                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-16-00009-CR

                                        Darryn BURGESS,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 437th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2014CR0646
                           Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 7, 2016

AFFIRMED AS MODIFIED

           Darryn Burgess appeals his conviction for Assault Upon a Public Servant, with an

affirmative deadly weapon finding. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp.

2016). We affirm the trial court’s judgment.

                                      FACTUAL BACKGROUND

           On the morning of November 10, 2013, Burgess sought treatment at Christus Alon Health

Emergency Room in San Antonio for an apparent snake or spider bite on his right arm. Upon his

arrival, he was treated by a triage nurse who quickly realized there were no observable signs of
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injury. The nurse, who believed Burgess was hallucinating due to his paranoia and other irrational

behavior, reported her findings to the attending physician. The attending physician, Dr. Portillo,

learned that Burgess had recently used methamphetamine and marijuana. Dr. Portillo concluded

that Burgess was suffering from some form of psychosis and directed the nursing staff to initiate

an emergency detention.

       San Antonio Police Officer Roberto Aguilar was called to the scene to detain and transport

Burgess to a psychological facility for further evaluation. Officer Aguilar arrived, introduced

himself to Burgess, and spoke with him for about 15-20 minutes. Burgess insisted he had been

poisoned by a syringe or spiders, and his demeanor vacillated between calm and agitated.

Meanwhile, Officer Yvette Meade arrived as backup. When Officer Aguilar informed Burgess

that he was being detained for medical reasons and attempted to handcuff him, Burgess became

agitated and began to physically resist. Burgess’s mother had arrived and requested to take

Burgess to the hospital herself. Upon the officers’ refusal, she grabbed Officer Meade’s arm and

tried to prevent the officers from handcuffing her son. Officer Meade told Burgess’s mother

several times to move away and eventually pushed her back. When Officer Meade touched

Burgess’s mother, Burgess became irate, leading to a further escalation of the situation.

       With the officers still trying to place the handcuffs on him, Burgess, the larger man, began

pushing and wrestling to get away. Burgess pushed Officer Aguilar off of him, and raised his

hands up in a fighting stance. Officer Aguilar used his Taser on Burgess in an attempt to subdue

him, but it only further infuriated him. After ripping the Taser probes off his chest, Burgess

attacked both officers. Burgess punched Officer Aguilar in his left eye, causing a flow of blood

and knocking him to the ground. Burgess then turned and punched Officer Meade twice in her

face, causing her to lose consciousness and fall to the floor. Officer Aguilar saw Officer Meade



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fall and immediately attempted to rise to his feet, but Burgess punched Aguilar in the face again

with such force that Aguilar saw white lights.

        The struggle between Burgess and Officer Aguilar continued for some time in Burgess’s

favor, with Burgess landing multiple punches to Aguilar’s head while Aguilar tried to defend

himself and punch back. However, because of the bleeding above Officer Aguilar’s left eye, his

vision was blurry. At one point, both men fell to the ground, with Officer Aguilar landing on his

back and Burgess landing on top of him and continuing to punch Aguilar in the face. With his left

arm pinned down by the weight of Burgess’s body, Officer Aguilar drew his handgun with his

right hand and fired at Burgess, but missed. Burgess immediately pinned Officer Aguilar’s hand

holding the gun against the wall and attempted to pry the gun out of the officer’s hand. Upon

hearing the gunshot, Officer Meade, who had recently regained consciousness, noticed Officer

Aguilar struggling on the floor with Burgess. Officer Meade was able to get up and make her way

over to the two men. Officer Aguilar was yelling at Officer Meade that Burgess was trying to take

away his gun and instructed her to shoot Burgess. Officer Aguilar testified that, at that moment,

he believed he would probably lose his life. Officer Meade, whose own vision was blurry from a

concussion, straddled Burgess’s back and shot him at close range, ending the struggle. Officer

Aguilar, who was bleeding from his face as well as from a gunshot wound to his lower leg, was

taken to the hospital and treated for his injuries.

        Burgess was indicted on three counts arising out of his struggle with Officer Aguilar:

Aggravated Assault of a Public Servant, which caused the officer’s firearm to discharge and strike

him (Count I); Assault of a Public Servant, by striking the officer with his hands (Count II); and

Taking or Attempting to Take a Weapon (i.e., firearm) from a Peace Officer (Count III). At the

conclusion of his trial, the jury acquitted Burgess on Counts I and III involving the firearm, but

found him guilty on Count II involving assault committed with his hands. The jury also made an
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affirmative finding that Burgess used a deadly weapon, to wit: his hands, in the commission of the

assault. Because Burgess pled true to two prior felony convictions, the punishment range was

enhanced to confinement for 25-99 years or life. The trial court sentenced Burgess to 50 years’

imprisonment and imposed a $2,000 fine.

                                             ANALYSIS

Sufficiency of the Evidence – Deadly Weapon Finding

       On appeal, Burgess raises a single issue, arguing the evidence is insufficient to support the

jury’s affirmative finding that he used his hands as a deadly weapon during the commission of the

assault against Officer Aguilar.

       In reviewing the legal sufficiency of the evidence to support a deadly weapon finding, we

consider all of the evidence in the light most favorable to the finding and determine whether, based

on the evidence and any reasonable inferences, a rational jury could have found beyond a

reasonable doubt that the weapon alleged in the indictment was capable of causing death or serious

bodily injury in the manner of its use or intended use. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010); Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004). We presume the

jury resolved any conflicts in the evidence in favor of its verdict. Curry v. State, 30 S.W.3d 394,

406 (Tex. Crim. App. 2000).

       As pled in Count II of the indictment and submitted to the jury, the relevant elements of

Assault upon a Public Servant are that a person (1) intentionally, knowingly, or recklessly causes

bodily injury to another, (2) that the person knows is a public servant, (3) while the public servant

is lawfully discharging an official duty. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp.

2016); Id. § 1.07(a)(8) (West Supp. 2016) (“bodily injury” includes physical pain and any

impairment of physical condition). Burgess does not challenge the sufficiency of the evidence to

support the jury’s findings on these elements. Indeed, the evidence is undisputed that Burgess
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intentionally and repeatedly struck Officer Aguilar in the face, causing cuts and bleeding, while

the officer was in uniform and lawfully discharging his official duty by attempting to detain

Burgess.

           Burgess does challenge the jury’s deadly weapon finding, arguing the evidence was legally

insufficient to establish that his hands were used as deadly weapons during the assault on Officer

Aguilar. 1 A “deadly weapon” is defined as “anything that in the manner of its use or intended use

is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B) (West Supp. 2016).

“‘Serious 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.” Id. § 1.07(a)(46) (West Supp. 2016). Burgess contends the trial

evidence did not show that Officer Aguilar suffered serious life-threatening injuries, as required

to support a finding of “serious bodily injury” and use of a deadly weapon.

           A weapon can be deadly by its design or by its use. See Id. §1.07(a)(17)(A), (B) (West

Supp. 2016); see also Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008). It is well

established that a defendant’s hands may, depending on the manner of their use, constitute a deadly

weapon. Turner v. State, 664 S.W.2d 86, 89-90 (Tex. Crim. App. [Panel Op.] 1983). To warrant

a deadly weapon finding based on a defendant’s use of his hands, the State must prove that the

defendant’s hands, in the manner of their use, were capable of causing either death or serious

bodily injury. TEX. PENAL CODE ANN. §1.07(a)(17)(B) (West Supp. 2016) (emphasis added);

Tucker, 274 S.W.3d at 691. The use of the word “capable” in section 1.07(a)(17)(B) means the

statute covers “conduct that threatens deadly force,” even if the actor has no intention of actually

using deadly force and does not actually use deadly force. McCain v. State, 22 S.W.3d 497, 503



1
    The indictment alleged that Burgess caused bodily injury to Officer Aguilar by striking him with Burgess’s hands.

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(Tex. Crim. App. 2000). Therefore, while the victim’s injuries are a factor to be considered, the

State need not prove that the defendant actually intended to cause serious bodily injury or death,

or that his hands actually caused serious bodily injury or death. Hopper v. State, 483 S.W.3d 235,

239 (Tex. App.—Fort Worth 2016, pet. ref’d) (citing Tucker, 274 S.W.3d at 691); see Turner, 664

S.W.2d at 90 (victim’s injuries are a factor in determining whether defendant’s hands were deadly

weapon).    Finally, a jury may consider whether the victim feared death at the time when

determining whether a deadly weapon was used in the commission of an assaultive offense.

Quincy v. State, 304 S.W.3d 489, 499-500 (Tex. App.—Amarillo 2009, no pet.).

       The evidence shows that, until Officer Meade intervened, Burgess was overpowering

Officer Aguilar. Officer Aguilar stated that Burgess first punched him in the left eye, drawing a

stream of blood, and then continued to repeatedly punch him in the face and head so many times

that he lost count. Officer Aguilar testified that Burgess was physically larger than him and that

his fist was “massive.” Burgess knocked Officer Aguilar down to the ground at least twice. When

Officer Aguilar attempted to get back up after the first time, Burgess punched him in the face with

such force that Officer Aguilar stated he “saw white lights.” The officer testified that, at that point,

he realized he was going to have to “fight for [his] life.” Officer Aguilar testified that when he fell

the second time, Burgess landed on top of him and continued punching him in the face, while

Aguilar’s left arm was pinned down underneath Burgess’s body. Officer Aguilar testified that,

without Officer Meade’s intervention in shooting Burgess, he believed that he would have died on

the floor due to the beating he took at Burgess’s hands.

       As a result of the blows to the head by Burgess, Officer Aguilar sustained lacerations above

his left eye and below his right eye which required six to seven stiches to close, as well as

significant swelling in both eyes, and a fractured nose. Dr. Kimberly Molina testified that, in her

experience, an individual can be killed by blows to the head with fists. Dr. Molina further testified
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that, given the circumstances surrounding Officer Aguilar’s inability to defend himself, the

punches to the head, if continued, could have led to serious bodily injury or death.

       Based on the close physical proximity between Burgess and Officer Aguilar during the

struggle, the physical force and repetitive nature of Burgess’s punches, the use of Aguilar’s head

as the target for the punches, the officer’s vulnerable position down on the ground, and the

testimony by Officer Aguilar that he feared he would lose his life, we conclude that Burgess’s

hands, in the manner of their use, were capable of causing death or serious bodily injury to Officer

Aguilar. See Hopper, 483 S.W.3d at 239 (“[a]s long as the totality of the evidence showed that

[the defendant’s] hands were capable of causing serious bodily injury or death in the manner [the

defendant] used them, the jury was authorized to find that [the defendant’s] hand qualified as a

deadly weapon.”). Therefore, viewing all the evidence in the light most favorable to the jury’s

finding, we hold the evidence is sufficient to support the deadly weapon finding and we overrule

Burgess’s sole issue on appeal.

Correction of Judgment

       As the State points out, the judgment incorrectly states that Burgess was convicted of

“Aggravated Assault Against a Public Servant (Habitual).” The jury acquitted Burgess of that

offense, which was charged in Count I of the indictment. Instead, the jury convicted Burgess of

“Assault Upon a Public Servant,” as charged in Count II of the indictment, and also made an

affirmative deadly weapon finding. Accordingly, the trial court’s judgment is modified to reflect

that Burgess was convicted of “Assault of Upon Public Servant (Habitual)” with an affirmative

finding of a deadly weapon. See TEX. R. APP. P. 43.2(b); see also Barrera v. State, 321 S.W.3d

137, 156 (Tex. App.—San Antonio 2010, pet. ref’d).




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                                         CONCLUSION

       Based on the foregoing reasons, we overrule Burgess’s sole issue on appeal. Because the

judgment misstates the offense of conviction, we modify the judgment to reflect that Burgess was

convicted of Count II, “Assault Upon a Public Servant (Habitual),” with an affirmative deadly

weapon finding. The trial court’s judgment is affirmed as modified.


                                                Rebeca C. Martinez, Justice

DO NOT PUBLISH




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