                                    NO. 07-05-0421-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 DECEMBER 5, 2006
                          ______________________________

                         JOSEPH L. VILLARREAL, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2004-405761; HONORABLE JIM BOB DARNELL, JUDGE
                       _______________________________


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


                                MEMORANDUM OPINION


       Appellant, Joseph L. Villarreal, appeals his three convictions of injury to a child and

sentences of four years incarceration in the Institutional Division of the Texas Department

of Criminal Justice on each of the first two convictions and 10 years incarceration probated

for 10 years for the third conviction. We affirm.
                                       Background


       In 2002, T.D.’s mother was killed in an automobile accident which led to T.D. being

placed in appellant’s care. Because of the mother’s death and the child’s subsequent

change in residence, Frances Alonzo, the school counselor, visited with T.D. weekly to help

T.D. cope with these traumatic events. In September of 2003, Lanau Limmer, one of

T.D.’s teachers, observed T.D. in an upset state and spoke with her in an attempt to learn

why she was upset. Limmer learned that appellant had hit T.D. with a coat belt which left

bruises on her. On October 10, 2003, the school nurse observed bruising that T.D.

indicated was caused by appellant hitting her with a belt. Finally, on October 17, 2003, a

second teacher noticed that T.D.’s hands were red and that she was complaining of pain.

T.D. was eight years old at the time of the first two incidents and was nine years old at the

time of the last incident. The teacher and T.D. spoke with Alonzo and the school nurse

regarding this third incident. Based on Alonzo’s ongoing involvement with T.D., information

gathered during weekly sessions with T.D., and knowledge of the previous incidents,

Alonzo asked T.D. for permission to examine her body for other injuries to which she

consented. Upon examination of T.D., Alonzo discovered that she had bruising to her

lower back, buttocks, and thighs.


       Based on these three incidents, appellant was indicted and charged with three

counts of injury to a child. The indictment charging the two earlier incidents also contained

notice of the State’s intent to seek a deadly weapon finding for the use of a belt. A jury

found appellant guilty on all three counts and recommended incarceration of four years for



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the first two counts, and 10 years probated for 10 years in the third case. Appellant

appeals the affirmative findings of the use of a deadly weapon in the first two convictions

alleging legally and factually insufficient evidence to support the deadly weapon findings.

Additionally, appellant appeals his convictions and sentences alleging legally and factually

insufficient evidence to support the convictions.    We affirm.


       In reviewing a claim of legal insufficiency with regard to a deadly weapon finding,

we view the evidence in the light most favorable to the finding to determine whether any

rational trier of fact could have found beyond a reasonable doubt that the defendant used

or exhibited a deadly weapon.           See Searcy v. State, 115 S.W.3d 628, 630

(Tex.App.–Waco 2003, no pet.); Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.–Waco

2002, pet. ref’d). Evidence can be legally sufficient to sustain a deadly weapon finding if

the evidence demonstrates that: (1) the object meets the statutory definition of a deadly

weapon; (2) the deadly weapon was used or exhibited during the transaction from which

the felony conviction was obtained; and (3) other people were put in actual danger.

Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005).


       By statute, a deadly weapon means: (A) a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) 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) (Vernon Supp. 2006). 1 To establish the use of

a deadly weapon, the State is not required to prove the weapon used actually caused



       1
           Further references to a section of the Penal Code will be by reference to “§ _.”

                                              3
death or serious bodily injury but that it was capable of causing death or serious bodily

injury. See Brooks v. State, 900 S.W.2d 468, 472 (Tex.App.–Texarkana 1995, no pet.).


       We will now review the evidence in light of the three factors in Drichas. The school

nurse testified that a belt, used in a manner such as in the present case, has the potential

to cause injuries to internal organs if a person is hit in the lower back area, specifically

kidney damage. Thus evidence was presented that the belt met the statutory definition of

a deadly weapon. As to the second factor, appellant contends that no evidence was

presented to the jury to demonstrate that the belt was used as a deadly weapon during the

transaction from which the conviction was obtained because each witness stated that the

belt could cause death or serious bodily injury if the belt was used with enough force. Even

with such a qualification, the witnesses testified that the belt was capable of causing

serious bodily injury. Further, the jury observed the photos and heard the witnesses’

testimony describing the extent, severity, and location of the bruises. Therefore, the jury

has sufficient information to determine that the belt was used “during the transaction” as

a deadly weapon. See Brooks, 900 S.W.2d at 472 (jury’s duty is to reconcile evidentiary

conflicts and its decision will be upheld if supported by credible evidence). Finally, the

nurse testified that, in her opinion, appellant used the belt with sufficient force to cause

severe bruising and had the potential to cause injuries to internal organs. The nurse

concluded that a belt used in this manner could kill a person if the person were hit hard

enough.    Therefore, we conclude that the jury had sufficient evidence to make the

determination that T.D. was put in actual danger. Viewing all the evidence in light most

favorable to the verdict, we conclude that a rational jury could have found beyond a


                                             4
reasonable doubt that the belt was capable of causing death or serious bodily injury and

thus could be considered a deadly weapon. We further conclude that the jury had

evidence that it could have found beyond a reasonable doubt that the defendant used or

exhibited the belt as a deadly weapon. Therefore, the evidence is legally sufficient to

support an affirmative deadly weapon finding.


       When reviewing the factual sufficiency of the evidence supporting a deadly weapon

finding, we review all the evidence in a neutral light to determine whether the affirmative

finding of a deadly weapon is so weak as to be clearly wrong or manifestly unjust. See

Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003) (manifestly unjust standard

applies when complaining party did not have burden of proof at trial).


       In addition to the school nurse’s testimony noted above, three teachers and the

school counselor testified to personally observing the extent of the bruising as well as the

location of the bruising. Additionally, several photographs of the bruising were admitted

and available for the jury to review in making their determination. Considering all of the

evidence in a neutral light, we cannot conclude that the evidence was so weak that the

jury’s affirmative finding as to the deadly weapon issue was clearly wrong or manifestly

unjust. Therefore, we conclude that the evidence was factually sufficient to support the

jury’s affirmative deadly weapon finding. We overrule appellant’s issue and will next

consider the sufficiency of the evidence supporting the convictions.


       In reviewing the legal 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


                                              5
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, 573 (1979); Ross v. State, 133

S.W.3d 618, 620 (Tex.Crim.App. 2004). The jury is the sole judge of the weight and

credibility of the evidence. Jackson, 443 U.S. at 319.


       When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding defendant guilty beyond a reasonable

doubt. See Watson v. State, 2006 WL 2956272, at *8 (Tex.Crim.App. Oct. 18, 2006). In

performing a factual sufficiency review, we are to give deference to the fact finder’s

determinations and not seek to order a new trial simply because we may disagree with the

verdict. See id. As an appellate court, we are not justified in ordering a new trial unless

there is some objective basis in the record demonstrating that the great weight and

preponderance of the evidence contradicts the jury’s verdict. See id. at *10. An opinion

addressing factual sufficiency must include a discussion of the most important and relevant

evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d

600, 603 (Tex.Crim.App. 2003).


       As to the sufficiency of the evidence supporting the conviction, appellant’s sole

contention is that the State failed to negate appellant’s justification defense that his use of

force was disciplinary. § 9.61(a). Specifically, appellant contends that the State failed to

show that (1) the force used by appellant, acting in loco parentis, to discipline T.D. was not

reasonable and necessary; or (2) appellant could not have reasonably believed the force

was reasonable and necessary to discipline T.D. However, the justification provision raised

                                               6
by appellant does not allow the use of deadly force. See § 9.61 (a). "Deadly force" means

force that is intended or known by the actor to cause, or in the manner of its use or

intended use is capable of causing, death or serious bodily injury. § 9.01. Hence, if the

State’s evidence proves that the force, in the manner of its use or intended use, was

capable of causing death or serious bodily injury, then the justification defense raised by

appellant is inapplicable.


       We note that the definitions for deadly force and deadly weapon contain similar

language. Compare § 1.07(a)(17)(B) and § 9.01. As previously discussed in our analysis

of the jury’s affirmative deadly weapon finding, the evidence was legally and factually

sufficient to support a finding that the belt, as used or as it was intended to be used, was

capable of causing death or serious bodily injury. Therefore, the jury’s affirmative deadly

weapon finding can arise only if the jury also concluded that the belt, in the manner of its

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

concluded that the evidence is sufficient to support the jury’s affirmative deadly weapon

finding, appellant cannot claim justification under section 9.61 for his actions because

deadly force was used.


       However, even if the defense of justification was available to appellant, the State

was not required to specifically negate appellant’s defense. The State is required to

present evidence sufficient to convince a jury that appellant committed each element of the

offense presented. See Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991)

(State does not have burden of production but rather a burden of persuasion in disproving

a defense). A verdict of guilty is an implicit rejection of appellant’s defensive argument.

                                             7
See Zuliani, 97 S.W.3d at 594. Therefore, assuming arguendo that appellant legitimately

raised the justification defense that the belt’s use was for disciplinary purposes, the jury’s

verdict demonstrates that the jury rejected appellant’s claim of justification. Viewing the

evidence discussed above in the light most favorable to the verdict, we conclude that a

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt.


       Furthermore, we may not order a new trial unless there is some objective basis in

the record demonstrating that the great weight and preponderance of the evidence

contradicts the jury’s verdict.   Considering the extent of bruising described by the

witnesses, appellant’s admission of the use of the belt on T.D. and the photographs

admitted into evidence, we cannot conclude that the great weight and preponderance of

the evidence contradicts the jury’s verdict. See Watson, 2006 WL 2956272, at *10. We

conclude that the evidence is both legally and factually sufficient to support the jury’s

verdict. We overrule appellant’s issues of legal and factual insufficiency of the evidence

to support the convictions.


       Having overruled appellant’s issues, we affirm.




                                                  Mackey K. Hancock
                                                      Justice



Do not publish.


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