Affirmed and Memorandum Opinion filed July 10, 2012




                                          In The

                        Fourteenth Court of Appeals

                                  NO. 14-11-00864-CR


                         MATTHEW LESLIE HULL, Appellant

                                            V.

                           THE STATE OF TEXAS, Appellee


                         On Appeal from the 10Th District Court
                               Galveston County, Texas
                           Trial Court Cause No. 10CR3636


                    MEMORANDUM                      OPINION


          Matthew Leslie Hull appeals his conviction for aggravated robbery. Appellant
contends that the evidence is insufficient to support his conviction because there is
insufficient evidence to establish that he used a deadly weapon during the robbery. We
affirm.

                                       Background

          Appellant was indicted for aggravated robbery on February 10, 2011. A two-day
jury trial was held on August 24, 2011.
       At trial, complainant Jeremie Cummins testified that he was selling drugs in
Galveston, Texas, on the night of November 14, 2010. He testified that a woman he
recognized as a customer pulled up in a black Ford Explorer. He entered the vehicle
intending to sell her drugs at approximately 10:30–11:00 p.m. The female drove the
vehicle around the corner, and complainant waited to be paid. Appellant, who was hiding
in the back seat, then attacked complainant by striking him repeatedly in the head with an
unknown object. Complainant testified that the attack was as if he “met the devil” and he
felt like he was “about to die.” Complainant testified that the first blow of the “vicious
attack . . . literally paralyzed [him] from [the] neck down.”

       Once complainant regained control of his body, he turned to face appellant and
began holding him off. He told appellant: “Man, don’t kill me, man. This is all I got.”
While struggling with appellant, complainant held appellant’s arm and “the object” that
appellant had in his hands. Complainant explained that he did not see what the object
was. Complainant testified that during the struggle the female driver also began to attack
him by striking him in the head. According to complainant, she struck him with another
object that complainant described as “something heavy and blunt” with “force behind it”
that “busted [his] head open.” The female driver reached into complainant’s pockets and
took $75 in cash and a $20 crack rock. Appellant then let complainant get out of the
vehicle, and complainant made his way to the store where he fell and laid down on the
sidewalk.

       Officer Brandon Kiamar of the Galveston Police Department testified that he was
called to the store. He observed complainant lying face-down with his head covered in
blood. He recognized complainant because they went to school together and he knew
complainant was a local drug dealer. According to Kiamar, complainant had lacerations
on the back of his head — specifically on the right side of his ear and on the backside of
his head. Complainant had several open gashes and “what looked like a hole in [his]
head.” Kiamar testified that complainant was conscious and did not seem disoriented.

       Complainant testified that he told Kiamar that he had been attacked by three white

                                              2
male skinheads, which he later admitted was a lie. According to complainant, he lied
because he planned to kill his attackers and did not want to be linked to the crime. EMS
arrived and took complainant to the emergency room where he got 21 staples, 11 stitches,
an MRI, and a CT scan.

       Medical records showed that complainant suffered (1) a one centimeter laceration
to his left forehead; (2) a twelve centimeter laceration on his right scalp; (3) a two
centimeter laceration on his right occiput; (4) a two centimeter laceration on his left
occiput; and (5) swelling on his scalp, occiput, and right parietal. Complainant did not
have any damage to his skull but had a chipped neck bone — his radiology results
showed subgaleal hematomas on his head but no abnormalities or fractures. According to
complainant, the doctors wanted him to stay at the hospital for further testing, but he
checked himself out that night.

       Complainant testified that his brother convinced him to go to the police a few days
later in order to tell the truth about what had happened because his brother did not want
complainant to retaliate and get into trouble. Complainant testified that he met with
Sergeant Gilbert Gomez and told him the truth about what had happened and showed him
where appellant lived. Gomez testified that he questioned appellant and the female driver
and briefly looked at the Ford Explorer. He also called for another officer to take
pictures of appellant, the female, and the vehicle. Gomez noticed that the inside of the
passenger window on the vehicle had a red smudge. He asked appellant about it, but
appellant claimed he did not know what it was. Gomez did not see any blood on the seats
but noticed they had seat covers.

       Gomez showed complainant photo line-ups, and complainant identified appellant
and the female driver as his attackers. Gomez then obtained arrest warrants for appellant
and the female. Appellant was arrested on November 30, 2010. Gomez never was able
to identify or locate any weapons used in the robbery.

       A jury found appellant guilty of aggravated robbery and sentenced him to 20
years’ confinement. Appellant filed a timely notice of appeal.

                                            3
                                         Analysis

       In two issues, appellant argues that the evidence is legally and factually
insufficient to support his conviction for aggravated robbery because the State failed to
establish that he used or exhibited a deadly weapon during the commission of the offense.

I.     Standard of Review and Applicable Law

       We address appellant’s sufficiency challenges under a single standard for
evaluating legal sufficiency of the evidence to support a finding required to be proven
beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 913–15 (Tex. Crim.
App. 2010) (Cochran, J., concurring) (concluding that a separate factual sufficiency
standard no longer applies in criminal cases). When reviewing the sufficiency of the
evidence, we view all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any
rational fact finder could have found the elements of the offense beyond a reasonable
doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979)). The jury is the exclusive judge of the credibility
of witnesses and the weight of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). We defer to the jury’s responsibility to fairly resolve conflicts in the
evidence, and we draw all reasonable inferences from the evidence in favor of the verdict.
Id. Circumstantial evidence is as probative as direct evidence in establishing the guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

       A person commits aggravated robbery if he commits robbery and he uses or
exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03 (Vernon 2011). A person
commits robbery if, in the course of committing theft and with intent to obtain or
maintain control of the property, he intentionally, knowingly, or recklessly causes bodily
injury to another.   Tex. Penal Code Ann. § 29.02 (Vernon 2011).            To prove that
appellant’s weapon was deadly, the State must prove that the object (1) was manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

                                             4
(2) is capable of causing death or serious bodily injury. Romero v. State, 331 S.W.3d 82,
83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see Tex. Penal Code Ann. § 1.07
(Vernon 2011).

       To determine whether the object appellant used to attack complainant was a
deadly weapon under the second definition, “capability” must be evaluated in light of the
facts that actually existed at the time of the offense. Romero, 331 S.W.3d at 83 (citing
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Brown v. State, 716
S.W.2d 939, 946–47 (Tex. Crim. App. 1986)). Factors that a jury may consider in
determining whether an object is a deadly weapon under this definition include (1) words
of the accused; (2) the intended use of the weapon; (3) the size and shape of the weapon;
(4) testimony by the victim that he feared death or serious bodily injury; (5) the severity
of any wounds inflicted; (6) the manner in which the assailant allegedly used the object;
(7) physical proximity of the parties; and (8) testimony as to the weapon’s potential for
causing death or serious bodily injury. Id. (citing Thomas v. State, 821 S.W.2d 616, 619
(Tex. Crim. App. 1991); Brown, 716 S.W.2d at 946–47).

       Intent to inflict serious bodily injury or death may be shown by evidence of
assertive conduct by an attacker. Romero, 331 S.W.3d at 82. The nature of any inflicted
wounds is a factor to be considered, but wounds are not a prerequisite to a deadly weapon
finding. Banargent v. State, 228 S.W.3d 393, 399 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d) (citing English v. State, 647 S.W.2d 667, 668–69 (Tex. Crim. App.
1983)).   Wounds in “particularly vulnerable” parts of the body may provide ample
evidence from which the jury may draw the inference that the manner of the assailant’s
use of an object rendered it a deadly weapon. Tucker v. State, 274 S.W.3d 688, 691–92
(Tex. Crim. App. 2008); Morales v. State, 633 S.W.2d 866, 868–69 (Tex. Crim. App.
[Panel Op.] 1982). Photographs of wounds admitted into evidence have been shown to
provide sufficient evidence for a jury to find that a weapon was used in a manner making
it a deadly weapon. See Morales, 633 S.W.2d at 868–69. If a wound could have easily
caused death or serious bodily injury, but the victim was fortunate that it did not, it may

                                            5
still be found that the weapon that caused the wound was capable, in its manner of use, of
causing serious bodily injury. Tucker, 274 S.W.3d at 691–92.

       It is not necessary that an object be introduced into evidence in order for there to
be sufficient evidence to establish it as a deadly weapon. Romero, 331 S.W.3d at 84. It
also is not necessary that expert testimony be offered — lay testimony from the victim
alone may be sufficient evidence. Tucker, 274 S.W.3d at 692; English, 647 S.W.2d at
669; Morales, 633 S.W.2d at 868; Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim.
App. 1978); Romero, 331 S.W.3d at 84. The jury needs sufficient evidence to draw an
inference that the manner of the appellant’s intended use of the object was capable of
causing death or serious bodily injury. Morales, 633 S.W.2d at 868–69; Romero, 331
S.W.3d at 83.

II.    Deadly Weapon

       Appellant argues that the evidence was insufficient to support a finding that the
“unknown object” used in the robbery of complainant constituted a deadly weapon. No
evidence was offered to corroborate complainant’s testimony that he feared for his life.
There is no evidence as to the shape, size, or identity of the object; and the object never
was admitted into evidence.      Appellant contends that (1) he did not threaten the
complainant; (2) complainant suffered only “superficial wounds” that could “be
explained by a nasty fistfight;” and (3) he allowed complainant to escape once the
robbery was complete. Considering the evidence presented in this case, we conclude
there is sufficient evidence to support appellant’s conviction for aggravated robbery with
a deadly weapon.

       Appellant was in close physical proximity to complainant when the robbery and
attack occurred. Appellant was hiding in the back seat of the vehicle while complainant
sat in the front seat, and appellant struck complainant’s head from this position. The
physical proximity of the parties is a factor for determining whether the object is a deadly
weapon. Brown, 716 S.W.2d at 946; Romero, 331 S.W.3d at 83; see also English, 647
S.W.2d at 668–69 (victim’s testimony that he was in the front seat of a car while his

                                             6
assailant, who was hiding in the back seat, held a knife to the victim’s throat and
demanded money was sufficient to establish the knife as a deadly weapon through the
manner of its use when no knife was introduced into evidence and the victim could only
give a general description of it). Appellant’s position, closely behind complainant while
physically attacking him, supports a finding that the object used in the attack was a
deadly weapon. See English, 647 S.W.2d at 668–69; Herbert v. State, 631 S.W.2d 585,
587 (Tex. App.—El Paso 1982, no pet.).

       Complainant testified that he felt like he was “about to die” during the “vicious
attack” and he pleaded with appellant: “Man, don’t kill me, man. This is all I got.” That
complainant feared for his life during the attack shows that the manner of appellant’s use
of the object was capable of inflicting death or serious bodily injury and, therefore,
supports a finding that it was a deadly weapon. See Hammons v. State, 856 S.W.2d 797,
800–801 (Tex. App.—Fort Worth 1993, pet. ref’d).

       When Kiamar found complainant, he was lying face down and his head was
“covered in blood;” he had numerous cuts and “what looked like a hole in [his] head.”
Complainant suffered multiple lacerations on his head (ranging from one to twelve
centimeters each); swelling around his head; and subgaleal hematomas. Evidence of
these wounds was provided to the jury through pictures of complainant at the hospital
showing that he was in a neck brace and still bleeding from the lacerations on his head.
The pictures show lacerations going from the lower-back side of complainant’s head to
just above his ear; these lacerations are especially deep and wide at certain points.
Complainant’s injuries required CT and MRI scans as well as 11 stitches and 21 staples.
Complainant testified that the doctors wanted him to stay in the hospital for further
testing.

       Attacks to certain “particularly vulnerable” parts of the body carry the potential for
resulting in a serious bodily injury or death. Tucker, 274 S.W.3d at 692 (wounds to the
back of the neck and to the arm); see Morales, 633 S.W.2d at 868 (wound from “just
underneath the complainant’s earlobe across her cheek to the corner of her mouth”); see

                                             7
also Bailey v. State, No. 10-07-00381-CR, 2008 WL 5246683, at *4–5 (Tex. App.—
Waco Dec. 17, 2008, pet. ref’d) (mem. op., not designated for publication) (wound in
back of head after being hit with skillet). Appellant “viciously” attacked complainant’s
head repeatedly at close range, and his attacks inflicted wounds serious enough to require
11 stitches, 21 staples, and medical testing. The first blow of this “vicious attack . . .
literally paralyzed [complainant] from the neck down.” Complainant testified that he was
conscious but that he “could not move” while appellant struck him repeatedly in the back
of his head. It does not take expert testimony to recognize that an attack causing these
wounds to a “particularly vulnerable” part of complainant’s body, his head, could have
easily placed complainant in danger of suffering death or serious bodily harm. See
Tucker, 274 S.W.3d at 692. Even though complainant was “fortunate that [he] did not
receive [] a serious injury, the weapon that caused [his] wound[s] was capable, in its
manner of use, of causing serious bodily injury.” See id. (emphasis in original); Bailey,
2008 WL 5246683, at *5.

      We reject appellant’s contention that he did not have the intent to cause death or
serious bodily harm to complainant because complainant “suffered only superficial
wounds” and appellant told complainant he could exit the vehicle after the robbery.
Appellant did not merely suffer “superficial wounds.” Further, it is not necessary that
appellant actually intended to cause death or serious bodily injury; an object is a deadly
weapon if appellant intends a use of the object in which it would be capable of causing
death or serious bodily injury. See Bailey v. State, 38 S.W.3d 157, 159 (Tex. Crim. App.
2001). Appellant’s conduct during the robbery consisted of hiding in the backseat and
then launching a “vicious attack” on complainant by repeatedly striking him in an
especially vulnerable part of his body — his head. Appellant testified that “the first blow
. . . literally paralyzed [him] from [the] neck down,” and appellant’s attack was
“repetitive” and continued “constantly and constantly.” Complainant testified that he
“was not unconscious, but [he] could not move.”          This conduct shows appellant’s
intended use of his weapon and that it was capable of causing death or serious bodily


                                            8
injury. See Romero, 331 S.W.3d at 83.

      We conclude that, when viewed in the light most favorable to the jury’s guilty
verdict, the evidence sufficiently supports the jury’s finding that the weapon used by
appellant was deadly. See Brooks, 323 S.W.3d at 902–03 (plurality opinion); id. at 913–
15 (Cochran, J., concurring).

                                      Conclusion

      We affirm the trial court’s judgment.




                                        /s/       William J. Boyce
                                                  Justice



Panel consists of Justices Boyce, Christopher and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                              9
