                                   NO. 07-08-00358-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                  SEPTEMBER 17, 2010


                          HENRY BALTAZAR, JR., APPELLANT

                                              v.

                           THE STATE OF TEXAS, APPELLEE


            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2008-419,264; HONORABLE CECIL G. PURYEAR, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                          OPINION

       Appellant Henry Baltazar Jr. appeals from his conviction of the offense of

aggravated assault with a deadly weapon1 and the resulting sentence of fifty-five years

of imprisonment. Via his sole issue, appellant contends the evidence presented at trial

was factually insufficient. We will affirm the judgment of the trial court.



       1
         See Tex. Penal Code Ann. ' 22.02(a)(2) (Vernon 2007). The indictment also
included an enhancement paragraph setting forth appellant=s previous final felony
conviction.   Appellant plead Atrue@ to the enhancement, making his conviction
punishable as a first degree felony. See Tex. Penal Code Ann. ' 12.42 (Vernon 2003).
                                       Background


      Trial testimony showed that appellant administered a beating to his girlfriend

during an argument. Among her injuries, the most serious were fractures of bones in

her face. The jury found appellant guilty of aggravated assault with a deadly weapon,

and assessed punishment as noted. This appeal followed.


                                         Analysis


      A factual sufficiency review begins with the assumption that the evidence is

legally sufficient under Jackson v. Virginia.2   Laster v. State, 275 S.W.3d 512, 518

(Tex.Crim.App. 2009). Evidence can be deemed factually insufficient in two ways: (1)

the evidence supporting the conviction is Atoo weak@ to support the factfinder=s verdict,

or (2) considering conflicting evidence, the factfinder=s verdict is Aagainst the great

weight and preponderance of the evidence.@ Laster, 275 S.W.3d at 518; see 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) (setting forth same standard).


      Under the variant of the offense of aggravated assault with which appellant was

charged, his guilt required the State to prove: (1) he intentionally, knowingly or

recklessly; (2) he caused bodily injury to the victim; (3) he used or exhibited his hand

during the commission of the assault; and (4) that appellant=s hand, in the manner of its

use or intended use, was capable of causing death or serious bodily injury. Tex. Penal

Code Ann. '' 22.01(a)(1) (Vernon 2007); 22.02(a)(2) (Vernon 2005).



      2
          443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
                                            2
       As we understand appellant’s position on appeal, he does not challenge the

sufficiency of the evidence that, with the required culpable mental state and using his

hand, he caused bodily injury to his girlfriend. With respect to the final element, that

establishing his use of a deadly weapon, appellant appears to take the position the

State was required to prove the injuries he inflicted on her constituted serious bodily

injury.3 Appellant’s argument is to the effect that the victim’s injuries did not meet the

definition of serious bodily injury. The State, while not conceding that the victim’s

injuries were less than serious bodily injury, points out that its burden in this case simply

was to prove that appellant used his hands in a manner capable of causing death or

serious bodily injury. The State is correct. Tex. Penal Code Ann. ' 1.07(17)(B) (Vernon

2003); Tucker v. State, 274 S.W.3d 688, 691 (Tex.Crim.App. 2008); Petruccelli v. State,

174 S.W.3d 761, 770 (Tex.App.BWaco 2005, pet. ref=d), cert. denied, 549 U.S. 839, 127

S.Ct. 106, 166 L.Ed.2d 66 (2006).


       As appellant concedes, hands may be deadly weapons based on their manner of

use or intended use and their capacity to produce death or serious bodily injury.

Petruccelli, 174 S.W.3d at 770, citing Turner v. State, 664 S.W.2d 86, 90

(Tex.Crim.App. 1983) (panel op.) and Vela v. State, 159 S.W.3d 172, 182

(Tex.App.BCorpus Christi 2004, no pet.). Injuries suffered by the victim can alone be a

sufficient basis for inferring that a deadly weapon was used. See Jaramillo v. State, No.

       3
          ABodily injury@ means physical pain, illness, or any impairment of physical
condition. Tex. Penal Code Ann. ' 1.07(8) (Vernon 2003). ASerious bodily injury@
means 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(46) (Vernon 2003).

                                             3
07-08-0148-CR, 2009 Tex.App. LEXIS 1781, at *7 (Tex.App.BAmarillo Mar. 13, 2009,

no pet.); Tucker, 274 S.W.3d at 691-92.4


       Testimony at trial showed appellant’s beating left his girlfriend with a bloody

nose, bruises on her arm and abrasions on her legs and back. After he hit her in the

face with his fist, she was briefly unconscious. The record contains her characterization

of his actions as “swinging hard.”       She described symptoms of pain, numbness,

headaches, double vision and blurriness in her left eye. The CAT scan ordered by the

emergency room physician showed what he described in testimony as a “tripod

fracture,” involving fractures to three bones near the eye. The physician told the jury

that type of facial injury is a serious injury carrying risk of loss of vision through rupture

or dislocation of the eye. He agreed that such loss of vision could be a protracted loss

or impairment of the function of a bodily member or organ.            The physician and a

Lubbock police officer both agreed with the prosecutor that a hand used in the manner it

was here could be a deadly weapon, capable of causing serious bodily injury. See

Tucker, 274 S.W.3d at 692 (police officer as expert witness with respect to deadly

weapon).


       We find the evidence that during his assault of his girlfriend appellant used his

hand in a manner capable of causing serious bodily injury to her was not too weak to

support the jury’s deadly weapon finding. Appellant points to evidence she never had

       4
         Compare Purdy v. State, No. 07-09-00058-CR, 2010 Tex.App. LEXIS 4955
(Tex.App.—Amarillo June 29, 2010, no pet.) (evidence insufficient for deadly weapon
finding as there was no description of injuries to the victim and knife was not entered
into evidence and was inadequately described).


                                              4
surgery to repair the fractures and that at the time of trial she had not experienced any

of the more serious potential consequences of her injuries.5 As the Court of Criminal

Appeals noted in Tucker, the finding a defendant used a deadly weapon is not

precluded simply because the victim is fortunate enough not to suffer the full range of

potential consequences.     The question is appellant’s use of his hand in a manner

capable of causing serious bodily injury. 274 S.W.3d at 692. The evidence to which

appellant points does not render the jury’s verdict against the great weight and

preponderance of the evidence. Laster, 275 S.W.3d at 518. We find the evidence

factually sufficient to support the jury’s verdict, overrule appellant=s sole issue on appeal

and affirm the judgment of the trial court.




                                                         James T. Campbell
                                                              Justice




Publish.




       5
       The States notes, however, the victim’s testimony that pain in her left eye
“comes and goes,” and her testimony she did not return to the plastic surgeon for the
recommended surgery because she had no insurance.
                                              5
