                                   NO. 12-15-00305-CR

                           IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

NEAL JOHN SHELTON,                                §      APPEAL FROM THE 273RD
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SABINE COUNTY, TEXAS

                                  MEMORANDUM OPINION
          Neal John Shelton appeals his conviction for aggravated assault with a deadly weapon.
In two issues, Appellant challenges the sufficiency of the evidence and an amendment to an
enhancement paragraph. We affirm.


                                          BACKGROUND
          The State charged Appellant with intentionally, knowingly, and recklessly causing
serious bodily injury to Richard Barlow by striking Barlow’s face and head with Appellant’s fist,
kicking Barlow in the ribs and stomach area, stomping Barlow’s head, slamming Barlow’s head
against a gearshift, and hitting Barlow in the head with a sword. The State alleged that Appellant
used or exhibited a deadly weapon during the offense, to-wit: his fists and feet, a gear shift, and a
sword. Appellant pleaded “not guilty” to aggravated assault with a deadly weapon.
          George Ann Ferguson testified that she and some others, including Appellant, had been
camping and that she left the campsite. She later returned with Barlow to retrieve her camping
supplies. On the way to the campsite, they stopped at the sheriff’s department to obtain a police
escort.     According to Ferguson, Barlow previously dated Delores Moreman, Appellant’s
girlfriend. She feared a fight would erupt if the two men encountered each other. Ferguson
testified that she was told the sheriff’s department did not handle such cases, so she and Barlow
continued to the campsite. Deputy Brandon Ward with the Sabine County Sheriff’s Department
testified that he was responding to a call when he saw Ferguson and Barlow at the sheriff’s
department. Because he was the only deputy on duty, he could not conduct a civil standby for
Ferguson.
       Once at the campsite, Ferguson believed that Appellant was not present.            Barlow
remained in Ferguson’s vehicle to call 9-1-1 should Appellant appear. Ferguson went inside a
tent to get a comforter. Appellant was inside the tent with Moreman. She testified that Barlow
peered inside the tent and Appellant “pounced” on Barlow. Ferguson testified that Appellant
began hitting Barlow and stomping on his head and ribs. When Ferguson attempted to call
9-1-1, Appellant smashed her telephone. She saw Appellant use two “swords” and an ax during
the attack. Ferguson testified that Barlow was “gurgling.” Appellant told her that he was going
to kill them and feed them to the alligators. At some point, Appellant gave Ferguson five
minutes to load Barlow into Ferguson’s vehicle. Ferguson testified that she could not lift Barlow
and that Moreman asked Appellant to help. While loading Barlow into the vehicle, Appellant
struck Barlow’s head against the gearshift.         Ferguson testified that the assault lasted
approximately fifteen minutes.
       Deputy David Boyd with the Sabine County Sheriff’s Office testified that he was
dispatched to the hospital and that Barlow was in bad shape and needed assistance with his
breathing. He did not expect Barlow to survive, and the medical staff told Boyd they did not
believe Barlow would survive the helicopter ride to another hospital. He testified that Barlow
did not have any stab wounds on his body, but that the beating he sustained was as bad a beating
as he had ever witnessed. Dr. Natalia Gibson testified that Barlow was unresponsive, had to be
intubated, and had multiple facial fractures, a broken skull, a brain bleed, and abrasions to his
extremities, but no stab wounds. Once stabilized, Barlow was transported by helicopter to a
trauma one hospital. Gibson testified that he had a fifty percent chance of survival. Mareika
Gay, a registered nurse, testified that Barlow never regained consciousness before transport.
Boyd and Gibson both classified Barlow’s condition as serious bodily injury. Ferguson testified
that Barlow now lives in a nursing home and can no longer live alone.
       Sergeant Leon Miller with the Sabine County Sheriff’s Office testified that officers
located Appellant hiding inside the closet of an abandoned trailer. Boyd and Miller testified that
Appellant admitted having been in a fight. Appellant said that he beat someone “pretty bad” and



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he guessed he would be spending the rest of his life in prison. Appellant told Boyd that it
angered him when Barlow spoke to Moreman because he thought Barlow had provided illegal
drugs to Moreman.
        Miller testified that Appellant was in possession of a pocket knife when arrested.
Officers recovered an ax from the scene of the crime, but did not find any swords. Appellant
denied using a sword during the assault. Miller testified that officers at first believed a small
sword or long knife was used during the assault, but he testified that a deadly weapon was not
used. He explained that, because no weapons were found and Appellant denied using any such
weapons, officers determined that a sword was not used during the attack. Deputy Ward testified
that there was blood inside Ferguson’s vehicle, but there appeared to be no blood on the
gearshift. Drag marks at the scene indicated that Appellant dragged Barlow approximately thirty
feet.
        In a written statement, Appellant admitted going “ballistic” when he saw Barlow at the
campsite. Appellant stated that he slapped Barlow, who did not want to fight, placed him in a
chokehold, and dragged him to Ferguson’s vehicle. Appellant thought Barlow was pretending to
be injured. He ripped off Barlow’s shirt and kicked him a few times. When he realized that
Barlow may not be pretending, he picked him up and put him inside Ferguson’s vehicle.
Appellant also gave an audio recorded statement, in which he admitted committing the offense.
He denied using an ax or knife during the assault, but admitted throwing an ax in the lake. He
also denied striking Barlow inside Ferguson’s vehicle.
        The jury found Appellant guilty and made an affirmative finding that he used or exhibited
a deadly weapon, to-wit: his fists, his feet, a gearshift, or a sword. The jury assessed punishment
of imprisonment for ninety-nine years.


                                       LEGAL SUFFICIENCY
        In his first issue, Appellant contends that the evidence is legally insufficient to support
his conviction because there is conflicting evidence as to whether a sword was used during the
offense, no sword was found at the scene of the offense, and Barlow sustained no stab wounds.
Standard of Review and Applicable Law
        When reviewing the sufficiency of the evidence, we determine whether, considering all
the evidence in the light most favorable to the verdict, the jury was rationally justified in finding



                                                 3
guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the accused’s guilt. Id.
       A “deadly weapon” is “anything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West
Supp. 2015). If the jury returns a general verdict and the evidence is sufficient to support a
finding of guilt under any of the allegations submitted to the jury, the verdict will be upheld.
Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992).
Analysis
       The special verdict form asked the jury if it found, beyond a reasonable doubt, that
Appellant used or exhibited a deadly weapon, to-wit, his fists, feet, a gearshift, or a sword. The
jury heard Ferguson testify that a sword was used during the offense. But the jury also heard
testimony that no sword was found at the scene, Appellant denied using a sword to assault
Barlow, officers did not believe a sword was used as a deadly weapon, and Barlow did not suffer
stab wounds. As the sole judge of the weight and credibility of the evidence, the jury was
entitled to resolve any evidentiary conflicts and determine which evidence to believe. See
Hooper, 214 S.W.3d at 13. In doing so, the jury could rely on Ferguson’s testimony that a sword
was used during the offense and that such sword is a deadly weapon. See id.
       Additionally, when the state alleges more than one deadly weapon theory, we will uphold
an affirmative deadly weapon finding if the evidence proves any of the alleged theories.
Gutierrez v. State, No. 05-07-01330-CR, 2009 WL 1335154, at *4 (Tex. App.—Dallas May 14,
2009, pet. ref’d) (not designated for publication).         The jury heard evidence, including
Appellant’s own admissions, that Appellant punched and kicked Barlow. The jury also viewed
photographs depicting Barlow’s injuries. The beating was so severe that Barlow sustained a
brain bleed, facial fractures, and abrasions, had to be intubated, and was not expected to survive.
Dr. Gibson and Deputy Boyd testified that Barlow sustained serious bodily injury. Accordingly,
even if the jury chose to disregard Ferguson’s testimony regarding Appellant’s use of a sword,
the jury could reasonably conclude that his fists and feet were capable of causing serious bodily



                                                    4
injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B); see also Turner v. State, 664 S.W.2d 86,
90 (Tex. Crim. App. 1983) (fist or hand can become a deadly weapon depending on the manner
of use); Powell v. State, 939 S.W.2d 713, 717 (Tex. App.—El Paso 1997, no pet.) (foot can
become deadly weapon when used in a manner capable of causing death or serious bodily
injury). Viewing the evidence in the light most favorable to the verdict, the jury could conclude,
beyond a reasonable doubt, that Appellant committed the offense of aggravated assault with a
deadly weapon. See Brooks, 323 S.W.3d at 899. We overrule Appellant’s first issue.


                                       ENHANCEMENT ALLEGATION
        In his second issue, Appellant contends that the trial court erred by allowing the State to
amend an enhancement paragraph. He challenges the amendment as untimely and a violation of
due process.
Facts
        The indictment contained two enhancement paragraphs, including the following:


        And it is presented that, prior to the commission of the primary offense, and after the conviction in
        cause number 6485 was final, the defendant committed the felony offense of aggravated robbery
        and was finally convicted on the 25th day of January, 2008, in cause number CR-08-7863 in the
        273rd Judicial District Court of San Augustine County, Texas.


        Trial began on September 8, 2015. On September 9, the State filed a motion to amend
this paragraph, to correct a typographical error, as follows:


        And it is presented that, prior to the commission of the primary offense, and after the conviction in
        cause number 6485 was final, the defendant committed the felony offense of aggravated assault
        and was finally convicted on the 25th day of January, 2008, in cause number CR-08-7863 in the
        273rd Judicial District Court of San Augustine County, Texas.


        The amendment changed the offense from “aggravated robbery” to “aggravated assault.”
At trial, after both parties rested, the State moved to amend the enhancement paragraph.
Appellant objected to the lateness of the amendment. The trial court permitted the amendment.
At the punishment phase of trial, Appellant pleaded “not true” to both enhancement allegations.




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Analysis
         To the extent Appellant challenges the amendment as a violation of due process, his
complaint is not preserved because it was not first presented to the trial court. See Clark v. State,
365 S.W.3d 333, 340 (Tex. Crim. App. 2012). Moreover, enhancement paragraphs need not be
alleged with the same particularity as that required when charging the primary offense. Freda v.
State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986). A defendant is entitled to a description of the
prior conviction such that he may find the record and prepare for trial of the question whether he
is the convict named therein. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006).
The description is intended to give the defendant notice that a greater penalty is being sought,
and to enable him to prepare accordingly. Id. The pertinent question is whether the defendant
“received sufficient notice of the enhancements so that he had an opportunity to prepare a
defense to them.” Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010).
         The enhancement paragraph in the original indictment alleged the date of conviction,
cause number, and the convicting county and trial court, as well as the fact that the offense was a
felony. The record does not indicate that Appellant sought a continuance, appeared surprised by
the amended allegation, or argued that he was unprepared to defend against the amended
allegation. See id., 324 S.W.3d at 577. The information in the original indictment was sufficient
to enable Appellant to find the record of the prior offense and prepare for trial. See id; see also
Villescas, 189 S.W.3d at 292; Freda, 704 S.W.2d at 43; Jones v. State, 755 S.W.2d 545, 548
(Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (holding that because original and amended
enhancement          paragraphs        both       identified     date of   conviction, trial court, county,
and cause number, appellant had proper notice of prior felony). Thus, we conclude that the trial
court did not err by permitting the amendment. We overrule Appellant’s second issue.


                                                   DISPOSITION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgment.
                                                                     JAMES T. WORTHEN
                                                                        Chief Justice

Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



                                              (DO NOT PUBLISH)


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 20, 2016


                                         NO. 12-15-00305-CR


                                      NEAL JOHN SHELTON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 273rd District Court
                             of Sabine County, Texas (Tr.Ct.No. 7008)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
