                                                                           ACCEPTED
                                                                       03-14-00654-CR
                                                                               6140740
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  7/20/2015 3:29:52 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                        NO. 03-14-00654-CR

                   IN THE COURT OF APPEALS             FILED IN
                                                3rd COURT OF APPEALS
                             FOR THE                AUSTIN, TEXAS
         THIRD SUPREME JUDICIAL DISTRICT OF         TEXAS
                                                7/20/2015 3:29:52 PM
                            AT AUSTIN             JEFFREY D. KYLE
                                                        Clerk
__________________________________________________________________

                     NO. D1-DC-14-904021

               IN THE 427TH DISTRICT COURT
                 OF TRAVIS COUNTY, TEXAS
__________________________________________________________________

                         JAMES PALACIO,
                           APPELLANT

                                V.

                        STATE OF TEXAS,
                            APPELLEE
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________
ORAL ARGUMENT REQUESTED

                               LINDA ICENHAUER-RAMIREZ
                               ATTORNEY AT LAW
                               1103 NUECES
                               AUSTIN, TEXAS 78701
                               TELEPHONE:     512-477-7991
                               FACSIMILE 512-477-3580
                               EMAIL: LJIR@AOL.COM
                               SBN: 10382944


                              ATTORNEY FOR APPELLANT
                                    TABLE OF CONTENTS


                                                                                                    PAGE

Parties to Trial Court’s Final Judgment...................................................... 3

Index of Authorities .................................................................................... 4

Statement of the Nature of the Case ........................................................... 5

Statement of the Point of Error................................................................... 7

Statement of Facts....................................................................................... 8

Summary of the Argument ......................................................................... 22

Point of Error Number One ........................................................................ 23

Prayer for Relief ......................................................................................... 32

Certificate of Compliance........................................................................... 32

Certificate of Service .................................................................................. 33




                                                       2
         PARTIES TO TRIAL COURT’S FINAL JUDGMENT

         In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies

that the following is a complete list of the parties and their counsel:

         (a) the State of Texas represented by:

             Ms. Kelly A. Gier, Assistant District Attorney
             Travis County District Attorney’s Office
             P.O. Box 1748
             Austin, Texas 78767

             Mr. Efrain De La Fuente, Assistant District Attorney
             Travis County District Attorney’s Office
             P.O. Box 1748
             Austin, Texas 78767


       (b) Mr. James Palacios represented by:

             Mr. Leonard Martinez – trial attorney
             Attorney at Law
             812 San Antonio, Suite 104
             Austin, Texas 78701

             Mr. Brad Urrutia – trial attorney
             Attorney at Law
             P.O. Box 252
             Manchaca, Texas 78652

             Mr. Richard Estrada – trial attorney
             Attorney at Law
             1501 Newfield Lane
             Austin, Texas 78703

             Ms. Linda Icenhauer-Ramirez - appellate attorney
             Attorney at Law
             1103 Nueces
             Austin, Texas 78701

                                        3
                                  INDEX OF AUTHORITIES

CASES                                                                                                  PAGE

Brooks v. State, 323 S.W.3d 893 (Tex.Cr.App. 2010) ............................... 25

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
      (1979)................................................................................................ 25

Thomas v. State, 875 S.W.2d 774 (Tex.App.-Beaumont 1994, pet.
    ref.).................................................................................................... 24

Villarreal v. State, 716 S.W.2d 651 (Tex.App.-Corpus Christi 1986,
       no pet.) .............................................................................................. 31



STATUTES

V.T.C.A. Penal Code, Sec. 1.07(a)(17) ...................................................... 24

V.T.C.A. Penal Code, Sec. 1.07(a)(17)(B) .......................................... 24, 28

V.T.C.A. Penal Code, Sec. 1.07(a)(46) ...................................................... 24

V.T.C.A. Penal Code, Sec. 22.01(a)(1) ......................................................23

V.T.C.A. Penal Code, Sec. 22.02(a)(2) ..................................................8, 23



COURT RULES

Tex.R.App.Proc. 38.1(a)............................................................................. 3




                                                        4
TO THE HONORABLE JUDGES OF SAID COURT:

         COMES NOW James Palacios, appellant in this cause, by and through

his attorney and files this his brief on original appeal.

               STATEMENT OF THE NATURE OF THE CASE

         Appellant was charged by indictment in this cause on May 15, 2014.

The indictment alleged that appellant committed the offense of aggravated

assault (family violence) with a deadly weapon.                  It also contained one

enhancement allegation alleging that appellant had a prior felony conviction

for burglary of a habitation.            (C.R. 5-6)       Jury selection occurred on

September 22, 2014.          (R.R. VI, pp. 4-231)         On that same day, appellant

entered a plea of not guilty.         (R.R. VI, pp. 238-239)          On September 25,

2014, after hearing the evidence and the argument from counsel, the jury

deliberated and returned a verdict of guilty of the offense of aggravated

assault.      (R.R. IX, pp. 5-6; C.R. 141-147)          On September 26, 2014, after

hearing the evidence and argument from counsel, the jury found the

enhancement allegation to be true and assessed appellant’s punishment at

thirty (30) years imprisonment.             (R.R. X, pp. 148-149 C.R. 151-153)

Appellant was sentenced that day.              (R.R. X, pp. 150-151; C.R. 158-159)

A motion for new trial was filed by trial counsel on September 26, 2014.1


1
    Trial counsel also filed a pleading entitled “Motion for New Trial and Motion in Arrest

                                              5
(C.R. 149)     Notice of appeal was filed by trial counsel on September 26,

2014.2    (C.R. 148)      The trial court’s certification of defendant’s right to

appeal was filed on September 26, 2014.           (C.R. 157)




of Judgment” on October 2, 2014. (C.R. 162-175)
2
  Appellate counsel also filed a notice of appeal on October 6, 2014.   (C.R. 176-177)

                                            6
         STATEMENT OF THE POINT OF ERROR


POINT OF ERROR NUMBER ONE

    THE EVIDENCE IS INSUFFICIENT TO SUPPORT
    APPELLANT’S   CONVICTION   FOR  AGGRAVATED
    ASSAULT BECAUSE THERE WAS NO EVIDENCE THAT
    APPELLANT USED A DEADLY WEAPON.




                        7
                            STATEMENT OF FACTS

          The indictment in this case alleged that appellant committed the

offense of aggravated assault with a deadly weapon          (family violence) and

specifically alleged that appellant:

          “on or about the 30th day of January, 2013, . . . , did then and
          there intentionally, knowingly, or recklessly cause bodily injury
          to Nicole McKee, a member of James Palacio’s family or
          household and with whom James Palacio had a dating
          relationship, by striking Nicole McKee with his hand, and by
          pushing Nicole McKee with his hand, and by grabbing Nicole
          McKee with his hand, and by grabbing Nicole with his arm, and
          by pushing Nicole McKee with his body, and by striking Nicole
          McKee with his body, and by causing Nicole McKee to fall to
          the ground, and 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 of causing death or serious bodily injury, during the
          commission of said offense, ” (C.R. 5-6)

V.T.C.A. Penal Code, Sec. 22.02(a)(2).           The indictment also contained an

enhancement allegation that appellant had a prior felony conviction of

burglary of a habitation.      (C.R. 5-6)

          The evidence showed that emergency personnel were dispatched to a

trailer home in Mustang Ridge, Texas around 1:41 p.m. on January 30, 2013.

They found the complainant Nicole McKee unconscious and in cardiac

arrest.     The first responders performed CPR on the complainant and

initiated other life saving measures.           When they detected a pulse, they

                                            8
stabilized her and transported her to a hospital in Austin.          The first

responders noticed that the complainant had numerous black and blue

bruises all over her entire body.   (R.R. VI, pp. 248-267)

      Appellant was trying to administer CPR to the complainant when the

first responders arrived.    After the complainant was taken to the hospital,

appellant was asked by law enforcement if he would be willing to give a

voluntary statement to detectives with the Travis County Sheriff’s office.

Appellant agreed and was given a courtesy ride to the sheriff’s office by a

Mustang Ridge police officer.        (R.R. II, pp. 7-12)      When appellant

arrived at the sheriff’s office, he was told by Detective Jim Anderson that he

was not under arrest and that he was free to leave at any time.      Appellant

agreed to talk to the detective and gave a lengthy interview to Detective

Anderson and Detective Alan Howard, which was recorded and introduced

into evidence at the trial as State’s Exhibits 5 and 6.      (R.R. VII, 30-34)

Appellant told the detectives that he had been in a relationship with the

complainant for several years and that they had a daughter together.        He

told the detectives that the complainant was a heroin addict and that she had

come to his home three days earlier (Monday).      Initially, appellant told the

detectives that the complainant had had bruises on her when she arrived at

the house on Monday.        Appellant also told the detectives that he never


                                       9
assaulted the complainant but that he had restrained her by grabbing her

wrists and shoulders when she tried to leave in order to go get more heroin.

When the detectives asked appellant about how the complainant received

some of the bruises, he told them that the bruises on the front of her legs

occurred when she fell outside on the gravel in the driveway.      He said she

got a bruise on her forehead when she passed out and fell.         He said that

the bruises on her chest occurred when he tried to restrain her.     Appellant

told the detectives that he was unable to keep her from leaving the house and

that she in fact left the house.     As the interview progressed, appellant

began changing portions of his story.      He admitted to the detectives that

when the complainant had arrived at his home on Monday, she did not have

any bruises.     He admitted that at one point when the complainant was

kicking and screaming and he was trying to restrain her, she fell down and

he fell on top of her.    Appellant told the detectives that he was 6’4” and

weighed approximately 198 lbs.      He repeatedly told the detectives that he

never hit the complainant but he admitted that he might have held her too

tight.   He did say that at one point they were fighting over a knife and the

complainant cut herself on her fingers.     When the detectives asked about

the multiple bruises on the back of the complainant’s legs, he told them

when he was trying to get her into the shower, she fell and landed on the


                                      10
metal shower door railings.     He also changed his story and admitted that

the complainant had stayed at the house all day Monday and Tuesday.

Appellant told the detectives that in order to get the complainant off of

heroin, he got morphine, narcan and promethazine pills from his

grandmother and over the course of the three days, gave her a lot of pills.

Appellant told the detectives that he had given the complainant ten narcan

pills, ten morphine pills and ten promethazine pills on Monday, ten

morphine pills and ten promethazine pills on Tuesday and ten more

morphine pills and ten more promethazine pills on Wednesday.           He also

admitted to the detectives that he bought twelve grams of crystal

methamphetamine and had allowed the complainant to eat it over the course

of two days.     He told the detectives that he had flushed the remaining

methamphetamine down the toilet before authorities arrived because he did

not want to get arrested for drug possession.      According to appellant, the

complainant was in a lot of pain and she told him that she would overdose

on heroin if he did not give her the other drugs.          Appellant told the

detectives that by the third day, the complainant was hallucinating.        He

insisted that he was just trying to help her get off heroin.   (State’s Exhibits

5 and 6)       (R.R. VII, pp. 39-40, 87-92)       After the interview at the

sheriff’s office concluded, the detectives asked appellant if they could go to


                                       11
his home and see where the complainant had been injured and speak to his

mother.      Appellant agreed.       Everyone drove out to the trailer where

appellant lived with his mother.         While Detective Anderson spoke with

appellant’s mother, Detective Howard had another conversation with

appellant that he also recorded.        (R.R. VII, pp. 45-46, 92-96)          During

this conversation, appellant showed the detectives the different areas of the

house and yard where the complainant had been injured.            This included the

bathroom and outside the back door of the trailer.              Appellant told the

detective that at one point he and the complainant fell out of the back door

way of the trailer.    He said that he fell on top of the complainant and they

ended up on the ground.        He told the detectives that he felt that he broke

something on the complainant when they hit the ground.                When he fell

down his elbow went up into her chest and he thought he felt her ribs move.

He said that the complainant gasped and then began having trouble

breathing.    (State’s Exhibits 20B3)      (R.R. VII, pp. 96-104; R.R. VIII, p.

5-7)

       Detective Anderson testified that a hand in the manner of its use could

be capable of causing death or serious bodily injury.           He also testified to

3
  The audio recording of Detective Howard’s conversation with appellant at the trailer
was originally introduced as State’s Exhibits 20 and 20A. (R.R. VII, pp. 95-96) The
State later consolidated State’s Exhibits 20 and 20A into State’s Exhibit 20B and
substituted State’s Exhibit 20B for State’s Exhibits 20 and 20A. (R.R. VIII, pp. 5-7)

                                         12
the same thing with respect to an arm, a person’s body and the ground.

(R.R. VII, pp. 60-61)

      The State also brought in several witnesses who knew appellant and

the complainant.    Hector Rocha testified that he was an assistant manager

at the Sonic Drive-In on William Cannon in Austin.           He testified that the

complainant worked there as a car-hop.            On her last day of work on

Sunday, January 27, 2013, the complainant came to work but seemed

distracted.   When she continued to be on her phone, he sent her home

three hours into her shift.   She never came back after that day.          Rocha

testified that the complainant did not look ill that day and seemed physically

capable of performing her job duties.        (R.R. VIII, pp. 9-19)

      Dr. Satish Chundru from the Travis County Medical Examiner’s

Office testified that he performed an autopsy on the complainant on January

13, 2013.     He testified that she was 5’3” tall and weighed 143 pounds.

He told the jury that his external examination revealed that the complainant

had quite a few bruises that seemed to be a day or two old.            He found

bruises on her midchest area that looked to be within a day or two old.       He

testified that they did not appear to have resulted from CPR being performed

but it depended on how the CPR was done. (State’s Exhibits 35, 45 and 46)

(R.R. VIII, pp. 72-79, 82-83)      He found bruising on the complainant’s


                                        13
right eyelid, which had resulted from marks higher up on her forehead.       He

also noted a light yellow bruise above her right eyelid and a yellowish bruise

on her forehead.      He noted a faint red bruising on the left side of her face

and he estimated that this was less than a few days old.       (State’s Exhibits

37, 38, 40, 41)     (R.R. VIII, pp. 80-82)    The doctor also pointed out a lot

of bruising on the complainant’s arms and wrists, a bruise near her pubic

area, a lot of bruising on the complainant’s left side, an abrasion and

bruising on her posterior right shoulder, bruising on her hands, some cuts on

her right hand, a fractured finger on her left hand, bruising on her knees and

shins and bruising on the back of her thighs and calves.       (State’s Exhibits

43, 44, 49, 50, 51, 53, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68,

69, 70, 71) (R.R. VIII, p. 82-90)        An internal exam revealed that the

complainant had suffered multiple fractures of her ribs on both sides of her

body.   The doctor testified that the rib fractures on the left side of the

complainant’s body corresponded with the bruises found on the exterior part

of her body.      He also testified that although CPR could have caused some

of the rib fractures, it did not cause all of them.   He described the fractures

as pretty severe and told the jury that after her ribs had been fractured, the

complainant would have had trouble breathing and would have been in a lot

of pain.    He also testified that cracked ribs could be life-threatening.


                                       14
(State’s Exhibits 74, 75, 76)     (R.R. VIII, pp. 91-96, 110)     Dr. Chundru

told the jury that his exam showed that the complainant was suffering from

acute pneumonia.    He told the jury that pneumonia is typically caused by

broken ribs, chronic obstructive pulmonary disease (COPD), cancer or some

types of drugs (not heroin).      He also testified that a toxicology report

showed the presence of morphine, methamphetamine and promethazine but

no indication of heroin.        (R.R. VIII, pp. 97-102)      He testified on

cross-examination that none of the drugs found in the complainant’s system

contributed to her death.    (R.R. VIII, p. 106)     He concluded his direct

examination by testifying that the cause of the complainant’s death was

complications of blunt force chest injuries.       He testified that a deadly

weapon is anything that in the manner of its use is capable of causing death

or serious bodily injury.   He further testified that if a person’s hands were

used to get the decedent to the ground and caused the rib fractures, the hands

could be considered a deadly weapon.       Likewise if the arms were used or

a body was used, a person’s arms or body could be a deadly weapon.

Finally he testified that the ground could be a deadly weapon if a decedent

impacted with the ground and was injured by that impact.        (R.R. VIII, pp.

104-105)

      The jury heard argument from both sides, deliberated and then


                                      15
announced its verdict.      The jury found appellant guilty of the offense of

aggravated assault.4    (R.R. IX, pp. 5-7; C.R. 141-147)

       Appellant elected to go to the jury for punishment.                 Appellant

entered a plea of true to the enhancement allegation.          (R.R. IX, pp. 11-12)

The State brought forward three witnesses who actually lived with appellant

and the complainant in a trailer in Oak Hill for a time.             Patrick Thole,

testified that he and his wife rented a room in the trailer five years earlier

and appellant and the complainant also rented out a room in the trailer.

Thole also was a coworker of both appellant and the complainant at Sonic.

Thole testified that he witnessed appellant physically abusing the

complainant both at work and at home.             He described seeing appellant

backhand the complainant, lock the complainant in their room, shove her to

the ground and drag her around by her hair.         He told the jury that appellant

was constantly verbally abusive to the complainant.             Thole testified that

he wanted to intervene but the complainant continuously begged him not to.

He also told the jury that he saw appellant steal money from the

complainant’s purse and he said he saw appellant use crack almost daily.

(R.R. IX, pp. 13-24)       On cross-examination, Thole admitted that he had


4
  Before the charge was submitted to the jury, the State abandoned the language in the
indictment regarding a family or dating relationship between appellant and the
complainant. (R.R. VIII, p. 163)

                                         16
pulled a gun on appellant twice, once when appellant broke into his room

and another time when appellant had head-butted him.                Thole also

admitted that he had pulled a knife on appellant one time.     This occurred

when appellant was coming after him.          Thole also told the jury that

despite witnessing all this violence by appellant, he never called the police

because the complainant asked him not to.    (R.R. IX, pp. 24-30)

        Thole’s wife Michelle also testified about the physical abuse she

witnessed by appellant against the complainant.    She described witnessing

the same kind of abuse as her husband had testified about.       She told the

jury that she had seen the complainant with a black eye and bruises on her

back and upper arms.      She also testified that appellant had assaulted her

when she tried to intervene in an argument between appellant and her

husband.    She told the jury that appellant grabbed both of her wrists,

pushed her all the way down in the hallway and then pushed her to the floor

inside her room.    Then appellant closed and locked the door.        Michelle

told the jury that she had to crawl out of a window in order to get out of her

room.      She also admitted on cross-examination that she never reported

appellant’s conduct to police because the complainant did not want her to.

(R.R. IX, pp. 30-52)

        Dean Johnson, a longtime friend of the complainant’s, also lived in


                                      17
the trailer in Oak Hill.    He also witnessed the physical and verbal abuse of

the complainant by appellant.          Johnson testified that on one occasion,

when he tried to intervene, appellant headbutted him and knocked him to the

floor.    He told the jury that he ended up with two black eyes.       He told the

jury that he saw the complainant with bruises on her arms, her face and her

neck.      (R.R. IX, pp. 63-80)      Johnson testified that on one occasion, he

did call the police on appellant.      When appellant got out of jail a few days

later, appellant came to Johnson’s door and kicked the door in and

threatened to kill Johnson if he ever called the police on appellant again.

(R.R. IX, p. 86)

         Gabriel Loera, a coworker of both appellant and the complainant at

Sonic, also told the jury that he witnessed appellant being both verbally and

physically abusive to the complainant.        (R.R. IX, pp. 55-60)

         The State also introduced evidence that appellant was in possession of

a .22 caliber semi-automatic rifle that had been sawed off at the handle.

(State’s Exhibit 81)       This was in spite of the fact that as a felon, appellant

was prohibited from being in possession of firearms.          Det. Jim Anderson

testified that appellant told him that he had fired it once in his backyard

when he was arguing with the complainant.            (R.R. IX, pp. 88-92)     Det.

Anderson also testified that when he arrested appellant for the aggravated


                                         18
assault of the complainant on February 22, 2013, appellant had

methamphetamine in his pocket.      (R.R. IX, p. 96)

      The State also introduced evidence that appellant had been

investigated in 2006 for hitting another woman, Maria Ortiz, who at the time

was holding their child –                   Child Protective Services ended up

removing the child and placing him in the custody of appellant’s mother.

From that point on appellant was not allowed to have unsupervised contact

with his son.    The evidence also showed that authorities were concerned

about the couple’s drug use – xanax.         (R.R. X, pp. 7-12)

      The State also introduced evidence of appellant’s extensive juvenile

record.   The evidence showed that appellant was adjudicated for assault

with injury and was placed on intensive supervision probation.           That

probation was later modified and appellant was committed to the custody of

the Texas Youth Commission on the basis of adjudications for assault and

burglary of a habitation.    (R.R. X, pp. 13-15, 23-24)      On cross, it was

shown that appellant was thirteen when he was adjudicated.         It was also

shown that as a child appellant was placed in the state hospital for emotional

and mental health issues.       He was diagnosed with conduct disorder.

(R.R. X, pp. 24-29)

      The mother of another of appellant’s children, Christina Mendez,


                                       19
testified that she met appellant as a pen pal in 2007 when he was in jail.

When appellant got out of jail, they continued their relationship.    Mendez

testified that together they had a daughter                  who was six years

old at the time of appellant’s trial.     Mendez testified that she lived with

appellant’s grandmother but that appellant was only there for a few hours

everyday.    She told the jury that appellant would push her around and grab

her but he never hit her.    Mendez testified that she was in a relationship

with appellant for three years.     (R.R. X, pp. 39-45)       The State rested

after Mendez’s testimony.      (R.R. X, p. 93)

      During the defense case, several of appellant’s aunts testified and told

the jury about appellant’s upbringing.        Isabel Barron told the jury that

appellant’s mother,                     was fourteen years old when she had

appellant.   Appellant’s father was an older man who had no involvement in

appellant’s life.   Barron described appellant as being hyper and suffering

from ADD or ADHD as a child.         (R.R. X, pp. 97-100)     Lira Mickelson,

another of appellant’s aunts testified that their family was very poor and that

there was a lot of physical, verbal and sexual abuse in the home.          She

testified that her mother would sell appellant’s mother,         , to men on a

regular basis beginning when            was fourteen until       left the house

at around eighteen years of age.    Mickelson testified that appellant did not


                                        20
function normally as a child – either physically or mentally.    When he was

around seven or eight years old, appellant was committed to the Austin State

Hospital and stayed there for approximately one year.       After that he was

in and out of various institutions.    (R.R. X, pp. 103-110)     Another aunt,

Suzie Grossman, also testified about the sexual abuse, emotional abuse,

mental and physical abuse that went on in their mother’s home.         She too

told the jury that appellant’s grandmother sold appellant’s mother for sex

and that appellant’s mother got pregnant with appellant when she was

fourteen.    And she also testified that appellant was put in the Austin State

Hospital at a very young age.      (R.R. X, pp. 116-120)        After the aunts

testified, the defense rested and both sides closed.   (R.R. X, p. 122)

             After hearing the argument of counsel from both sides, the jury

found the enhancement allegation to be true and assessed appellant’s

punishment at thirty (30) years imprisonment.      (R.R. X, pp. 148-149; C.R.

151-153)




                                       21
                     SUMMARY OF THE ARGUMENT

      In his sole point of error, appellant argues that the evidence is

insufficient to show that appellant used or exhibited a deadly weapon during

the commission of this offense.         The indictment alleged that appellant

caused bodily injury to the complainant and used or exhibited “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 of causing death or serious bodily

injury.”     (C.R. 5-6)   The State failed to produce affirmative evidence that

appellant’s hand, arm or body or the ground was used as a deadly weapon in

this case.     Dr. Chundru, the medical examiner, testified that the cause of

death was “complications of blunt force chest injuries” but never specified

what those complications were or that a deadly weapon played a part in

either the complications or the complainant’s injuries.     Dr. Chundru never

testified that any of the complainant’s injuries constituted serious bodily

injury.      When asked if hands, arms, body could be a deadly weapon, he

answered that they could be if any of those things were used to get the

decedent to the ground and caused rib fractures.      He also testified that the

ground could be a deadly weapon if the injuries were caused by the ground

and there was an impact in getting the decent to lay on the ground.      All of

his answers were conditional and not based on the evidence in the case.


                                        22
               POINT OF ERROR NUMBER ONE
THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR AGGRAVATED ASSAULT BECAUSE THERE
WAS NO EVIDENCE THAT APPELLANT USED A DEADLY
WEAPON.

         Appellant incorporates the Statement of Facts set out earlier in this

brief.     Appellant was alleged to have committed the offense of aggravated

assault by intentionally, knowingly, or recklessly causing bodily injury to

the complainant and using or exhibiting a deadly weapon during the assault.

V.T.C.A. Penal Code, Sec. 22.01(a)(1); V.T.C.A. Penal Code, Sec.

22.02(a)(2).

         The indictment alleged that appellant:

         “on or about the 30th day of January, 2013, . . . , did then and
         there intentionally, knowingly, or recklessly cause bodily injury
         to Nicole McKee, a member of James Palacio’s family or
         household and with whom James Palacio had a dating
         relationship, by striking Nicole McKee with his hand, and by
         pushing Nicole McKee with his hand, and by grabbing Nicole
         McKee with his hand, and by grabbing Nicole with his arm, and
         by pushing Nicole McKee with his body, and by striking Nicole
         McKee with his body, and by causing Nicole McKee to fall to
         the ground, and 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 of causing death or serious bodily injury, during the
         commission of said offense, ” (C.R. 5-6)

         It was encumbant upon the State to prove beyond a reasonable doubt

that either appellant’s hand, his arm, his body and/or the ground was a

                                        23
deadly weapon.      Appellant asserts that the State failed to present sufficient

evidence that appellant’s hand, his arm, his body, or the ground was, in the

manner of its use or intended use, capable of causing serious bodily injury or

death.

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

use is capable of causing death or serious bodily injury.       V.T.C.A. Penal

Code, Sec. 1.07(a)(17)(B).       A person’s hand, or arm or his body is not

manifestly designed to inflict serious bodily injury or death. Nor is the

ground.     See V.T.C.A. Penal Code, Sec. 1.07(a)(17).      The State therefore

was required to prove that appellant’s hand, his arm, his body, or the ground

in the manner of its use or intended use, was capable of causing death or

serious bodily injury.        See Thomas v. State, 875 S.W.2d 774, 778

(Tex.App.-Beaumont 1994, pet. ref.)          "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 member or organ."      V.T.C.A. Penal Code, Sec. 1.07(a)(46).

         In determining whether the evidence is legally sufficient to support a

deadly weapon finding, the appellate court must review all the evidence in

the light most favorable to the jury's verdict to determine whether any

rational jury could have found the essential elements of aggravated assault


                                        24
with a deadly weapon beyond a reasonable doubt.          Brooks v. State, 323

S.W.3d 893, 899 (Tex.Cr.App. 2010)(citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      The evidence showed that when first responders arrived at appellant’s

residence, they found the complainant unconscious and in cardiac arrest.

Steven Schiller, a City of Austin paramedic, testified that upon examining

the complainant, he noticed that she had numerous deep, black-and-blue

bruises all over her body.   (R.R. VI, pp. 248-267)     After the complainant

was transported to the hospital, appellant agreed to talk with Travis County

Sheriff detectives Jim Anderson and Alan Howard at the Travis County

Sheriff’s Office.     (R.R. VII, pp. 29-34)        Initially appellant told the

detectives that the complainant, who was his girlfriend and the mother of

one of his children, had arrived at his home three days earlier and she was

already bruised.    However, later in the interview he admitted that she had

no bruises on her when she arrived at his house.     He admitted grabbing the

complainant by her wrists and shoulders in an effort to restrain her to keep

her from leaving and getting more heroin (she was a heroin addict.)

Appellant told the detectives that the bruises on her forehead were caused

when she passed out and fell.   Appellant told the detectives that the bruises

on her chest occurred when he tried to restrain her.         He also told the


                                     25
detectives that at one point while they were struggling, he “bear-hugged” her

and they both fell down to the ground and he fell on top of her.   He told the

detectives that he might have held her too tight but he insisted that he never

struck her.   (State’s Exhibit 5) (R.R. VII, pp. 34-40, 81-82, 87-92)    After

the interview at the sheriff’s office was concluded, the detectives

accompanied appellant to his home and he showed them where the events of

the previous three days had occurred.      As appellant showed them the area

by the back door of the trailer house, he recounted how he had been

struggling with the complainant when they both fell from the doorway of the

trailer to the ground and he landed on top of her.   Appellant told Detective

Howard that when he fell on top of the complainant, his elbow went up into

her chest and appellant said it felt like her ribs moved.   Appellant said that

it was after this fall that the complainant gasped and began having trouble

breathing.    (State’s Exhibit 20B)    (R.R. VII, pp. 92-101; R.R. VIII, pp.

5-7)

       At trial, Det. Anderson was asked about deadly weapons.               In

response to questioning by the State, he testified that based on his training

and experience, a hand or an arm, or a body and even the ground, can, in the

manner of their use be capable of causing death or serious bodily injury.

(R.R. VII, pp. 60-61)    On cross-examination, Det. Anderson admitted that


                                      26
he did not know what caused the bruising on the complainant’s arm – arm,

hand or ground.     He also did not know what caused the injuries to the

complainant’s head, nor did he know what caused the injuries to the

complainant’s legs.    In fact, he admitted that he did not know how any of

the complainant’s injuries were caused.      (R.R. VII, pp. 71-72)

        The evidence showed that the complainant passed away shortly after

being taken to the hospital.       Dr. Chundru, the medical examiner who

performed the autopsy on the complainant, testified that the complainant had

recent bruising all over her body.       An internal exam revealed that the

complainant had rib fractures on both sides of her body.      Specifically, there

were rib fractures on the left side on rib # 2, 3, 4, 5, 6, 7, 8, 9 and 10 and rib

#7 had multiple fractures.    The doctor testified that the rib fractures on the

victim’s left side corresponded with the bruising he found on the exterior of

the complainant’s body.      On the right side, Dr. Chundru found rib fractures

on rib # 2, 3 4, 5, 6, 7, 8, and 9.    Dr. Chundru testified that some of the

anterior rib fractures could have been caused by CPR but CPR would not

have caused the posterior rib fractures.          Dr. Chundru described the

complainant’s rib fractures as “pretty severe.”       And he testified that as a

result of the rib fractures, the complainant probably had difficulty breathing

and was in a lot of pain.    (R.R. VIII, pp. 72-96)   Dr. Chundru testified that


                                        27
his exam showed that the complainant was suffering from pneumonia.       He

testified that possible causes of pneumonia are broken ribs, chronic

obstructive pulmonary disease (COPD), cancer, and some drugs like xanex

and morphine (but not heroin.)    He also testified that a toxicology report

showed the presence of morphine, methamphetamine and promethazine in

the complainant’s blood.    Dr. Chundru testified that he found the cause of

the complainant’s death to be complications of blunt force chest injuries.

(R.R. VIII, pp. 97-104)      When asked about the definition of a deadly

weapon, Dr. Chundru testified that anything in the manner of its use that is

capable of causing death or serious bodily injury is a deadly weapon.    He

went onto testify that if hands were used to get the decedent to the ground

and caused rib fractures, the hands would be a deadly weapon.       He also

testified that the same could be true of arms or a body.   He also testified

that the ground could be a deadly weapon if the injuries were caused by the

ground and there was an impact in getting the decedent to lay on the ground.

(R.R. VIII, pp. 104-105)    The State produced no other evidence on the

issue of a deadly weapon.

      As noted above a deadly weapon is anything that in the manner of its

use or intended use is capable of causing death or serious bodily injury.

V.T.C.A. Penal Code, Sec. 1.07(a)(17)(B).    Applying that definition to the


                                     28
facts adduced by the State during appellant’s trial, it is clear that the State’s

evidence is lacking.

      There was no evidence that appellant’s hand, his arm, his body, or the

ground caused the complainant’s death.             Dr. Chundru, the medical

examiner testified that the cause of the complainant’s death was not the

blunt force injuries themselves.    Rather the doctor testified:

             “A. So the cause of death was complications of blunt
      force chest injuries.” (R.R. VIII, pp. 104) (emphasis added)

After the doctor answered that question, the State never asked the doctor

what the complications were and if those complications were caused by

appellant’s hand, his arm, his body or the ground.       Earlier the doctor had

noted that the complainant was suffering from acute pneumonia at the time

of her death but he never affirmatively testified that the pneumonia was the

complication he was referring to, nor did he affirmatively testify that the

complainant’s pneumonia was a result of the rib fractures.           In fact, in

response to the State’s questioning, he testified that there could be many

things that cause pneumonia including drugs like morphine which was found

in the complainant’s body and which appellant told the detectives he had

given to her.

            “Q. Are there other causes of pneumonia other than
      broken ribs?


                                       29
            “A.    Yes.

            “Q.   What are the other causes of that?

            “A. Well, some of the natural causes, anyone that
      smokes a lot or has what we call COPD, chronic obstructive
      pulmonary disease, they’re predisposed to pneumonia.
      People with cancer, that can obstruct some of the lung, which
      can cause pneumonia.          Sometimes drugs can cause
      pneumonia.

            “Q.    What kind of drugs would cause pneumonia?

             “A.   Typically what we’re talking about is respiratory
      depressant drugs like Xanax, opioids like Morphine things like
      that.”   (R.R. VIII, p. 99)

Dr. Chundru went on to testify that a toxicology report done on the

complainant showed that at the time of her death she had morphine,

methamphetamine and promethazine in her body.      (R.R. VIII, p. 102)

      Likewise there was no evidence that any of the injuries suffered by the

complainant (including the rib fractures) would be considered “serious

bodily injury.”   The State never asked the doctor if the complainant’s

injuries could be considered “serious bodily injury.”       The closest the

doctor came to labeling the degree of the complainant’s injuries was when

he was asked the following:

            “Q.    And in looking at the pictures and having
      performed the autopsy on Ms. McKee, on a scale of one to 10
      how would you rate the severity of her injuries?

            “A.   She has quite a few rib fractures and so those are

                                     30
      pretty severe.”   (R.R. VIII, p. 96) (emphasis added)

Dr. Chundru never classified any of the injuries suffered by the complainant

as “serious bodily injury.”        And the State adduced no other evidence to

show that any of the injuries suffered by the complainant would be

considered to be serious bodily injury.        Accord Villarreal v. State, 716

S.W.2d 651 (Tex.App.-Corpus Christi 1986, no pet.)(where evidence

insufficient to show that rib fractures constituted either a substantial risk of

death or serious bodily injury.)

             Here, the State failed to adduce evidence that appellant’s hand,

his arm, his body, or the ground was, in the manner of its actual use or

intended use, capable of causing serious bodily injury or death.     This point

of error should be sustained.




                                         31
      .


                                      PRAYER

      Appellant respectfully requests that this Honorable Court sustain his

point of error and reverse the trial court and enter an order of acquittal.

                                        Respectfully submitted,

                                        /s/ Linda Icenhauer-Ramirez
                                        LINDA ICENHAUER-RAMIREZ
                                        Attorney at Law
                                        1103 Nueces
                                        Austin, Texas 78701
                                        (512) 477-7991
                                        FAX: (512) 477-3580
                                        SBN: 10382944
                                        Email: ljir@aol.com

                                        ATTORNEY FOR APPELLANT




                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief was computer generated and contains

6,438 words, as calculated by the word count function on my computer.

                                        /s/ Linda Icenhauer-Ramirez
                                        LINDA ICENHAUER-RAMIREZ




                                       32
                      CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of Appellant’s Brief on

Original Appeal was served by e-service to the Travis County District

Attorney’s Office on this the 20th day of July, 2015.

                                       /s/ Linda Icenhauer-Ramirez
                                       LINDA ICENHAUER-RAMIREZ




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