












 
 
 
 
 
 
                                                COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                                NO.
 2-09-084-CR
 
 
DONALD D. WALKER                                                                        APPELLANT
 
                                                             V.
 
THE STATE OF TEXAS                                                                             STATE
 
                                                       ------------
 
          FROM
CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
 
                                                       ------------
 
                                      MEMORANDUM OPINION[1]
 
                                                       ------------
I. 
Introduction
Appellant
Donald D. Walker appeals his conviction for aggravated assault.[2]  He contends in five issues that the evidence
is legally and factually insufficient to sustain his conviction and that the
trial court erred by admitting evidence of a prior guilty plea.  We affirm.
II. 
Procedural Background




A
grand jury indicted Appellant on February 25, 2009.  The indictment alleged that Appellant
intentionally or knowingly caused bodily injury to Devona Harris by hitting her
with his hand or a firearm, that he intentionally or knowingly threatened
imminent bodily injury to Ms. Harris, and that he used or exhibited a deadly
weapon, a firearm, during the commission of the assault.  The indictment also alleged that Appellant,
by hitting Ms. Harris with his hand or a firearm, intentionally or knowingly
caused bodily injury to Ms. Harris, Aa
person whose relationship is, or whose association with [Appellant] has been, a
continuing dating relationship of a romantic or intimate nature, or a member of
[Appellant=s]
family or household.A  The indictment also contained a
repeat-offender notification. 
Appellant
pleaded not guilty and was tried in March 2009. 
The jury charge included two counts: aggravated assault with a deadly
weapon (Count One) and assault causing bodily injury to a family member with a
prior conviction (Count Two).  The jury
returned a guilty verdict as to Count One, and the State waived Count Two.  During the punishment phase of his trial,
Appellant pleaded true to the repeat-offender notification.  The jury found the repeat-offender
notification true and assessed Appellant=s
punishment at thirty years=
confinement, and the trial court sentenced Appellant accordingly. 
III. 
Factual Background




Appellant
and Devona Harris started dating in approximately August 2007, and Appellant
moved into Ms. Harris=s apartment shortly
thereafter.  On October 15, 2007, Ms.
Harris and Appellant got into an argument Aover
something small,@ and Ms. Harris asked
Appellant to leave.  Appellant followed
Ms. Harris into the bedroom of her apartment, but she went into the living room
and called 9-1-1.  
While
Ms. Harris was on the phone, Appellant grabbed the phone from her and
determined the police were on the phone. 
Appellant then pulled out a gun and started hitting Ms. Harris.  Appellant had his hand on the grip of the gun
and his finger on the trigger as he hit Ms. Harris with the bottom of the gun
on her head, face, and shoulders.  Ms.
Harris testified, AI don=t
know whether he=s pulling the trigger or he
was pulling the trigger and it was just jammed up or not, but he kept pulling
it at me and then hit me with it again.@  She denied that she and Appellant were
wrestling and said, AI thought that I was going
to die.  I thought he was going to kill
me.@  Ms. Harris testified that Appellant struck
her approximately nine times with the bottom of his gun.  She testified that she suffered serious
injuries and was beaten up pretty badly. 
She bled on the door and walls and required medical attention.  




Ms.
Harris testified that when the police officers knocked on the door in response
to her 9-1-1 call, Appellant told her to go clean up and that he started
scrubbing the blood off of the door and walls and told her to stay in the back
room.  She testified that she did not
scream because she was afraid Appellant would shoot her before the police could
open the door and that while Appellant was in the bathroom, she was able to run
past the bathroom, unlock the front door, and run outside.  Ms. Harris kept the phone line open during
the assault, and the events were recorded on the 9-1-1 tape admitted into
evidence.  
Arlington
police officers Norman and Aklin arrived at the apartment during the
assault.  Officer Norman testified that
they knocked on the apartment door several times without a response.  He said that Ms. Harris eventually opened the
door and walked out.  Officer Norman said
that after Ms. Harris opened the door, he saw Appellant standing in the
apartment and asked Appellant to show him his hands to determine whether he was
armed.  Officer Norman then escorted
Appellant outside the apartment; he saw blood on Appellant=s
hands, particularly in the web area across Appellant=s
knuckles.  Officer Norman asked Appellant
what happened, and Appellant told him that he must have injured himself when he
and Ms. Harris were wrestling.  Appellant
denied having a gun and told Officer Norman that the gun belonged to Ms. Harris.  




Ms.
Harris testified that although she did not see Appellant go into her bedroom
closet, she knew that he had gone into the area.  She testified that Appellant put the gun in
the bedroom closet, that she helped Officer Norman search for the gun in her
bedroom closet, and that they found the gun in some luggage in her closet.  She admitted on cross-examination, however,
that the gun was actually in her purse, not a piece of luggage.  Officer Norman testified that he recovered a
loaded gun from Ms. Harris=s
purse, which was located inside the apartment. 
He stated that even though he could not recall if there was a round in
the chamber when he found the loaded gun, there were rounds in the magazine and
the gun Acould
be made deadly quickly by just pulling the slide back and releasing@
because doing so causes a round to go into the chamber.  He also testified at trial that a firearm is
a deadly weapon, even when not used to shoot someone. 
Several
photographs, a bloody shirt, and a bloody towel that Ms. Harris said Appellant
used to clean up the blood were admitted into evidence at trial. The
photographs depicted the apartment, the injuries to Ms. Harris, and the gun
retrieved from the apartment.  The bloody
shirt and towel were recovered from the apartment a couple of days later, and
Ms. Harris admitted that she waited a couple of days before telling the police
about the bloody shirt and towel. Officer Norman testified that Ms. Harris=s
injuries looked worse in person than in the photographs and that Ms. Harris=s
head-injury was consistent with Aa
blunt force, hard, isolated object.@ 
IV. 
Sufficiency of the Evidence
Appellant
contends in his first two points that the evidence is legally and factually
insufficient to sustain his conviction and argues in his third and fourth
points that the evidence is legally and factually insufficient to prove his use
of a deadly weapon.
A.  Standard of Review




In
reviewing the legal sufficiency of the evidence to support a conviction, we view
all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007).
When
reviewing the factual sufficiency of the evidence to support a conviction, we
view all the evidence in a neutral light, favoring neither party. Steadman
v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006). 
We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder=s
determination is clearly wrong and manifestly unjust or whether conflicting
evidence so greatly outweighs the evidence supporting the conviction that the
factfinder=s
determination is manifestly unjust.  Steadman, 280 S.W.3d at 246; Watson,
204 S.W.3d at 414B15, 417.  To reverse under the second ground, we must
determine, with some objective basis in the record, that the great weight and
preponderance of all the evidence, although legally sufficient, contradicts the
verdict.  Watson, 204 S.W.3d at
417.  
Unless
we conclude that it is necessary to correct manifest injustice, we must give
due deference to the factfinder=s
determinations, Aparticularly those
determinations concerning the weight and credibility of the evidence.@  Johnson v. State, 23 S.W.3d 1, 9 (Tex.
Crim. App. 2000); see Steadman, 280 S.W.3d at 246.  Evidence is always factually sufficient when
it preponderates in favor of the conviction. 
Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at
417.  




B.  Applicable Law
A
person commits the offense of assault if that person intentionally, knowingly,
or recklessly causes bodily injury to another or intentionally or knowingly
threatens another with imminent bodily injury. 
Tex. Penal Code Ann. '
22.01(a)(1), (2).  The offense becomes
aggravated assault if the person committing the assault uses a deadly weapon
during the commission of the offense.  Id.
'
22.02(a)(2). 
C.  The Evidence is Legally Sufficient
In
his first and third points, Appellant contends that the evidence is legally
insufficient to prove that he committed aggravated assault and used or
exhibited a deadly weapon.  
The
trial court instructed the jury that Appellant committed aggravated assault
with a deadly weapon if the jury found beyond a reasonable doubt that he Aintentionally
or knowingly cause[d] bodily injury to Devona Harris by hitting her with a
firearm@ or Aintentionally
or knowingly threaten[ed] imminent bodily injury to Devona Harris@ and
Ause[d]
or exhibit[ed] a deadly weapon during the commission of the assault, to-wit: a
firearm, that in the manner of its use or intended use was capable of causing
death or serious bodily injury.@  Thus, the jury could have found Appellant
guilty of aggravated assault if it believed beyond a reasonable doubt that
Appellant either intentionally or knowingly caused bodily injury or
intentionally or knowingly threatened imminent bodily injury to Ms. Harris and
used or exhibited a firearm during the commission of the assault.




Ms.
Harris testified that Appellant grabbed the phone from her, pulled a gun, had
his hand on the grip and his finger on the trigger of the gun, and hit her with
the bottom of the gun on her head, face, and shoulders.  She said that Appellant struck her
approximately nine times with the bottom of the gun.  She testified that she suffered serious
injuries and was beaten up pretty badly; she bled on the door and walls, and
she required medical attention.  Ms.
Harris testified, AI thought that I was going
to die.  I thought he was going to kill
me.@ She
also testified, AI don=t
know whether he=s pulling the trigger or he
was pulling the trigger and it was just jammed up or not, but he kept pulling
it at me and then hit me with it again.@  Officer Norman testified that he saw blood on
Appellant=s
hands, particularly in the web area across Appellant=s
knuckles.  He also testified that Ms.
Harris=s
injuries looked worse in person than in the photographs and that the injury to
her head was consistent with Aa
blunt force, hard, isolated object.@  This evidence is legally sufficient to
support the jury=s finding that Appellant
intentionally or knowingly caused bodily injury to Ms. Harris or intentionally
or knowingly threatened her with imminent bodily injury.  See Tex. Penal Code Ann. '
22.01(a)(1), (2); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778; Santacruz v. State, 237 S.W.3d 822, 826 (Tex. App.CHouston
[14th Dist.] 2007, pet. ref=d)
(op. on reh=g)
(holding evidence legally sufficient to support aggravated assault conviction
because victim testified the appellant struck her with a rifle and police
officer testified the victim=s
injuries were consistent with being struck by a blunt object).




The
evidence is also legally sufficient to support the jury=s
deadly weapon finding.  The definition of
a deadly weapon under section 1.07(a)(17)(B) includes Aanything
that in the manner of its use or intended use is capable of causing
death or serious bodily injury.@  See Tex. Penal Code Ann. '
1.07(a)(17)(B) (Vernon Supp. 2009) (emphasis added).  There is no requirement that the deadly
weapon actually cause death or serious bodily injury before the jury can
affirmatively answer the deadly weapon question.  See id.; see also McCain v.
State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (holding section
1.07(a)(17)(B)=s Aplain
language does not require that the actor actually intend death or serious
bodily injury; an object is a deadly weapon if the actor intends a use of the
object in which it would be capable of causing death or serious bodily injury@). 




Ms.
Harris testified that Appellant held the grip of the gun in his hand as he
repeatedly struck her.  She also said she
did not know if Appellant was pulling the trigger or not but that Ahe
kept pulling it at [her] and then hit [her] with it again.@  Officer Norman testified that he recovered a
loaded gun from Ms. Harris=s
purse, which was located inside the apartment. 
He stated that even though he could not recall if there was a round in
the chamber when he found the loaded gun, there were rounds in the magazine and
that the gun Acould
be made deadly quickly by just pulling the slide back and releasing@
because doing so causes a round to go into the chamber.  Officer Norman also testified at trial that a
firearm is a deadly weapon, even when not used to shoot someone and that the
injury to Ms. Harris=s head was consistent with Aa
blunt force, hard, isolated object.@  This evidence is legally sufficient to
support the jury=s finding that Appellant
used or exhibited a deadly weapon, a firearm, while assaulting Ms. Harris.  See Santacruz, 237 S.W.3d at 826.
Viewing
the evidence in a light most favorable to the prosecution, a rational jury
could have determined beyond a reasonable doubt that Appellant 
used or exhibited a deadly
weapon, a firearm, while intentionally or knowingly causing bodily injury to
Ms. Harris or threatening her with imminent bodily injury.  See Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778; Santacruz, 237
S.W.3d at 826.  We hold the evidence was
legally sufficient to support the jury=s
verdict, and we overrule Appellant=s
first and third points. 
D.  The Evidence is Factually Sufficient
In
his second and fourth points, Appellant contends that the evidence is factually
insufficient to prove that he committed aggravated assault and used or
exhibited a deadly weapon. 




Reviewing
all the evidence in a neutral light, we recall that Appellant told Officer
Norman that he and Ms. Harris had been wrestling, that he denied having a gun,
that he told Officer Norman that the gun belonged to Ms. Harris, and that
Officer Norman found the gun in Ms. Harris=s
purse.  We also recall that Ms. Harris
said she did not see Appellant go into her bedroom closet, that she helped
Officer Norman locate the gun in her bedroom closet, and that even though she
initially testified that the gun was in some luggage, it was actually in her
purse.  Ms. Harris also testified that
she did not scream during the incident, that she could be heard on the 9-1-1
tape saying, ADon=t
leave@ and
APlease
stay,@ and
that she did not tell the police about the bloody shirt and towel until a
couple of days after the incident. 
However, there was also evidence that Appellant struck Ms. Harris
approximately nine times with the bottom of the gun, that Ms. Harris=s
injuries were serious enough that she bled on the door and walls and required
medical attention, that Ms. Harris believed Appellant was going to kill her,
that Officer Norman saw blood on Appellant=s
hands immediately after the incident, and that Officer Norman recovered a
loaded gun while searching for it in the apartment. 




Viewing
the evidence in a neutral light, we conclude a rational trier of fact could
have found beyond a reasonable doubt that Appellant used or exhibited a deadly
weapon, a firearm, while intentionally or knowingly causing bodily injury to
Ms. Harris or threatening her with imminent bodily injury.  See Santacruz, 237 S.W.3d at 826
(holding evidence factually sufficient to support aggravated assault with a
deadly weapon conviction because victim testified the appellant struck her with
a rifle, police officer testified the victim=s
injuries were consistent with being struck by a blunt object, and evidence
other than the appellant=s and his sister=s
testimony did not support appellant=s
version of events).  We cannot say that
the evidence is so weak that the jury=s
determination was clearly wrong or manifestly unjust or that the conflicting
evidence so greatly outweighs the evidence supporting the conviction that the
jury=s
determination is manifestly unjust.  See
Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008); Watson,
204 S.W.3d at 414B15, 417.  We therefore hold the evidence was factually
sufficient to support the jury=s
verdict.  We overrule Appellant=s
second and fourth points.
V. 
Admission of Evidence
Appellant
contends in his fifth point that the trial court erred by admitting two
exhibits relating to his guilty plea in a previous case, Cause No. 1021549D. He
argues the exhibits should not have been admitted because the judgment was
signed by a judge other than the judge that presided over the plea
proceeding.  The State counters that
Appellant waived any error because he did not object at the time the evidence
was admitted at trial.  We agree with the
State.
Before
calling its first witness at trial, the State moved for the admission of State=s
Exhibit 2, the judgment in Cause No. 1021549D, and State=s
Exhibit 2-A, the judgment, indictment, written plea admonishments, certification
of right to appeal, and docket sheet in Cause No. 1021549D.  Specifically, the prosecutor stated, AJudge,
at this time, the State would offer into evidence, pursuant to the plea of true
of the defendant, for purposes of the record only, State=s
2-A; for all purposes, State=s 2.@  Appellant=s
counsel then stated, AThere=s no
objections, Your Honor.@  Appellant=s
counsel also stated that he had no objection to State=s
Exhibit 2-A when the State moved for its admission for all purposes during the
punishment phase of Appellant=s
trial. 




Because
Appellant did not object at trial to the admission of State=s
Exhibits 2 and 2-A, Appellant failed to preserve his complaint for appellate
review.  See Tex. R. App. P.
33.1(a); see also James v. State, 997 S.W.2d 898, 901 (Tex. App.CBeaumont
1999, no pet.) (holding the appellant failed to preserve his objection to a
potentially void judgment by failing to object to its admission at trial).  We overrule Appellant=s
fifth point.
VI. 
Conclusion
Having
overruled each of Appellant=s
five points, we affirm the trial court=s
judgment.
 
 
ANNE GARDNER
JUSTICE
 
PANEL:
LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
 
DO
NOT PUBLISH
Tex.
R. App. P. 47.2(b)
 
DELIVERED:  May 27, 2010




[1]See Tex. R. App. P.
47.4.


[2]See Tex. Penal Code Ann.
'' 22.01(a)(1), (2);
22.02(a)(2) (Vernon Supp. 2009).


