                         NUMBER 13-14-00619-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


COURTNEY HENDERSON,                                                     Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 105th District Court
                        of Nueces County, Texas.


                         MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Perkes
      Appellant Courtney Henderson appeals his conviction for aggravated robbery, a

first-degree felony, enhanced by appellant’s prior felony conviction. See TEX. PENAL

CODE ANN. §§ 12.42(c)(1), 29.02, 29.03(a)(2) (West, Westlaw through 2015 R.S). The

jury found appellant guilty, and the trial court assessed punishment at fifteen years’
confinement in the Institutional Division of the Texas Department of Criminal Justice. By

one issue, appellant argues the evidence is insufficient to support his conviction for

aggravated robbery, particularly the aggravated element of using a deadly weapon during

the commission of the crime. See id. § 29.03(a)(2). We affirm.

                                            I. BACKGROUND

         Yvonne Martinez testified that her vehicle was stopped near the hospital at the

intersection of Morgan Avenue and Nineteenth Street when appellant entered her vehicle

from the front passenger side. 1 Appellant pressed his foot on the accelerator while

Martinez pressed on the brake. Martinez stated that appellant began hitting her head

with his fists. Martinez explained that as she struggled with appellant, he bit her and “his

mouth . . . locked on [her] forehead.” At the same time, appellant tried to push her out

of the car. Martinez testified that appellant bit her more than one time during the struggle,

leaving bite marks and bruises on her back, arms, and forehead right above her eyebrow.

The trial court admitted photographs of Martinez’s injuries which show several bruises to

the eyelid and forehead, and a laceration above the eyebrow. Appellant did not say

anything to Martinez during the altercation; however, Martinez testified that she felt

threatened and scared by the attack. Martinez testified that the bite to her forehead left

a scar. She stated that she was sore from the bite for “maybe two months, two and a

half.”




          1 Dr. Daniela Badea-Mic, the director for psychiatric triage at Christus Spohn Memorial Hospital,

testified that appellant arrived at the hospital seeking mental health treatment earlier that day. Appellant’s
lab results from that day indicated the presence of the drug phencyclidine (PCP) in his blood.
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       Brenda Gonzalez, who was at a nearby house, testified she heard screaming and

went outside to see what was happening. Gonzalez saw appellant on top of Martinez

and saw that he was repeatedly punching and biting her. Gonzalez approached the

vehicle and opened the driver’s side door. Gonzalez told appellant that she had a taser,

which caused appellant to grab Martinez’s keys from the ignition and flee the scene.

       Adelita Crosby was in her vehicle at the same intersection as Martinez. Crosby

testified that she heard Martinez screaming.        Crosby stated she observed Martinez

bleeding heavily from her face after the assault.

       Paramedic Marco Vasquez testified that when he examined Martinez at the scene,

he found a laceration above her right eye.

       Detective Steven Cox with the Corpus Christi Police Department observed

Martinez at the scene.    He testified “[t]he most prominent [injury] was her right eye

[which] was almost completely swollen shut . . . . The opening of the eye was almost

totally closed. There was a laceration on the top of that wound that was linear in nature.

I believe it was right around the eyebrow.” After being asked whether human teeth can

be a deadly weapon, Detective Cox testified: “Absolutely. When applied in the proper

manner in the proper place on the body with an appropriate amount of force.”

       Dr. Charles Close, the emergency room physician who treated Martinez, testified

that Martinez had a laceration on her right eyebrow with bruising around that area. Dr.

Close stated that bite wounds can cause serious infections and that an infection in the

laceration over the eyebrow could move into the eye itself and require it to be removed.

Dr. Close further stated, in his medical opinion, if left untreated, a human bite is capable


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of causing serious bodily injury. He also testified to the risk for transmission of diseases,

including HIV, from a human bite.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);

see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The

fact-finder is the exclusive judge of the credibility of witnesses and of the weight to be

given to their testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-

finder’s exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000).

We resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State,

767 S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc). Juries are permitted to make

reasonable inferences from the evidence presented at trial, and circumstantial evidence

is as probative as direct evidence in establishing the guilt of an actor. Hooper v. State,

214 S.W.3d 9, 14 (Tex. Crim. App. 2007).

       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773

(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). Such a charge is one that accurately sets out the law, is authorized by the


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indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Id. To convict appellant of aggravated robbery under a

hypothetically correct jury charge, the State was required to prove appellant: (1) in the

course of committing theft and with intent to obtain or maintain control of the property;

(2) intentionally or knowingly or recklessly; (3) caused bodily injury to another or

threatened or placed another in fear of imminent bodily injury or death; and (4) used or

exhibited a deadly weapon. See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2).

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

use is capable of causing death or serious injury.”          See TEX. PENAL CODE ANN. §

1.07(a)(17) (West, Westlaw through 2015 R.S.). The State is not required to show that

the “use or intended use causes death or serious bodily injury” but that the “use or

intended use is capable of causing death or serious bodily injury.” McCain v. State, 22

S.W.3d 497, 503 (Tex. Crim. App. 2000) (emphasis added).

                                       III. DISCUSSION

       Appellant argues that the evidence is insufficient to show he committed the offense

of aggravated robbery. Specifically, he complains that the evidence fails to establish his

teeth were capable of causing death or serious bodily injury because: (1) “teeth are

naturally part of the human anatomy and cannot be picked up and carried, or thrown at

anyone; nor are [teeth] designed, made or adapted for the purpose of inflicting bodily

injury;” (2) there is no evidence that Martinez suffered any serious bodily injury; (3) “the

evidence fails to establish any intent [to cause death or serious bodily injury] on the part


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of [appellant];”2 and (4) the State cannot rely on evidence that may “hypothetically cause

serious bodily injury.”

        Factors that may be considered in determining whether an object is being used as

a deadly weapon include: (1) the words of the accused, such as threats; (2) the intended

use of the object; (3) its size, shape, and sharpness; (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) the physical proximity of the

parties; and (8) testimony as to the potential of the object for causing death or serious

bodily injury. See Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991); Brown

v. State, 716 S.W.2d 939, 946–47 (Tex. Crim. App. 1986); Williams v. State, 575 S.W.2d

30, 32 (Tex. Crim. App. 1979); Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref'd); Magana v. State, 230 S.W.3d 411, 414 (Tex. App.—San

Antonio 2007, pet. ref’d).

        The Texas Court of Criminal Appeals has stated that the most important of the

above factors is the manner in which the object is used. See Dominique v. State, 598

S.W.2d 285, 286 (Tex. Crim. App. 1980) (citing Denham v. State, 574 S.W.2d 129 (Tex.

Crim. App. 1978)). Here, appellant was on top of Martinez inside her vehicle, punching

and biting her at the time of the attack. Despite the lack of verbal threats, appellant was

using his teeth in a manner that had the capability of causing substantial damage to her




         2 “The provision's plain 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.” McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.
2000). “The placement of the word ‘capable’ in the provision enables the statute to cover conduct that
threatens deadly force, even if the actor has no intention of actually using deadly force.” Id.
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eye and disfiguring her face. Specifically, the manner in which appellant was using his

teeth to bite and hold onto Martinez close to her eye, while continuing to punch her and

attempting to push her out of her car, suggests the capacity to cause either blindness or

permanent disfigurement—loss of an eye, eyebrow, eyelid. The photographs admitted

at trial show the severity and extent of the injuries, and the jury could draw on its own

common sense and experience to infer the possibility that this bite could have resulted in

blindness or permanent disfigurement. See Acosta v. State, 429 S.W.3d 621, 625 (Tex.

Crim. App. 2014).

      Moreover, the State presented evidence regarding the capability of a human bite

to cause death or serious bodily injury. Dr. Close testified regarding the possibility of

infection as a result of a human bite, including the risk for transmission of diseases

including HIV. See McCain, 22 S.W.3d at 503; see also White v. State, No. 02-12-

00087-CR, 2013 WL 4210827, at *17 (Tex. App.—Fort Worth Aug. 15, 2013, no pet.)

(mem. op., not designated for publication) (determining that a jury could have found

homemade spear that was made from rolled up paper with a staple on the end was a

deadly weapon when it was used to jab correctional officer in the cheek because the

evidence showed that the object was capable of puncturing the skin and causing injury—

from damage to an unprotected eye to infection with a terminal disease).

      We conclude that a rational trier of fact could have found that appellant’s teeth,

considering the manner of their use during the robbery, were capable of causing serious

bodily injury. See McCain, 22 S.W.3d at 503; Johnson, 364 S.W.3d at 293–94; see also

Jimenez v. State, No. 07-04-0044-CR, 2005 WL 1743792, at *2 (Tex. App.—Amarillo,


                                            7
July 25, 2005, pet. ref’d) (mem. op., not designated for publication) (holding that the

evidence was sufficient to establish appellant’s teeth were capable of causing serious

bodily injury when used to bite a finger, given the injuries sustained from the bite and the

treating physician’s testimony that “a human bite . . . wound . . . was especially vulnerable

to infection”); Taylor v. State, No. 05-01-00763-CR, 2002 WL 193234, at *3 (Tex. App.—

Dallas, Feb. 8, 2002, no pet.) (mem. op., not designated for publication) (holding that the

evidence was legally sufficient to support the deadly weapon finding where the

complainant testified she spent five days in the hospital, took antibiotics to avoid infection

from a human bite, and a police officer testified that a human bite can be deadly.).

Therefore, we hold that the evidence is legally sufficient to support appellant’s

aggravated-robbery conviction. See Johnson, 364 S.W.3d at 293–94. We overrule

appellant’s issue.

                                      IV. CONCLUSION

       We affirm the judgment of the trial court.



                                                                 GREGORY T. PERKES
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of July, 2016.




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