                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                        No. 07-13-00253-CR


                        PATRICK EUGENE COLEMAN, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 320th District Court
                                      Potter County, Texas
                 Trial Court No. 66,450-D, Honorable Don R. Emerson, Presiding

                                          May 27, 2014

                                MEMORANDUM OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Appellant, Patrick Eugene Coleman, appeals the trial court’s judgment of

conviction for aggravated assault with a deadly weapon and the resulting ten-year

sentence of imprisonment.1 On appeal, he challenges the sufficiency of the evidence to

support the jury’s finding that the pistol he used during the commission of the assault—

which was later discovered to most likely be an unloaded CO2-propelled air pistol—was

a deadly weapon. We will affirm.

      1
          See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
                             Factual and Procedural History


       Christy Johnson, an employee at a northwest Amarillo United supermarket,

alerted a store manager, Lisa Garza, that there was man suspected of shoplifting inside

the store. Garza spotted the man to whom Johnson referred, a man later identified as

appellant, as he was nearing a store exit. Garza directed Johnson to enlist the help of

one or more male managers. As Johnson went to do so, Garza followed closely behind

appellant as he walked out of the store exit and directed him at least twice to come back

inside the store. As Garza was preparing to reach for appellant’s left arm, he turned

toward her. Appellant warned her, “Don’t or I’ll shoot you,” and he showed her a gun

that had been concealed under his coat or waistband. Garza explained that appellant

never pointed the gun directly at her, but he displayed the gun and held it with his right

hand somewhat close to his chest such that she could see the “top part of the barrel” of

that gun as he threatened to shoot her with it.


       Carol Shepherd, manager of the supermarket’s floral department, had seen the

interaction shortly before appellant began to leave the store. Noticing that Garza was

following appellant out of the store, Shepherd followed shortly behind the two of them.

She heard Garza try to coax appellant back into the store and also saw appellant turn

around and display the gun. She testified that she was approximately five feet behind

Garza at the time and, from her vantage point, was able to very clearly see the gun

appellant displayed to Garza.


       Immediately after the interaction, Garza was very upset. She described herself

as “froze[n] in [her] tracks” as she watched appellant walk away toward his car. She


                                             2
acknowledged that she had a mobile phone in her hand but was too rattled or shaken to

be able to call 911. She called out to fellow coworkers to call 911, that appellant had

just pointed a gun at her. Garza and other employees tried but were unable to get a

license plate number of the car in which appellant left the scene, but they did get a good

description of the car, which they reported to responding officers: a red, two-door Dodge

Intrepid with clear plastic tape over the passenger door window.


       Responding Amarillo Police Department officer, Corporal Donna Hill, broadcast a

description of appellant’s car, and APD patrol officer, Weldon Cox, located a matching

vehicle a short time later at a convenience store but with a female as its driver and sole

occupant. When Cox approached the female, she explained that her friend, Patrick,

had come to her residence and, when she asked him to take her to get refreshments,

he invited her to just use his car and drive herself there. She did. Cox and other APD

officers who had arrived to assist conducted a search of the vehicle and found what was

later identified as a CO2 pellet gun, or air pistol, in the glove compartment of the car.


       A second air pistol and appellant himself would later be found when officers

arrived at the female friend’s motel room. Appellant was arrested and charged with

aggravated assault using a deadly weapon. A Potter County jury found appellant guilty,

and the same jury assessed punishment at ten years’ incarceration. The trial court

imposed sentence accordingly. Appellant timely appealed and, on appeal, contends

that the evidence was insufficient to show that the object he used or exhibited during the

commission of the assault was a deadly weapon. We will affirm.




                                              3
                                    Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899.


                                      Applicable Law


       A person commits assault if he “intentionally or knowingly threatens another with

imminent bodily injury.” TEX. PENAL CODE ANN. § 22.01(a)(2) (West Supp. 2013). An

assault becomes aggravated if the actor commits assault and uses or exhibits a deadly


                                             4
weapon during commission of the assault. See id. § 22.02(a)(2). Again, appellant

challenges only the deadly weapon finding as it relates to his conviction for aggravated

assault with a deadly weapon. We need, then, to focus our review only on the evidence

relevant to the character of the weapon appellant used when he threatened Garza with

imminent bodily injury.


       The Texas Penal Code defines a “[d]eadly weapon” as (1) “a firearm or anything

manifestly designed, made, or adapted for the purpose of inflicting death or serious

bodily injury” or (2) “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) (West Supp. 2013). “Serious

bodily injury” is defined as “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).   The Texas Court of

Criminal Appeals has summarized the statutory definitions of “deadly weapon” as

meaning that “[a] weapon can be deadly by design or use.” See Tucker v. State, 274

S.W.3d 688, 691 (Tex. Crim. App. 2008); Alonzo v. State, No. 07-12-00244-CR, 2014

Tex. App. LEXIS 3703, at *8 n.3 (Tex. App.—Amarillo Apr. 7, 2014, pet. filed) (mem.

op., not designated for publication).


       The State may prove that a BB or pellet gun is a deadly weapon through several

means, including lay or expert testimony that the weapon is capable of causing serious

bodily injury. See, e.g., Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002)

(affirming deadly-weapon finding when police testified BB gun at issue could cause

serious bodily injury if pointed and fired at someone); Campbell v. State, 577 S.W.2d

493, 495–96 (Tex. Crim. App. [Panel Op.] 1979) (discussing expert ballistic testimony

                                             5
regarding BB gun’s capacity to harm); Williams v. State, 240 S.W.3d 293, 299 (Tex.

App.—Austin 2007, pet. ref’d) (op. on reh’g) (observing that State introduced warning

label for CO2 air gun that identified risk of serious injury or death); Corte v. State, 630

S.W.2d 690, 691–92 (Tex. App.—Houston [1st Dist.] 1981, pet. ref’d) (affirming deadly-

weapon finding when police investigator testified that CO2 pellet gun used in robbery

“was capable of inflicting serious bodily injury”). In some cases, the State has failed to

prove that the BB or pellet gun is a deadly weapon. For instance, in Mosley v. State,

545 S.W.2d 144, 145 (Tex. Crim. App. 1976), although the defendant had pointed a BB

gun at a woman during an assault, the court noted that the gun was not loaded, had not

been pointed directly at the woman’s face, and had not been used to bludgeon the

woman. Further, the State’s expert witness testified that a projectile fired from that BB

gun could not penetrate skin, but probably could cause loss of sight if a person were

shot in the eye. See id. Ultimately, based on the evidence before it, the Mosley court

concluded that the BB gun used in that case was not a deadly weapon in that it was not

designed, made, or adapted for the purpose of inflicting serious bodily injury and was

not calculated to produce death or serious bodily injury. See id. at 146.


      Appellant relies heavily on the position taken in Mosley, pointing to the

evidentiary parallels between that case and the instant case. To more closely examine

his reliance on Mosley in support of his contention that the subject air pistol is not a

deadly weapon, we will look to the evidence in the record before us.




                                            6
                                             Analysis


Evidence Concerning the Displayed Weapon


       Garza testified that there was no doubt in her mind that the object appellant was

holding was a gun, that she was able to see the top part of the barrel as he held it in his

right hand somewhat close to his chest. She explained that he pulled out the gun from

his clothing but agreed that he did not point it directly at her and never pointed it in her

face. Shepherd, who had been following closely behind Garza and appellant, was also

able to see the incident. She explained that appellant “turned around, opened his coat

up, and had what I saw looked like a pistol.” She very clearly saw the pistol from her

vantage point.


Evidence Concerning the Air Pistol


       Treating either of the discovered air pistols as the weapon appellant displayed

when he threatened Garza, we have reviewed the record for evidence concerning the

character and capacity of those weapons.2 Describing the air pistol found in the motel

room, APD Sergeant Anthony Merriman characterized the weapon as a CO2-propelled

BB gun and testified that he believed that the air pistol was “capable of putting

somebody’s eye out.”


       APD Officer Jason Gipson, a patrol officer and firearms instructor with the APD,

described the air pistol found in the glove compartment of appellant’s car as one


       2
          We proceed under the assumption that the object used was one of the two air pistols found
during the investigation rather than another unidentified pellet gun or other handgun. Indeed, the
evidence presented gave the jury no reason to believe the gun appellant used was anything but an air
pistol. See Alonzo, 2014 Tex. App. LEXIS 3703, at *13.

                                                 7
“fashioned to look like a large caliber revolver.” He, too, agreed that an air pistol of such

design was capable of putting someone’s eye out.            In an exchange with defense

counsel on the nature and capacity of the gun, Gipson explained further, elaborating on

the particular design of this gun:


       Q: And unless it were pointed at your head, it – it couldn’t put your eye
       out, could it?

       A. Sir, I don’t know.

       Q. Well, in your opinion, based on your training –

       A. My opinion, if someone pointed this gun at me, I would have to shoot
       back at them.

On redirect examination, Gipson clarified and elaborated:

       Q. If you were looking at that weapon from a few feet away in someone
       else’s hand, you said if someone was pointing it at you, you would have to
       shoot them?

       A. Yes, sir.

       Q. Would that weapon look like a – a real firearm –

       A. Yes, sir. It’s –

       Q. – from a distance of a foot or two?

       A. It’s specifically fashioned to look like a real firearm. Most CO2 guns – if
       you’ll allow me to show this. Most CO2 guns have a – I refer to it as a
       wrench, which is kind of a little screw device which activates that CO2
       cartridge and pushes it forward, and it punctures the top of the CO2
       cartridge. This one has one, but it’s hidden inside the grip right here, and
       it’s specifically hidden to conceal that – I refer to it as a wrench. That may
       not be the proper terminology. But you can see that it doesn’t protrude out
       of the grip as it does on normal CO2 guns. This is fashioned to look just
       like a .357 revolver. And, in fact, somewhere on here, it says .357 on it.
       So it’s as real to the real thing as can be, in my opinion, dangerously so.




                                             8
          Corporal Billy Ray Haden testified about the air pistol found in the motel room, in

large part, echoing Gipson’s testimony about the design and capacity of the other air

pistol:


          Q: And does that appear to be, if you were looking at that weapon from a
          foot or two away, does that appear to be a real semiautomatic firearm?

          A. Yes, sir, it does.

          Q. But, in fact, it is not a real firearm?

          A. It is not.

          Q. It’s a pellet gun?

          A. Yes, it’s like a .177 caliber pellet gun.

          Q. And in your opinion, would that firearm be able to put your eye out if it
          was – it you were hit with a pellet that comes out of that firearm?

          A. Yes, sir.

Discussion


          From this testimony, we see that there is sufficient evidence that an air pistol

designed like either pistol found in this investigation was capable of causing serious

bodily injury. More specifically, based on the APD’s officers’ testimony, a fact-finder

could conclude beyond a reasonable doubt that, if the air pistol were used to shoot a

person, the air pistol was capable of causing serious bodily injury, including the

possibility of “permanent disfigurement” or “protracted loss or impairment of the function

of any bodily member or organ.”             See TEX. PENAL CODE ANN. § 1.07(a)(17), (46).

Viewing the evidence in the light most favorable to the verdict, we hold the State

presented sufficient evidence to support the jury’s finding that the pistol appellant used

when he threatened Garza was a deadly weapon. See Brooks, 323 S.W.3d at 912; see


                                                   9
also Adame, 69 S.W.3d at 582 (holding that State had presented sufficient evidence

that a particular BB gun was capable of causing serious bodily injury).


       In the face of this evidence, appellant emphasizes the point that, when each air

pistol was discovered by police, it was unloaded. In fact, the air pistol found in the glove

compartment of his car did not even have a CO2 cartridge, the absence of which would

render the weapon entirely incapable of causing serious bodily injury.               Again,

appellant’s contention relies heavily on the position taken in Mosley, in which the Texas

Court of Criminal Appeals concluded that an unloaded air pistol was not a deadly

weapon, in part, because defendant never pointed it at the victim’s face. See Mosely,

545 S.W.2d at 145 (noting also that State’s expert witness testified that BB gun’s

projectile could not penetrate skin). Ultimately, however, whether the air pistol was

loaded at the time of a criminal transaction is of no moment in our deadly-weapon

analysis; the crucial question before us is only whether it is “capable of causing serious

bodily injury.” See Adame, 69 S.W.3d at 582; James v. State, No. 01-10-00693-CR,

2012 Tex. App. LEXIS 3019, at *7 (Tex. App.—Houston [1st Dist.] Apr. 19, 2012, pet.

ref’d) (opinion designated for publication). Indeed, the presence 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. McCain v. State, 22 S.W.3d

497, 503 (Tex. Crim. App. 2000) (citing Tisdale v. State, 686 S.W.2d 110, 114–15 (Tex.

Crim. App. 1984) (en banc) (op. on reh’g)). Therefore, the fact that the State did not

provide evidence at trial that the air pistol was loaded does not undermine the jury’s

deadly-weapon finding.     Further, in circumstances such as these, where appellant

threatened to shoot Garza and displayed the weapon, the jury may infer that the air


                                            10
pistol was loaded. See Adame, 69 S.W.3d at 582 (citing Delgado v. State, 986 S.W.2d

306, 308 (Tex. App.—Austin 1999, no pet.)).


       Appellant also points to the evidence suggesting that appellant never pointed the

weapon directly at Garza’s face as evidence that the weapon could not have caused

bodily injury to Garza. Again, however, we must concentrate on the critical inquiry

before us: whether the gun had the capacity to cause serious bodily injury. When there

is no dispute regarding whether an air gun has been used or exhibited during an

offense, the question of whether that offense is enhanced to aggravated status hinges

on the capability of the air gun. See James, 2012 Tex. App. LEXIS 3019, at *7–8.

Appellant’s contentions, here, that the gun was displayed in such a way as to not pose a

direct threat of serious bodily injury to Garza sounds more in terms of a challenge to the

element of whether appellant used or exhibited the gun during the commission of an

assault. See id. at *7. And, “this case is not a ‘used or exhibited’ case since the

evidence clearly shows that appellant used and exhibited the BB gun during the

convenience store robbery. The issue here is whether appellant’s BB gun was ‘capable’

of causing serious bodily injury.”    Adame, 69 S.W.3d at 582.         The evidence that

appellant displayed the air pistol to Garza as he stood a short distance from her and

threatened to shoot her and that the air pistol was capable of causing serious bodily

injury if pointed and fired at someone is sufficient to support the jury’s deadly-weapon

finding. See id.


       Despite appellant’s specific contentions regarding the insufficiency of the

evidence to support the deadly-weapon finding, we return to our conclusion: viewing the

evidence in the light most favorable to the verdict, we hold the State presented sufficient

                                            11
evidence to support the jury’s finding that the pistol appellant used when he threatened

Garza was a deadly weapon. See Brooks, 323 S.W.3d at 912; Adame, 69 S.W.3d at

582. Accordingly, we overrule appellant’s sole point of error.


                                       Conclusion


      Having overruled appellant’s sole point of error, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                         Mackey K. Hancock
                                             Justice


Do not publish.




                                            12
