                                                                                   ACCEPTED
                                                                               03-14-00654-CR
                                                                                       7286107
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                         10/8/2015 10:54:21 AM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK
                       No. 03-14-00654-CR

           In the Court of Appeals for the Third District FILED IN
                                                    3rd COURT OF APPEALS
                           Austin, Texas                 AUSTIN, TEXAS
                                                     10/8/2015 10:54:21 AM
                          James Palacio,                JEFFREY D. KYLE
                                                              Clerk
                            Appellant

                                 v.

                        The State of Texas,
                             Appellee

           Appeal from the 427th Judicial District Court
                      Travis County, Texas
               Cause Number D-1-DC-14-904021
            Honorable Judge Jim Coronado, Presiding

                         STATE’S BRIEF


                             Rosemary Lehmberg
                             District Attorney
                             Travis County, Texas

                             Matthew Foye
                             Assistant District Attorney
                             State Bar No. 24043661
                             P.O. Box 1748
                             Austin, Texas 78767
                             512-854-9400 (phone)
                             512-854-4810 (fax)
                             Matthew.Foye@traviscountytx.gov
                             AppellateTCDA@traviscountytx.gov




Oral argument is conditionally requested
                                TABLE OF CONTENTS


INDEX OF AUTHORITIES...................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ...................... iv
NOTE CONCERNING ABBREVIATIONS ................................ iv
SUMMARY OF THE STATE’S ARGUMENT ............................. 1
STATE’S ARGUMENT ............................................................. 2
Reply to Point of Error............................................................ 2
   The evidence is sufficient to prove that Appellant used or
   exhibited a deadly weapon during the commission of the offense.
   ................................................................................................ 2
      Standard of Review for Sufficiency......................................... 3
      Evidence Supporting a Deadly Weapon.................................. 4
      Conclusion ........................................................................... 7
PRAYER ................................................................................. 7
CERTIFICATE OF COMPLIANCE AND SERVICE.................... 8




                                                   ii
                           INDEX OF AUTHORITIES

    Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................ 3
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .................... 3
Jackson v. Virginia, 443 U.S. 307 (1979)........................................ 3

    Statutes
Tex. Penal Code §1.07................................................................... 4




                                             iii
           STATEMENT REGARDING ORAL ARGUMENT

     The State believes that oral argument is unnecessary because

the facts and legal arguments are adequately presented in the briefs

filed by the parties. Therefore, the State is not requesting oral

argument. However, if the Court grants Appellant’s request for oral

argument, the State respectfully requests that the State also be

permitted oral argument.


              NOTE CONCERNING ABBREVIATIONS

     In this brief, the State refers to the Clerk's Record as “CR”

followed by the page number (e.g., CR 123). The State refers to the

Reporter's Record as “RR” followed by the volume and then by the

page number (e.g., RR v.4, 567). The State refers to trial exhibits by

their Exhibit label and, if the exhibit is an audio or video recording,

will also notate the timestamp at which the reference begins (e.g.,

State Ex. 1, 00:23:45).




                                    iv
                        No. 03-14-00654-CR

            In the Court of Appeals for the Third District
                            Austin, Texas

                          James Palacio,
                            Appellant

                                  v.

                        The State of Texas,
                             Appellee

           Appeal from the 427th Judicial District Court
                      Travis County, Texas
               Cause Number D-1-DC-14-904021
            Honorable Judge Jim Coronado, Presiding

                          STATE’S BRIEF


To the Honorable Third Court of Appeals:

     Now comes the State of Texas and files this brief in response

to that of Appellant.




             SUMMARY OF THE STATE’S ARGUMENT

Point of Error: Appellant argues that the evidence is insufficient to

prove a deadly weapon was used             or exhibited during the

commission of the offense.




                                       1
     Reply: In the light most favorable to the verdict, the evidence

and reasonable inferences show that Appellant broke almost every

rib in Ms. McKee’s body using his hand, arm, body, or the ground;

that these injuries led to pneumonia and cardiac arrest; and that

Ms. McKee died from these complications. Therefore, the evidence is

legally sufficient to prove that Appellant used or exhibited his hand,

arm, body, or the ground as a deadly weapon in this case.




                       STATE’S ARGUMENT

                   REPLY TO POINT OF ERROR

The evidence is sufficient to prove that Appellant used or
exhibited a deadly weapon during the commission of the
offense.



     The deadly weapon allegation in the indictment in this case

read as follows:

          James Palacio did then and there use or

          exhibit a deadly weapon, to wit: a hand, an

          arm, a body, and the ground, which in the

          manner of its use or intended use was capable




                                    2
           of causing serious bodily injury during the

           commission of said offense…

CR 5.




Standard of Review for Sufficiency

       In reviewing the sufficiency of the evidence to support a

conviction, all of the evidence is viewed 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 (1979);

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).

Courts should “determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.”

Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When

the record supports conflicting inferences, the presumption is that

the factfinder resolved the conflicts in favor of the prosecution and

courts should defer to that determination. Jackson, 443 U.S. at

326.



                                   3
Evidence Supporting a Deadly Weapon

     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.” Tex. Penal Code §1.07(17)(B). Serious bodily injury is

“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 organ. Tex. Penal Code

§1.07(46).

     Appellant told police that he grabbed Nicole McKee and they

fell. Appellant landed on top of Ms. McKee. He felt his elbow go up

into her chest and he felt her ribs move. Appellant said that he

broke something when they hit the ground and that Ms. McKee

gasped and was having trouble breathing. RR v.7, 100-01.

Appellant said “that probably could have killed her.” State Ex. 20B

(00:28:16).

     Appellant eventually called EMS. Paramedic Stephen Schiller

testified that Ms. McKee was “unresponsive and pulseless, not

breathing.” RR v.6, 251. Ms. McKee was in cardiac arrest, and

Schiller gave her four doses of epinephrine. RR v.6, 257. Emergency


                                    4
personnel performed CPR on Ms. McKee for twenty minutes and

were able to resuscitate her. RR v.6, 251. Ms. McKee, however,

never regained consciousness. RR v.6, 265.

     Travis County Sheriff’s Office Detective Jim Anderson testified

that he stayed at the hospital where Ms. McKee was being treated

for several hours and that “they were losing pulse several times and

had to revive her several times.” RR v.7, 28. Ms. McKee did not

survive the night. Id. He also testified that, based on his training

and experience, a hand, an arm, a body, and the ground could, in

the manner if their use, cause death or serious bodily injury. RR

v.7, 60-1.

     Medical Examiner Dr. Satish Chundru testified that there was

bruising all over Ms. McKee’s body. RR v.8, 78-90. Ms. McKee had

seventeen fractured ribs. RR v.8, 92-4. Dr. Chundru stated that the

rib fractures were “pretty severe” and that a person with those

injuries “would have difficulty breathing” and “a lot of pain.” RR v.8,

96. Dr. Chundru testified that cracked ribs can be life threatening

and that someone with cracked ribs who does not receive treatment

can develop pneumonia, an infection of the lungs. RR v.8, 110. He

testified that Ms. McKee had pneumonia. RR v.8, 97. Dr. Chundru


                                    5
further testified that the cause of death was “complications of blunt

force chest injuries.” RR v.8, 104. He testified that hands, arms, a

body, or the ground could each constitute a deadly weapon if used

to cause her injuries. RR v.8, 104-5.

     Dr. Chundru also testified that Ms. McKee’s pneumonia and

injuries could not have resulted from a previous car accident

because “that would be way too old,” and either the pneumonia

would have resolved or she would have passed away back then. RR

v.8, 98-9. Dr. Chundru testified that her injuries did not come from

heroin use either, as the rare times heroin–using patients have

pneumonia it’s “just starting to start up” while Ms. McKee’s

pneumonia was “widespread and everywhere.” RR v.8, 99-100.

Further, there was no heroin in Ms. McKee’s body. RR v.8, 102. Dr.

Chundru’s testimony also disproved the the theory that Ms. McKee

could have suffered broken ribs during CPR which caused the

pneumonia. Dr. Chundru testified that one of the first things the

hospital did upon receiving Ms. McKee was an X-ray which showed

the pneumonia already well developed and a person cannot develop

pneumonia if they are “unresponsive or dead.” RR v.8, 103.




                                    6
Conclusion

     In the light most favorable to the verdict, the evidence and

reasonable inferences drawn therefrom show that Appellant broke

almost every rib in Ms. McKee’s body using his hand, arm, body, or

the ground; that these injuries led to pneumonia and cardiac arrest;

and that Ms. McKee died from these complications. Therefore, the

evidence is legally sufficient to prove that Appellant used or

exhibited his hand, arm, body, or the ground as a deadly weapon in

this case.




                              PRAYER

  The State requests that the Court overrule Appellant’s point of

error and affirm the trial court’s judgment.



                                Respectfully submitted,

                                Rosemary Lehmberg
                                District Attorney
                                Travis County


                                /s/ Matthew Foye
                                Matthew Foye
                                Assistant District Attorney


                                    7
                                 State Bar No. 24043661
                                 P.O. Box 1748
                                 Austin, Texas 78767
                                 512-854-9400 (phone)
                                 512-854-4810 (fax)
                                 Matthew.Foye@traviscountytx.gov
                                 AppellateTCDA@traviscountytx.gov


         CERTIFICATE OF COMPLIANCE AND SERVICE

  I certify that this brief contains 1,051 words, based upon the

computer program used to generate this brief and excluding words

contained in those parts of the brief that Texas Rule of Appellate

Procedure 9.4(i) exempts from inclusion in the word count, and that

this brief is printed in a conventional, 14-point typeface.

  I further certify that, on the 8th day of October, 2015, a true and

correct copy of this brief was served, by U.S. mail, electronic mail,

telephonic document transmission, or electronically through the

electronic filing manager, to Appellant’s attorney, Linda Icenhauer–

Ramirez, 1103 Nueces Street, Austin, Texas, 78701, ljir@aol.com.



                           /s/ Matthew Foye
                           Matthew Foye
                           Assistant District Attorney




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