                                    NO. 07-05-0414-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                    MAY 10, 2006
                           ______________________________

                                 RICKEY LEE ROGHAIR,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

                FROM THE 271ST DISTRICT COURT OF WISE COUNTY;

                   NO. 12,919; HON. JOHN H. FOSTEL, PRESIDING
                        _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

        Appellant, Rickey Lee Roghair, challenges his conviction for aggravated assault with

a deadly weapon. Through one issue, he contends that the evidence was legally and

factually insufficient to support the finding that the fireplace poker he used to assault the

victim constituted a deadly weapon. We overrule the issue and affirm the judgment of the

trial court.
       The standards by which we review the legal and factual sufficiency of the evidence

are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004),

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556

(Tex. Crim. App. 2000) for an explanation of them.

       Next, when a person is charged with using a deadly weapon, the evidence must

establish that the instrument used was actually deadly. Lockett v. State, 874 S.W.2d 810,

814 (Tex. App.–Dallas 1994, pet. ref’d). The Penal Code defines a “deadly weapon” as

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

serious bodily injury; or . . . anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury. . . .” TEX . PEN . CODE ANN . §1.07(a)(17)(A)

& (B) (Vernon Supp. 2005). And, while a fireplace poker may not be a deadly weapon per

se, it may be shown to be so via evidence of its size, shape, manner of use or intended

use, and capacity to produce death or serious injury. Additionally, evidence of the physical

proximity between the victim and the object, threats or words used by the assailant, the

size and shape of the weapon, the weapon’s ability to inflict death or serious bodily injury,

and the manner in which the defendant used the weapon are indicia susceptible of

consideration. Nash v. State, 175 S.W.3d 427, 430 (Tex. App.–Texarkana 2005, pet. ref’d);

Bailey v. State, 46 S.W.3d 487, 491 (Tex. App.– Corpus Christi 2001, pet. ref’d). Finally,

while expert testimony regarding the deadly nature of an object may be offered, it is not

required. English v. State, 647 S.W.2d 667, 668-69 (Tex. Crim. App. 1983).

       Here, the record shows that the fireplace poker used by appellant against his wife

Cynthia, although not described in the record, was introduced into evidence. Additionally,

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Cynthia testified that appellant stabbed and hit her with it about her arms, breasts, throat

and face. And, while stabbing her, one thrust pierced her cheek, “went all the way through

[her] mouth, . . . came out this side . . . .” and broke a partial plate holding various false

teeth. During this time, appellant also stated that he was going to kill her, and Cynthia was

afraid he was. Pictures of the various wounds suffered by the victim were also admitted

into evidence.

       Admittedly, no description of the weapon appears in the record. Nor did an expert

testify as to the poker’s deadly nature. However, the jury had the actual poker. So too did

it hear testimony and see pictures depicting the force with which it was used and the nature

of the wounds it was capable of inflicting. Given this, a jury could have rationally inferred

beyond reasonable doubt that the poker was capable of causing death or serious bodily

injury. Moreover, the finding is not manifestly unjust. Nor does it undermine our confidence

in the proceeding when tested against the evidence of record. Consequently, that portion

of the verdict equating the poker to a deadly weapon is supported by both legally and

factually sufficient evidence.

       The judgment of the trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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