                                 NO. 07-04-0482-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                  AUGUST 19, 2005

                        ______________________________


                       GUADALUPE VASQUEZ, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2004-404954; HONORABLE CECIL G. PURYEAR, JUDGE

                        _______________________________

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


                              MEMORANDUM OPINION


      Following a plea of not guilty, appellant Guadalupe Vasquez was convicted by a jury

of aggravated assault on a public servant and sentenced to 99 years confinement and a

$10,000 fine. He was also convicted of assault on a public servant and sentenced to ten

years confinement and a $10,000 fine. By a single issue, appellant contends the State’s
evidence is factually insufficient to support an affirmative finding that he used a deadly

weapon during the commission of the assault. We affirm.


       Appellant was arrested for assaulting a police officer in a nightclub parking lot.

Officer Jeremy Winters was on patrol outside the Latin Paradise Club when he observed

appellant trying to enter a locked vehicle. Due to recent vehicle burglaries in the area,

Officer Winters approached appellant and asked for identification. Appellant was unable

to produce any identification but informed the officer the vehicle belonged to a friend. While

Officer Winters attempted to verify the registered owner of the vehicle, appellant made

several attempts to walk back into the nightclub. On the third attempt, Officer Winters

grabbed appellant’s arm and began walking him back toward the vehicle. Appellant pushed

the officer to the ground and a struggle ensued.


       During the struggle, Officer Winters observed what appeared to be a small rock in

appellant’s hand. In an attempt to subdue appellant, the officer pulled out his baton and

struck appellant on the back of the leg causing him to fall to the ground. After appellant got

back on his feet, Officer Winters saw him swinging the rock and acting “as if he was going

to throw it.” However, he did not hit the officer with the rock. At some point, appellant fled

to a nearby railroad track. There, Officer Winters heard appellant say, “I’ve got a rock for

you” and saw a large, silver rock in his hand. Shortly thereafter, backup officers arrived on

the scene and appellant was taken into custody. At the punishment phase of trial, appellant

admitted to assaulting the officer but denied ever threatening him with a rock.



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       By his sole issue on appeal, appellant contends the evidence is factually insufficient

to prove he used a rock as a deadly weapon in the assault. Specifically, appellant

maintains Officer Winters’s testimony is insufficient because no rock was proffered into

evidence and because the State failed to present any expert testimony as to whether the

rocks qualified as deadly weapons. He further claims, since he never hit the officer, the

rock only had a hypothetical capability of causing death or serious bodily injury. We

disagree.


       When reviewing a factual sufficiency claim, we must view all the evidence without

the prism of “in the light most favorable to the prosecution” and set aside the verdict only

if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App. 1996). We must determine,

considering all of the evidence in a neutral light, whether the jury was rationally justified in

finding guilt beyond a reasonable doubt.           Zuniga v. State, 144 S.W.3d 477, 484

(Tex.Cr.App. 2004). However, we must give deference to the jury verdict and their

determinations involving the credibility of witnesses. Clewis, 922 S.W.2d at 135 (holding

“courts ‘are not free to reweigh the evidence and set aside a jury verdict merely because

the judges feel that a different result is more reasonable.’" (citing Pool v. Ford Motor Co.,

715 S.W.2d 629, 634 (Tex. 1986)).


       There are two ways evidence may be insufficient. Zuniga, 144 S.W.3d at 484. First,

evidence supporting the verdict may be too weak to support a guilty verdict beyond a

reasonable doubt. Id. Second, there may be both evidence supporting the verdict and

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evidence contrary to the verdict. Evidence is factually insufficient if, when weighing all the

evidence, the contrary evidence is so strong that the beyond-a-reasonable-doubt standard

could not have been met.       Id. at 485.    Under this standard, evidence of guilt can

“preponderate” in favor of conviction but still be insufficient to prove the elements of the

crime beyond a reasonable doubt. Id.


       However, before determining whether the evidence is factually sufficient to sustain

the finding, we must review the essential elements the State was required to prove. A

defendant commits aggravated assault if he (1) causes serious bodily injury to another, or

(2) uses or exhibits a deadly weapon during the commission of an assault. Tex. Pen. Code

Ann. § 22.02(a) (Vernon Supp. 2004-05). Because a rock is not a deadly weapon per se,

the State must prove “that in the manner of its use or intended use [it was] capable of

causing death or serious bodily injury.” Id. at §1.07(a)(17)(B). Serious bodily injury is

defined as “bodily injury that creates a substantial risk of death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily member or

organ.” Id. at (46). The statute does not require that the actor actually intend death or

serious bodily injury, only that the object used is capable of causing death or serious bodily

injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App. 2000).


       Whether an object qualifies as a deadly weapon depends upon the evidence

presented. See Thomas v. State, 821 S.W.2d 616, 620 (Tex.Cr.App. 1991). This Court

has previously recognized that expert testimony is not required to determine the nature of

a weapon nor is it necessary that the weapon be introduced into evidence for the State to

                                              4
meet its burden of proof. Aleman v. State, 795 S.W.2d 332, 335 (Tex.App.–Amarillo 1990,

no pet.) (citing Morales v. State, 633 S.W.2d 866, 868 (Tex.Cr.App. 1982). Also, it is

unnecessary to show that any wounds were inflicted. Davidson v. State, 602 S.W.2d 272,

273 (Tex.Cr.App. 1980). However, where no actual injury is sustained, the State must

present evidence of other factors to establish that an object is a deadly weapon. See Victor

v. State, 874 S.W.2d 748, 751 (Tex.App.–Houston [1st Dist.] 1994, pet. ref’d). Factors to

consider in that determination include the dimensions and sharpness of the object, the

manner of its use, testimony of its life-threatening capabilities, and the physical proximity

of the accused and the victim. See Thomas, 821 S.W.2d at 620. See also Davis v. State,

22 S.W.3d 638, 641 (Tex.App.–Waco 2000, pet. ref’d); Garcia v. State, 17 S.W.3d 1, 4

(Tex.App.–Houston [1st Dist.] 1999, pet. ref’d). The essential question is determining

whether sufficient evidence was presented to establish that a defendant used or intended

to use the object in a manner “capable” of causing serious bodily injury or death. Alvarez

v. State, 566 S.W.2d 612, 614 (Tex.Cr.App. 1978).


       Here, Officer Winters testified that he was threatened with two different rocks while

trying to subdue appellant. He testified the first rock was “smaller” and the second rock

was silver and larger than appellant’s hand. In both instances, he observed appellant

swinging the rocks at him “as if he wanted to cause injury,” and at one point, he heard

appellant say, “I’ve got a rock for you.” Officer Winters said he feared for his safety and

believed appellant would have struck him with the rocks had he not avoided them. He also

testified the rocks were being used in a manner capable of causing death or serious bodily


                                             5
injury and discussed several hypothetical injuries he believed could have resulted if he

were struck by one of the rocks.


        In support of his proposition, appellant relies on Davidson, 602 S.W.2d at 274,

which found the evidence insufficient to establish that a knife with a two and one-half to

three inch blade was a deadly weapon. In that case, a grocery store employee observed

Davidson shoplifting camera film. Id. at 273. As Davidson left the store, the employee who

observed the shoplifting, accompanied by two other employees, confronted him. Id.

Davidson turned the knife on one of the employees and said, "If you come any closer, I'm

going to cut you." Id. The employee pulled a cardboard box cutter from his pocket to

defend himself, and Davidson turned and ran. Id. Although the knife used in that case was

not produced in evidence, the employee testified to the size of the knife and said he was

placed in fear of death or imminent bodily injury. Id.


       In reaching its holding, the Court noted that while the blade was two and one-half

to three inches long, the victim was five or six feet away when appellant gestured at him

with the knife and that appellant did not come closer but turned and ran away. Id. at 274.

Furthermore, the victim in that case qualified his testimony that he was in fear of death or

imminent bodily injury by explaining that a friend of his had been previously hurt by a

person with a screwdriver in an encounter in a parking lot.          Id. The court further

acknowledged that the knife was not introduced into evidence and that the State had failed

to establish the knife's potentiality for harm through the use of a weapons expert. Id.



                                             6
       Although facially similar, the present case is distinguishable from Davidson in

several ways. First, unlike the victim in Davidson, Officer Winters was in close proximity

to his assailant and had to step back to avoid being hit with the rock. Second, when the

two men were apart, appellant threatened to throw the rock. Finally, Officer Winters was

fearful of the rock causing him serious bodily injury or death due to the manner in which it

was being used, whereas the employee in Davidson feared the weapon because his friend

had been injured in a similar encounter. Considering these differences, we find appellant’s

reliance on Davidson to be misplaced.


       After reviewing the entire record, we conclude the evidence was sufficient to enable

a jury to rationally conclude appellant used or exhibited a rock during the commission of

the assault and that, in the manner of its use, the rock constituted a deadly weapon.

Appellant’s point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                           Don H. Reavis
                                             Justice


Do not publish.




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