factually insufficient, we must vacate the conviction and remand the

cause for a new trial in order to avoid substituting our own judgment for that of the fact-finder.

Clewis, 922 S.W.2d at 133–35.

       The evidence recounted above supports the finding that George intentionally or knowingly

threatened Stephanie and Jonathan with imminent bodily injury while exhibiting a deadly weapon.

See TEX . PENAL CODE ANN . §§ 22.01(a)(2), 22.02(a)(2). We cannot say that the trial court's finding

was clearly wrong or was against the great weight and preponderance of this evidence, which is

factually sufficient to support the conviction.

IV.    Written Judgment Must Be Reformed

       Where there is a variation between the oral pronouncement of sentence and the written

memorialization of the sentence, the oral pronouncement controls. Thompson v. State, 108 S.W.3d

287, 290 (Tex. Crim. App. 2003); Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998).



                                                  8
While George was orally sentenced to two thirty-five-year concurrent sentences for aggravated

assault of Stephanie and her son, the written judgment reflects George is to serve two life sentences

for the same crimes. This Court has the authority to reform the judgment sua sponte in order to

"make the record speak the truth." TEX . R. APP . P. 43.2(b); French v. State, 830 S.W.2d 607, 609

(Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd). We

therefore modify the judgment to reflect the oral pronouncement at trial.

V.     Conclusion

       Based on a finding that the evidence is legally and factually sufficient, we affirm George's

conviction of aggravated assault committed against Jonathan. Also, we modify the judgment to

conform with the oral pronouncement at trial and reform George's judgment and sentence to

confinement for thirty-five years, to run concurrently with the sentence in cause number 06-08-

00056-CR.



                                                              Jack Carter
                                                              Justice

Date Submitted:        September 29, 2008
Date Decided:          October 22, 2008

Do Not Publish




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