      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00689-CR



                               Preston Joe Sharpnack, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
        NO. D-1-DC-13-900164, HONORABLE KAREN SAGE, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found Preston Joe Sharpnack guilty of aggravated assault with a deadly

weapon. The trial court assessed an agreed sentence of ten years in prison. Sharpnack contends that

the finding that he used his hand as a deadly weapon was not supported by the evidence. We will

affirm the judgment.

               Though there is some disagreement about the nature and sequence of the events

that brought Sharpnack into contact with Matthew Casey on a downtown Austin street shortly

after midnight on Labor Day, those differences are irrelevant to the issue presented to this Court

on appeal. Sharpnack undisputedly punched Casey on the left side of his jaw. Casey fell—some

witnesses said he appeared to have been knocked unconscious immediately—and hit his head on the

sidewalk. He incurred a subdural hematoma near the base of his skull, his brain swelled, and he died

despite brain surgery and treatment.
               We will review the record to determine whether, after viewing the evidence in the

light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable

doubt that Sharpnack’s hand was a deadly weapon. See Brister v. State, 449 S.W.3d 490, 493

(Tex. Crim. App. 2014). To be legally sufficient to sustain a deadly weapon finding, the evidence

must demonstrate that: (1) the object meets the statutory definition of a dangerous weapon; (2) the

deadly weapon was used or exhibited during the transaction from which the felony conviction was

obtained; and (3) other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798

(Tex. Crim. App. 2005). Only the first element is disputed in this appeal.

               The definition of “deadly weapon” includes “anything that in the manner of its use or

intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07(a)(17)(B).

A hand can be a deadly weapon because a closed fist striking a person’s head can cause serious

physical injury even when the blow does not cause death. Lane v. State, 151 S.W.3d 188, 191

(Tex. Crim. App. 2004). The State need not show that the hand actually caused serious bodily injury

so long as it shows that the hand was capable of causing serious bodily injury in the manner of its

use. Jefferson v. State, 974 S.W.2d 887, 892 (Tex. App.—Austin 1998, no pet.). The fact that an

item could be used as a deadly weapon does not prove that it is a deadly weapon—the statute

requires proof that the object was used or intended to be used in a way that made it capable of

causing serious bodily injury or death. Johnston v. State, 115 S.W.3d 761, 763 (Tex. App.—Austin

2003), aff’d, 145 S.W.3d 215 (Tex. Crim. App. 2004).1


       1
          Sharpnack asserts that prosecutors seeking a deadly-weapon finding must show that the
object “caused a fatal wound.” See Parris v. State, 757 S.W.2d 842, 846 (Tex. App.—Dallas 1988,
pet. ref’d). That language was used in the context of a murder case and is inapplicable to this

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                Sharpnack contends that the evidence is insufficient to show that he used or exhibited

his hand as a deadly weapon. He contends that he was defending his female companion with whom

Casey had argued.2 He relies on medical expert testimony that the injury he directly inflicted by his

punch was not sufficient by itself to kill or cause serious bodily injury, and that Casey’s intoxication

made him susceptible to the unconsciousness that caused him to fall and hit his head on the sidewalk.

Sharpnack concludes that his punch was too attenuated from the fatal brain injury caused by Casey’s

subsequent contact with the sidewalk to classify his hand as a deadly weapon.

                The neurosurgeon who treated Casey and the medical examiner both testified

regarding how a hand can be a deadly weapon. The neurosurgeon explained that both a punch and

hitting one’s head on a sidewalk can cause a blood clot in the brain. He testified that Casey’s

condition was consistent with being punched with such force that he fell and hit his head. The

neurosurgeon said that the blows caused the blot clot and brain swelling that led to Casey’s death.

The medical examiner testified that a blunt-force injury to the back of Casey’s head caused his death,

and she classified it as a homicide. She answered “yes” when asked if a person’s hand is capable

of causing death or serious bodily injury in the manner of its use when the person strikes another

with his hand, causing the person struck to fall and hit his head on the pavement and suffer a brain

injury that leads to death.




aggravated assault case. See id. at 843. No fatal wound must be shown under either the definition
of “deadly weapon” or the offense of aggravated assault. See Tex. Penal Code §§ 1.07(a)(17)(B)
(deadly weapon), 22.02(a) (aggravated assault).
       2
         The jury was charged on self-defense and defense of others, but necessarily rejected those
defenses in finding Sharpnack guilty of aggravated assault.

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               The State also relies on testimony about the nature and effect of Sharpnack’s punch

specifically. A bystander characterized the punch as “forceful” and audible from about 100 feet

away. The witness testified that Casey was not in a defensive stance and appeared to be caught off

guard by the punch. The witness said that Casey buckled and fell over immediately like a rag doll,

as if he was unconscious before he hit the ground. A paramedic who treated the victim testified that

Casey was unconscious and bleeding from his left ear, with a bruise on his left jaw.

               We will examine these facts and arguments in light of guiding authority from cases

dealing with deadly-weapon findings. See Kennedy v. State, 402 S.W.3d 796, 800 (Tex. App.—Fort

Worth 2013, pet. ref’d); Johnston, 115 S.W.3d at 764; Jefferson, 974 S.W.2d at 892.

               The fact that an object can be used to inflict serious bodily injury or death does not

make it a deadly weapon for all purposes. Johnston, 115 S.W.3d at 764. In that case, the defendant

used a cigarette to make one undisputedly “not serious” burn on a child’s hand. Id. This Court

found that, even though a cigarette could be used to cause burns that could result in serious bodily

injury or death, the evidence was insufficient to prove that Johnston intended to use the cigarette in

a manner that could cause serious bodily injury or death. Id.

               Using the weapon in a manner that can cause serious injury or death is sufficient for

the deadly-weapon finding even if the victim does not suffer such injuries. Jefferson, 974 S.W.2d

at 892. In that case, this Court affirmed a jury finding that the defendant used his hands as a deadly

weapon when he punched the victim in the face several times, causing the victim’s nose to swell,

his cheek to have numbness, his jaw to be sore, the area around his eye to bruise, and his eyes to

suffer blurred vision. Id. The victim’s nose was not broken and he did not lose his sense of smell



                                                  4
or taste. Id. He did not lose consciousness and was “not subject to a substantial risk of death.” Id.

This Court nevertheless found that the defendant’s hands were a deadly weapon based on evidence

that the defendant punched the victim in the face several times and that a person who is hit

repeatedly in the face by hands can suffer serious bodily injury such as brain damage, blindness, a

loss of the sense of smell, and blurred vision. Id.

                A victim’s susceptibility to injury can affect whether an object used against him is

a deadly weapon. Kennedy, 402 S.W.3d at 800. “[A] person who uses a weapon to illegally assault

another person must take his victim as he finds [him].” Id. In that case, the defendant stealing a

television set from a store pushed a store employee out of his way. Id. at 801. The employee fell,

hit his head on the concrete floor, suffered a skull fracture and brain bruise, and died a few days later.

Id. The employee was suffering from late-stage liver disease that made him susceptible to extended

bleeding, and the medical examiner testified that the employee’s compromised condition meant that

the defendant’s push was capable of causing death or serious bodily injury. Id. The court held that,

under these circumstances, the evidence was sufficient to support a finding that the defendant used

his hands or the television in a manner that was capable of causing serious bodily injury or death.

                Whether Sharpnack intended to kill Casey was not the issue before the jury and it

is not the issue before this Court. The question is whether Sharpnack’s hand was, in the manner of

its use or intended use, capable of causing serious bodily injury or death. See Tex. Penal Code

§ 1.04(a)(17)(B). There was testimony that a hand is theoretically capable of causing serious bodily

injury and death, and more specifically that a punch to the face that causes unconsciousness

and an unbroken fall to the sidewalk can and did result in death in this case. Though there was



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testimony that Casey angrily approached Sharpnack and his companion threatening to hit them, there

was also testimony that Casey was intoxicated and unsuspecting. In the latter scenario, Casey was

perhaps more vulnerable to the full force of Sharpnack’s punch. According to one witness, the

punch was powerful enough to be audible down a downtown block. Testimony showed that, when

punched, Casey fell instantly and hit his head on the sidewalk and later died from his injuries. On

this record, we cannot say that no rational jury could have found that Sharpnack’s hand was used or

intended to be used in a manner capable of causing serious bodily injury and death.

                      We affirm the judgment.




                                             Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: July 9, 2015

Do Not Publish




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