MODIFY and AFFIRM; and Opinion Filed February 10, 2014.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-00225-CR

                                ROSS BRANTLEY, Appellant
                                           V.
                               THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1300014-V

                              MEMORANDUM OPINION
                          Before Justices FitzGerald, Lang, and Fillmore
                                   Opinion by Justice Fillmore

       A jury convicted Ross Brantley of assault involving family violence, found that Brantley

used a deadly weapon during the assault, and assessed punishment of six years’ imprisonment.

In four points of error, Brantley asserts the evidence is insufficient to support either the deadly

weapon finding or the trial court’s assessment of court costs, and the judgment should be

modified to reflect that Brantley pleaded guilty to the offense and there was no plea bargain. The

State requests we further modify the judgment to reflect the case was tried to a jury. As

modified, we affirm the trial court’s judgment. We issue this memorandum opinion because the

law to be applied in this case is well settled. See TEX. R. APP. P. 47.4.
                                          Background

       On May 12, 2011, Brantley was married to, but not living with, Kardelia Smith.

Throughout the day, Smith and Brantley were arguing through text messages about Brantley’s

son living with him. According to Smith, Brantley also sent her text messages that led her to

believe he was being unfaithful. Although advised not to do so by Brantley and Vanessa Raab,

Brantley’s mother, Smith decided to go to Raab’s apartment, where Brantley was living, to

discuss the issues with him.

       Brantley was not at the apartment when Smith arrived, so she began talking to Raab

about the text messages she had received from Brantley. Brantley came home approximately

thirty minutes later, but refused to acknowledge Smith and went into his bedroom. Smith

followed Brantley into his bedroom and locked the door. Both Brantley and Smith testified they

had an altercation in the bedroom

       Smith testified that she reclined on the bed beside Brantley and attempted to talk to him.

Brantley turned his back to her and began looking at his Facebook page on his cellphone.

Brantley had a brief telephone conversation with the mother of one of his children and then

returned to his Facebook page. Smith saw a picture of a woman on Brantley’s Facebook page

and believed it was the woman who Brantley was “cheating with.”              Smith tried to grab

Brantley’s cellphone.

       According to Smith, Brantley jumped out of bed. Thinking that something might be in

the bed, Smith jumped up as well. Brantley then swung her around and began choking her with

his arms around her neck. Smith testified that Brantley was “very much taller” than she is, her

feet were off the floor, and Brantley was applying pressure with both arms. Smith could not

breathe and felt pain in her neck. Brantley choked Smith to the point that she urinated on herself.

After twenty or thirty seconds, Brantley threw her face-down on the bed. Smith began to scream

                                               –2–
and told Brantley to stop. According to Smith, Brantley then straddled her. Smith tried to turn

to get Brantley off of her, but could not turn because Brantley was too heavy. Brantley began to

punch Smith on her head and face and hit her fifty or sixty times. Smith testified that Brantley

was a professional boxer, and it felt as if somebody was dropping bricks on her head. Smith

thought she was going to die.

       Smith testified that, during the assault, Brantley’s wedding ring cut her face “completely

open.” She was required to have stitches to repair the cut. Her face was swollen and bruised.

She also had three fractured fingers, two on her left hand one and one on her right hand, from

attempting to protect her head from Brantley’s punches.

       Brantley admitted he had three previous assault convictions based on complaints by his

sister, his former wife, and the mother of three of his children. He also admitted that Smith

obtained a protective order against him following the altercation, and he was convicted of

violating the protective order. However, he denied that he assaulted Smith. According to

Brantley, if he hit someone fifty or sixty times, that person would be dead.

       Brantley testified he was bipolar and suffered from seizures. He had a seizure on May

12, 2011 and took medication for the seizure that makes him sleep. He was asleep in his

bedroom when Smith came in and snatched a towel that he was using to cover his face. Smith

wanted to talk to Brantley about his son being at the apartment. Smith started “ridiculing” him

about how he was unable to take care of his children, and he rolled over onto his stomach. Smith

then jumped on his back, straddled him, put him in a headlock, and started choking him. The

mother of one of Brantley’s children called, and Smith tried to take the cellphone away from

him. Smith then bit his ear and pulled back. When she did so, he ducked under her arm.

Smith’s wedding ring scratched her face, and she hit herself in the eye. Brantley denied that he

was wearing his wedding ring at the time.

                                               –3–
       Smith testified she left the apartment after Raab and her boyfriend entered the bedroom.

Brantley’s niece called 911, and Smith eventually went to a hospital for treatment. At Raab’s

insistence, Brantley left the apartment and attempted to turn himself in at Lew Sterrett.

       The jury convicted Brantley of assault involving family violence. During the punishment

phase of the trial, Smith testified it took her over two months to recover from the assault. During

the assault, she thought she was going to die or suffer serious bodily injury from Brantley

punching her. She believes that Brantley’s hands are a deadly weapon. The jury found that

Brantley used a deadly weapon, his hands, during the assault and assessed punishment of six

years’ imprisonment. In the judgment, the trial court assessed court costs of $219.

                                   Sufficiency of the Evidence

       In his first point of error, Brantley contends there is insufficient evidence to support the

jury’s finding that he used a deadly weapon during the assault. Brantley specifically argues

Smith did not suffer serious bodily injury and there was no testimony from a medical

professional or police officer that Brantley’s “assault with his hands was capable of causing

death or serious bodily injury in their manner of use or intended use.”

       We review the sufficiency of the evidence under the standard set out in Jackson v.

Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).

We examine all the evidence in the light most favorable to the verdict and determine whether any

rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011), cert.

denied, 132 S.Ct. 1763 (2012). The jury, as the fact finder, is entitled to judge the credibility of

                                                –4–
the witnesses, and can choose to believe all, some, or none of the testimony presented by the

parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We defer to the jury’s determinations of

credibility, and may not substitute our judgment for that of the fact finder. Jackson, 443 U.S. at

319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State,

29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate

court “may not re-weigh the evidence and substitute our judgment for that of the jury”).

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

causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp.

2013); see also McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). “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.” TEX. PENAL CODE ANN. § 1.07(a)(46). While hands are not a deadly weapon per se, a

jury may find that they were used as a deadly weapon based upon their manner of use or

intended use and their capacity to produce death or serious bodily injury. Lane v. State, 151

S.W.3d 188, 191 (Tex. Crim. App. 2004) (citing Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim.

App. [Panel Op.] 1983)). The State, however, need not show that the hands actually caused

serious bodily injury or death, only that the hands in the manner of their use were capable of

causing death or serious bodily injury. McCain, 22 S.W.3d at 503; see also Tucker v. State, 274

S.W.3d 688, 691 (Tex. Crim. App. 2008). Either expert testimony or lay testimony may be

sufficient to support a deadly weapon finding. English v. State, 647 S.W.2d 667, 669 (Tex.

Crim. App. 1983); Wilson v. State, 391 S.W.3d 131, 137 (Tex. App.—Texarkana 2012, no pet.).

        When determining whether a hand or a fist is a deadly weapon, the jury may consider all

of the evidence presented, including the physical proximity between the alleged victim and the

                                               –5–
object; any threats or words used by the accused; the size and shape of the object; the potential of

the object to inflict death or serious bodily injury; the manner in which the accused allegedly

used the object; testimony by the victim that she feared death or serious bodily injury; and

testimony as to the weapon’s potential for causing death or serious bodily injury. Kennedy v.

State, 402 S.W.3d 796, 802 (Tex. App.—Fort Worth 2013, pet. filed) (mem. op.) (citing Brown

v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986)); Romero v. State, 331 S.W.3d 82, 83

(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). “No one factor is determinative, and an

appellate court must examine each case on its own facts to determine whether the fact finder

could have concluded from the surrounding circumstances that the object used was a deadly

weapon.” In re S.B., 117 S.W.3d 443, 447 (Tex. App.—Fort Worth 2003, no pet.) (citing Brown,

716 S.W.2d at 947).

       In this case, the evidence showed that Brantley was both taller and heavier than Smith.

Smith testified that Brantley used his forearms to choke her until she urinated on herself. She

suffered pain from the choking and was unable to breathe. Smith also testified that, after

Brantley threw her on the bed, he straddled her and hit her in the face and head numerous times.

Brantley was a professional boxer and, according to Smith, the blows felt like bricks falling on

her head. She thought that she was going to die or suffer serious bodily injury. In Smith’s

opinion, Brantley’s hands were a deadly weapon. Brantley confirmed that he was a professional

boxer and testified that, if he hit somebody fifty or sixty times, they would be dead. Photographs

taken of Smith after the altercation showed that her face was extremely swollen and bruised and

that stiches were required to close the cut in her cheek. Smith testified she also had three

fractured fingers from trying to defend her head from the blows.

       Although Brantley denied assaulting Smith and contended Smith was the aggressor, it

was the role of the jury to make credibility determinations and resolve the conflicts in the

                                                –6–
evidence. See Jackson, 443 U.S. at 319; Williams, 235 S.W.3d at 751. Reviewing all the

evidence in the light most favorable to the jury’s verdict, we conclude a rational jury could have

found that Brantley’s hands were a deadly weapon. See Jackson, 443 U.S. at 319; Matlock, 392

S.W.3d at 667; see also Lane, 151 S.W.3d at 192 (evidence that closed hand was used to strike

victim in head sufficient to support finding hand was deadly weapon); Judd v. State, 923 S.W.2d

135, 140–41 (Tex. App.—Fort Worth 1996, pet. ref’d) (evidence that hands were used to choke

victim is sufficient to support finding hands were a deadly weapon). We resolve Brantley’s first

point of error against him.

                                             Court Costs

        In his fourth point of error, Brantley requests we modify the trial court’s judgment to

delete the requirement he pay court costs because the clerk’s record does not contain a bill of

costs. If a criminal action is appealed, “an officer of the court shall certify and sign a bill of costs

stating the costs that have accrued and send the bill of costs to the court to which the action or

proceeding is . . . appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006). Costs may

not be collected from the person charged with the costs until a written bill, containing the items

of cost, is produced and signed by the officer who charged the cost or the officer entitled to

receive payment for the cost. Id. art. 103.001.

        The clerk’s record in this case did not contain a copy of the bill of costs. In light of

Brantley’s specific complaint that the clerk’s record did not contain a bill of costs, we ordered

the Dallas County District Clerk to file a supplemental clerk’s record containing the certified bill

of costs associated with this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1) (rules of

appellate procedure allow supplementation of clerk’s record if relevant items have been omitted).

Brantley’s complaint that the evidence is insufficient to support the imposition of costs because

the clerk’s record did not contain a bill of costs is now moot. See Coronel v. State, No. 05–12–

                                                  –7–
00493–CR, 2013 WL 3874446, at *4 (Tex. App.—Dallas July 29, 2013, pet. ref’d) (citing

Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.)).                                                         We resolve

Brantley’s fourth point of error against him. 1

                                                    Modification of Judgment

           In his second and third points of error, Brantley requests we modify the trial court’s

judgment to accurately reflect that he pleaded guilty to the offense and no plea bargain was

entered.       The State concedes the modifications requested by Brantley are appropriate and

requests that we further modify the trial court’s judgment to reflect Brantley did not waive his

right to trial by jury. We resolve Brantley’s second and third points of error in his favor.

           We may modify a trial court’s written judgment to correct a clerical error when we have

the necessary information before us to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

App.—Dallas 1991, pet. ref’d). The trial court’s judgment erroneously reflects that Brantley

waived his right to a jury trial and the case was tried to the court, Brantley pleaded guilty to the

offense, and the term of the plea bargain was six years’ imprisonment. Consequently, we reform

the trial court’s judgment to reflect it is a “Judgment of Conviction by Jury,” Brantley pleaded

not guilty to the offense, and the verdict of the jury was “guilty.”




   1
       We note that Brantley does not challenge the propriety or legality of the specific costs assessed; therefore, we do not address these matters.



                                                                       –8–
       As modified, the trial court’s judgment is affirmed.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130225F.U05




                                               –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ROSS BRANTLEY, Appellant                            On Appeal from the 292nd Judicial District
                                                    Court, Dallas County, Texas,
No. 05-13-00225-CR         V.                       Trial Court Cause No. F-1300014-V.
                                                    Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                        Justices FitzGerald and Lang participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The title of the judgment is modified to state “JUDGMENT OF CONVICTION
       BY JURY”;

       The section of the judgment titled “Plea to Offense” is modified to state “NOT
       GUILTY”;

       The section of the judgment titled “Terms of Plea Bargain” is modified to state
       “Verdict of Jury” and the substance of that section is modified to state
       “GUILTY.”

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 10th day of February, 2014.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE



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