             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00037-CR
     ___________________________

         JESSE SMITH, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 431st District Court
          Denton County, Texas
      Trial Court No. F17-1280-431


  Before Birdwell, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

       In two issues, Jesse Smith appeals his conviction for aggravated assault against

his wife. First, he challenges the sufficiency of the evidence. We hold that the

evidence—including Wife’s account of how Smith beat her with a baseball bat and the

investigating officer’s testimony and photographs documenting Wife’s injuries—is

sufficient to sustain the conviction.

       Second, Smith contends that his motion to recuse the trial judge should have

been granted. Smith’s case for recusal rests entirely on the trial judge’s harsh comments.

We hold that these remarks do not rise to a level that requires recusal. We therefore

affirm.

                                  I.    BACKGROUND

       On October 14, 2016, police were dispatched to address a report of family

violence at Smith’s apartment. Wife told police that Smith had hit her in the legs, arms,

and stomach with a baseball bat. Smith was not at the scene, so police collected

evidence and left.

       On November 5, 2016, police arrested Smith, and he was later indicted for

aggravated assault with a deadly weapon.1 The jury found Smith guilty as charged, and

Smith elected to have punishment tried to the bench. Smith pleaded true to an



       Smith was also charged with and convicted of violation of a protective order
       1

and another offense of aggravated assault with a deadly weapon for events that unfolded
on November 19, 2016, but those convictions are at issue in separate appeals.

                                            2
enhancement paragraph for a prior felony conviction.             The trial judge assessed

punishment at sixty years for the offense in question. Smith appeals.

                        II.    SUFFICIENCY OF THE EVIDENCE

       In his first issue, Smith disputes the sufficiency of the evidence. He contends

the evidence is insufficient to show (1) that he was the person who assaulted Wife and

(2) that the instrument used—a bat—was a deadly weapon.

       In our evidentiary sufficiency review, we view all the evidence in the light most

favorable to the verdict to determine whether any rational factfinder could have found

the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.

App. 2017). This standard gives full play to the factfinder’s responsibility to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman,

520 S.W.3d at 622.

       The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the

evidence’s weight and credibility and substitute our judgment for the factfinder’s.

Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences

are reasonable based on the evidence’s cumulative force when viewed in the light most

favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015);

see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a

                                             3
sufficiency review must not engage in a ‘divide and conquer’ strategy but must consider

the cumulative force of all the evidence.”). We must presume that the factfinder

resolved any conflicting inferences in favor of the verdict, and we must defer to that

resolution. Murray, 457 S.W.3d at 448–49.

       A person commits the offense of assault if the person intentionally, knowingly,

or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1).

Aggravated assault occurs if the person commits an assault under Section 22.01 and the

person uses or exhibits a deadly weapon during the commission of the assault. Id.

§ 22.02(a)(2).

       The evidence at trial disclosed that the trouble began on October 13, 2016, when

Wife and Smith got into an argument, and Smith left their apartment. Wife explained

that Smith apologized when he returned the next day, but the argument soon resumed,

and Smith began yelling and calling her names. Wife testified that Smith then went into

the living room, and she heard her dog yelp “like she was hurt.” According to Wife,

Smith denied doing anything to the dog, but she saw blood on his hands. Wife

explained that when she accused him of harming the dog, Smith flew into a rage and

struck her repeatedly, first with his fists and then with a baseball bat:

       A. He got really mad and he came in the room and hit me in the head
       with the side of his fist a couple of times. And then he threw me down
       and kicked me, and picked me back up and hit me some more in the head.
       And then he made me sit on the bed. And I had to take my clothes off
       so I wouldn’t run outside. And he was hitting me some more. And then
       he asked me—he got a baseball bat. And I was covering my face, because


                                             4
      I was sitting on the bed, and he hit my hands with the bat and told me to
      stop doing that. And then he hit me on the side of the leg.
      Q. Was that with the bat?
      A. Yes. And kind of just taunting me, telling me he was going to knock
      out my teeth and hit me in the face and mess up my face. And he poked
      me like in the stomach and the legs with it, standing right there over me.
Wife testified that at some point, she reached for her tablet in an attempt to call for

help, but Smith smashed it with the bat as well. Wife said that when he wasn’t hitting

her, Smith was threatening her, telling her that if she moved or tried to leave, he was

going to knock her teeth out with the bat. Wife estimated that the whole “ordeal” lasted

“[m]aybe an hour.” In Wife’s telling, Smith eventually calmed down, and after they

talked for a while, Smith said he was going to take the dog for a walk. Wife testified

that after Smith left, she went to her neighbor’s apartment to call the police.

      Zorah Krug, a 911 dispatcher, recalled that around 8:00 p.m. on the night of

October 13, 2016, she received a call from a crying woman who reported that she had

been assaulted. In a recording of the call, the woman identified herself and said that

her husband Jesse Smith had hit her arms, legs, and chest with a bat.

      Officer Jeffrey Pittman was dispatched to Smith’s apartment. Officer Pittman

testified that when he arrived, he found Wife crying and upset. According to Officer

Pittman, Wife reported that Smith had punched her and tackled her to the ground, and

he then retrieved a baseball bat and hit her in the legs, arms, and stomach. The officer

photographed Wife’s injuries, the smashed tablet, and the bat itself, which had blood



                                            5
on the handle, and which he considered to be a deadly weapon. Smith was not at the

scene, so Officer Pittman went back to the station to write his report.

      Ashley Stratton, a paramedic, testified that she treated Wife at 8:17 p.m. on the

night of the assault. According to Stratton, Wife reported that her husband had beaten

her with a baseball bat, and she had bruising where the bat made contact. Stratton

observed that Wife was “visibly upset and crying,” and that parts of her body were

swollen and red. By Stratton’s account, she told Wife that x-rays were needed in order

to know for sure whether any bones were fractured.

      Officer Pittman testified that around 10:30 p.m. on the same night, he was again

dispatched to Smith’s apartment. According to Officer Pittman, Wife had called 911

to report that Smith was back and pounding on the apartment door. Officer Pittman

testified that when he arrived, he searched the complex but could not find Smith.

      Detective Scott Austin testified that he prepared probable cause affidavits for

Smith’s arrest. Smith was arrested on November 5, 2016. Detective Austin also agreed

that a baseball bat is or can be a deadly weapon.

      Smith also testified at trial, and he offered a very different recollection of events.

Smith testified that on the night before the alleged assault, he slept on a couch in the

couple’s storage unit. Smith attested that the next day, he was in and out of the

apartment, first visiting for breakfast and then to repair a fixture around noon. Smith

took the dog to the park the around 4:00 p.m., he explained, though he left his wallet

and phone behind at the apartment. According to Smith, he had car trouble as he was

                                            6
driving home around dusk, and after a long walk back to the apartment, he arrived

around 10:00 p.m. By Smith’s account, Wife was angry when he got home and accused

him of visiting another woman; Wife would not listen to reason, so he left, headed for

the apartment complex’s gym. Smith explained that he again slept in the couple’s

storage unit. He denied hitting Wife with a bat. According to Smith, Wife never

mentioned that she had called police, and he was surprised when he was later arrested

for aggravated assault. Smith explained that following his release, Wife apologized,

explaining that she was furious when Smith stayed out late, so “she called the police to

make a report to hurt me.”

      On appeal, Smith first challenges the sufficiency of the evidence to show identity,

arguing that the evidence was insufficient to show beyond a reasonable doubt that he

was the one who assaulted Wife. Smith contends that “no witness, including law

enforcement, ever saw Appellant at the scene.”

      But Wife testified at length and identified him as the perpetrator. “[I]t is well-

settled that the testimony of a sole witness to an offense may constitute sufficient

evidence to support a conviction.” Hobdy v. State, Nos. 02-18-00342-CR through 02-

18-00347-CR, 2019 WL 3755781, at *8 (Tex. App.—Fort Worth Aug. 8, 2019, no pet.)

(mem. op., not designated for publication) (citing Aguilar v. State, 468 S.W.2d 75, 77

(Tex. Crim. App. 1971)); Jackson v. State, 530 S.W.3d 738, 742 (Tex. App.—Houston

[14th Dist.] 2017, no pet.). The record reveals no reason why the jury should have

doubted this witness’s testimony. Wife ascribed Smith with a plausible motive—animus

                                           7
from recent fighting—and opportunity. Her testimony was consistent with similar

narratives that she gave to the 911 dispatcher, police, and paramedics immediately after

the assault and while still in turmoil. See Beltran v. State, No. 02-12-00193-CR, 2013 WL

2095776, at *1 (Tex. App.—Fort Worth May 16, 2013, pet. ref’d) (per curiam) (mem.

op., not designated for publication) (holding the evidence sufficient because, inter alia,

the abuse victim’s trial testimony was consistent with multiple accounts she gave on the

day of the assault); see also Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.—Fort Worth

1999, pet. ref’d) (explaining that excited utterances, made while still under the influence

of “emotion, excitement, fear, or pain” and before having the opportunity to fabricate,

are generally regarded as “trustworthy”). Wife’s testimony was also consistent with

other objectively verifiable details in the case, such as the smashed tablet, the wounds

to her arms and legs, and the fresh blood on the handle of the bat, each of which was

photographed shortly after Wife contacted authorities. By contrast, Smith’s version of

events did not account for any of these details. And the jury might reasonably have

been skeptical of certain aspects of Smith’s story: Smith testified that during the time

he was said to be assaulting Wife, he spent several hours alone at a park without his

wallet and cell phone, only to have the car break down on the return trip, forcing him

to walk home, which led Wife to believe that Smith was cheating on her and, in turn,

to fabricate her accusations out of spite. The jury could have rationally believed that

this alibi was an elaborate fiction meant to distance Smith from the apartment, Wife,

and the truth itself. Deferring to the jury’s resolution of the conflicting testimony, we

                                            8
hold the evidence sufficient to prove the element of identity beyond a reasonable doubt.

See Queeman, 520 S.W.3d at 622.

      Next, Smith disputes the sufficiency of the evidence to support the jury’s finding

that he used or exhibited a deadly weapon during the commission of the assault. He

contends that there is no evidence to show that the bat was a deadly weapon based on

the manner in which he purportedly used it.

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

capable of causing death or serious bodily injury. Lane v. State, 151 S.W.3d 188, 191

(Tex. Crim. App. 2004) (quoting Tex. Penal Code Ann. § 1.07(a)(17)(B)). Serious bodily

injury means bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function of

any bodily member or organ. Id. (quoting Tex. Penal Code Ann. § 1.07(a)(46)).

      A baseball bat is not a deadly weapon per se, but it may qualify as a deadly

weapon through the manner of its use. Hammons v. State, 856 S.W.2d 797, 800 (Tex.

App.—Fort Worth 1993, pet. ref’d); Hughes v. State, 739 S.W.2d 458, 459 (Tex. App.—

San Antonio 1987, no pet.). In determining whether an object is a deadly weapon, a

jury may consider (1) the physical proximity between the alleged victim and the object,

(2) any threats or words used by the accused, (3) the size and shape of the object, (4) the

potential of the object to inflict death or serious injury, and (5) the manner in which the

accused allegedly used the object. Kennedy v. State, 402 S.W.3d 796, 802 (Tex. App.—

Fort Worth 2013, pet. ref’d) (mem. op.). The presence and severity of wounds also may

                                            9
be considered, but wounds are not a prerequisite to a finding of deadliness. Hammons,

856 S.W.2d at 800–01; see Lane, 151 S.W.3d at 191. No one factor is determinative, and

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

factfinder could have concluded from the surrounding circumstances that the object

used was a deadly weapon. In re S.B., 117 S.W.3d 443, 447 (Tex. App.—Fort Worth

2003, no pet.).

      As to “the size and shape of the object,” photographs depicted the bat as a long,

rigid object with a green metal barrel. See Kennedy, 402 S.W.3d at 802. Based on the

bat’s physical characteristics and the testimony that an enraged man was wielding it, the

jury could rationally infer that the bat carried at least some potential to inflict serious

injury. Indeed, in past cases, we have found it self-evident that a man wielding a bat

could inflict severe injuries: “we are inclined to believe that all mankind know that

death or serious bodily injury can be inflicted by a baseball bat in the hands of a grown

man.” Hammons, 856 S.W.2d at 801. Regarding physical proximity, there was testimony

that Smith struck Wife with the bat multiple times during an hour-long ordeal, so “the

jury could rationally infer close proximity.” See Faircloth v. State, No. 03-12-00133-CR,

2013 WL 2395194, at *5 (Tex. App.—Austin May 30, 2013, pet. ref’d) (mem. op., not

designated for publication). Wife testified that when Smith wasn’t hitting her with the

bat, he was threatening to knock her teeth out with it:

      Q. Okay. What’s he doing when he is not [hitting you]?



                                            10
      A. Standing beside me with the bat, telling me what he’s gonna do if I
      don’t—if I try to move or try to leave, that he is gonna hit me with it and
      that he’s gonna knock my teeth out and hit me in the head and like using
      it to like tap my head with it, like aiming.
See Hatfield v. State, 377 S.W.2d 647, 649 (Tex. Crim. App. 1964) (concluding that lost

teeth were sufficient to show serious bodily injury). As for the “presence and severity

of wounds,” shortly after the assault took place, multiple witnesses observed Wife to

be crying and visibly injured, with swelling, redness, bruising, and a bump on her

forehead. See Hammons, 856 S.W.2d at 800–01. The potential for serious injury was

further exemplified by the paramedic’s recommendation that Wife should get x-rays to

rule out broken bones. See Shelby v. State, 448 S.W.3d 431, 434 (Tex. Crim. App. 2014)

(referring to “broken bones” in the arms and legs as “serious bodily injury” under the

circumstances). And both Officer Pittman and Detective Austin expressly testified that

in this case, the bat should be considered a deadly weapon. Viewed in the light most

favorable to the jury’s verdict, the cumulative force of this evidence would enable any

rational factfinder to determine that Smith wielded a deadly weapon in assaulting Wife.

See Hammons, 856 S.W.2d at 801 (considering the victim’s “pain upon being struck, his

fear of serious bodily injury, the menacing nature of the bat, the repeated blows

inflicted” in upholding a deadly weapon finding).




                                          11
      Having found the evidence sufficient to support the only two elements

challenged by Smith, we overrule Smith’s first issue.2

                                    III.    RECUSAL

      In his second issue, Smith contends that the administrative judge abused his

discretion by not recusing the trial judge, Jonathan Bailey. For the reasons set forth in

our opinion regarding cause number 02-19-00035-CR, we disagree and overrule Smith’s

second issue.

                                 IV.       CONCLUSION

      We affirm the trial court’s judgment.

                                                         /s/ Wade Birdwell

                                                         Wade Birdwell
                                                         Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 6, 2020



      2
        In the alternative, Smith has argued that the evidence is insufficient to prove
another form of aggravated assault: that the assault caused serious bodily injury to
another. See Tex. Penal Code Ann. § 22.02(a)(1). We have already held that the
evidence is sufficient to support a conviction for aggravated assault via the deadly
weapon method, which renders it unnecessary to consider whether the State has also
proved aggravated assault through the serious injury method. See B.I. v. State, No. 14-
98-00697-CR, 1999 WL 718044, at *2 (Tex. App.—Houston [14th Dist.] Sept. 16, 1999,
no pet.) (not designated for publication) (holding it unnecessary to consider whether
the State proved serious bodily injury because the deadly weapon form of aggravated
assault was already sufficiently proven by evidence concerning appellant’s use of a
baseball bat).

                                            12
