                                  NO. 12-18-00039-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

 ALFRED EUGENE SIMPSON,                           §      APPEAL FROM THE 114TH
 APPELLANT

 V.                                               §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Alfred Eugene Simpson appeals from his conviction for aggravated assault with a deadly
weapon. In two issues, he challenges the sufficiency of the evidence. We affirm.


                                         BACKGROUND
       The State charged Appellant with intentionally, knowingly, and recklessly causing bodily
injury to Robert Spencer, Sr. by striking him with a pole and a walking stick, and using or
exhibiting a deadly weapon, to-wit: a pole and walking stick, during commission of the assault.
The indictment also alleged a prior felony conviction for injury to a child. Appellant pleaded “not
guilty” to the charges against him.
       The trial record demonstrates that Spencer and Kimberly Simpson, Appellant’s wife, are
the parents of five children. According to Spencer and his fiancé Cawandra Mooreing, they
attempted to return the children to the hotel where Kimberly and Appellant were staying, but no
one answered the door. Because the children were concerned about their mother, Mooreing called
police to conduct a welfare check. Tyler Police Officer Joshua Smedley testified that he conducted
the welfare check, but no one answered the door. When he obtained a key from the hotel clerk
and opened the door, he encountered Appellant and Kimberly. Both appeared to be intoxicated.
Smedley told them that Spencer was trying to return the children to Kimberly. He then notified
Spencer that Kimberly was okay.
       Subsequently, Mooreing and Spencer went to the Motel 6 to meet Kimberly and Appellant
to return the children. The record indicates that the Motel 6 is across the street from where
Kimberly and Appellant were staying. Mooreing testified that when she first saw Kimberly and
Appellant approaching, Appellant had a pole in his hand. Shortly thereafter, she saw Appellant
swing the pole at Spencer’s head and hit Spencer with the pole. Spencer’s oldest son ran to help,
and Appellant struck the son with either his hand or the pole. Spencer and Appellant began
fighting, during which Mooreing and Kimberly also became involved in a physical altercation.
Kimberly struck Mooreing in the head with an object that Mooreing later discovered to be a gun.1
People from the hotel ran out to stop the fighting, after which Mooreing called 911.
       Spencer, who admitted having other altercations with Appellant, testified that when he first
saw Appellant and Kimberly, he saw something in Appellant’s hand, like a pole or stick, but he
was not concerned. When he was hugging his children goodbye, he saw Appellant standing there
with a pole. Spencer said, “I know you not fixin’ to hit me with that pole.” He explained that
Appellant swung the pole and “from there on, [Appellant] was Babe Ruth and I was a baseball.”
Spencer testified that he was struck in the arm with the pole and that Appellant was also punching
him. Once the fight ended, Spencer had the pole, but he denied ever hitting anyone with it. He
further testified that he was unarmed. Spencer went to the doctor the following day and was
diagnosed with a fracture near his eye. He was unsure if he was struck in the eye with the pole or
during the subsequent altercation, but he experienced pain from the injury. He admitted that had
he located Appellant after the assault, he would have done “the same thing he did to me.”
       Kimberly testified that Appellant always carried a wooden walking stick. On the day of
the offense, she saw Spencer swinging and hitting Appellant, which knocked him to the ground.
She testified that Spencer punched Appellant and cut Appellant’s eyebrow. During the altercation,
Kimberly saw the men struggling with a metal pole. She did not know where the pole came from,
but she knew Appellant did not bring it to the scene. She further testified that Mooreing jumped
on Appellant’s back and cut him across the back. Kimberly explained that Appellant suffered
injuries from the altercation, including cuts, gashes, scuffs, and a mark from being hit with
something. She never saw anyone get hit with a pole or walking stick, but she agreed that the pole

       1
           Officers later confirmed the weapon as a BB gun.


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is a serious weapon. When the fight ended, they returned to their hotel room with the children, but
were concerned about Mooreing and Spencer pursuing them because after the fight, Kimberly saw
them approaching in an aggressive manner. After later being contacted by law enforcement,
Kimberly told officers about the walking stick. She had no doubt that Spencer initiated the
altercation and that Appellant’s actions were justified.
       Kimberly’s mother testified that she would not be surprised if Spencer started the fight.
She also testified to seeing an altercation between Appellant and Spencer in the last year before
trial. Appellant’s mother testified that on the day of the offense, she received communications
from Mooreing that suggested an altercation between Appellant and Spencer was imminent. She
also testified to a prior instance when Spencer wanted to fight Appellant, but she had never seen
the two men in a physical altercation.
       Tyler Police Officer Ralph Buckingham testified that on May 22, 2017, he was dispatched
to a Motel 6 regarding an assault. When he arrived, he encountered Spencer and Mooreing. Both
individuals were bleeding from their heads and faces and appeared to have been “beat up.”
Spencer held a white metal pipe.
       Tyler Police Officer Donald Rutledge testified that when he made contact with Appellant,
Appellant was sweating, out of breath, and had some injuries. Tyler Police Officer John Pitts
testified that Appellant appeared to be bleeding from his head. Appellant refused medical
treatment and refused to allow photographs of his injuries. Kimberly testified that Appellant did
not want medical treatment or his injuries photographed because he wanted the police to leave.
She took photographs of the injuries and delivered them to investigators for Appellant’s attorney.
       Detective Kenneth Gardner with the Tyler Police Department testified that Appellant told
him he found the pole laying on the ground at the Motel 6. He testified that someone, who he
believed was Kimberly, mentioned Appellant leaving their hotel with a walking stick. He further
testified that Kimberly sent Robert a text on May 22, which stated in part, “don’t be stupid since
you know my husband wants to get at you for the bull shit you pulled…he can whop both y’all by
himself[.]” He also confirmed that the pole, in the manner of its use, was capable of causing
serious bodily injury or death.
       Forensic scientist Clare Moyers testified that the stained portion of the pole was tested for
DNA and results showed a mixture of two individuals. She explained as follows:




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       Obtaining this mixture profile is 69.3 nonillion times more likely if the DNA came from Robert
       Spencer and one unknown individual than if it came from two unknown individuals. It’s the --
       obtaining the mixture was 35.5 million times more likely if it came from Alfred Simpson and one
       unknown individual than if it came from two unrelated unknown individuals. Both Alfred Simpson
       and Robert Spencer were -- could not be excluded as possible contributors. And then this is just an
       additional statistic where obtaining the mixture profile is 39.3 duodecillion times more likely if the
       DNA came from Robert Spencer and Alfred Simpson than if it came from two unrelated unknown
       individuals.


With respect to the unstained portion of the pole, Moyers testified to the following:


       Obtaining this mixture profile is 14.9 nonillion times more likely if the DNA came from Robert
       Spencer and two unknown individuals than if it came from three unrelated unknown individuals.
       Obtaining this mixture is 1.51 septillion times more likely if the DNA came from Alfred Simpson
       and two unknown individuals than from three unrelated unknown individuals. Alfred Simpson and
       Robert Spencer cannot be excluded as possible contributors. And obtaining this mixture is 292
       septendecillion times more likely if the DNA came from Robert Spencer, Alfred Simpson, and one
       unknown individual than if it came from three unrelated unknown individuals.


       At the conclusion of trial, the jury found Appellant “guilty” of aggravated assault with a
deadly weapon and sentenced Appellant to fifteen years of imprisonment. This appeal followed.


                                     SUFFICIENCY OF THE EVIDENCE
       In issue one, Appellant challenges the sufficiency of the evidence to support a finding that
the pole used during commission of the offense constitutes a deadly weapon. In issue two,
Appellant challenges the sufficiency of the evidence to support the judgment of conviction.
Standard of Review and Applicable Law
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal
conviction. See Jackson v. Virginia, 443 U.S. 307, 316–17, 99 S. Ct. 2781, 2786–87, 61 L. Ed.
2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See
id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the light most favorable to the
verdict. Id. A successful legal sufficiency challenge will result in rendition of an acquittal by the


                                                         4
reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed.
2d 652 (1982). This familiar standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
the basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Dewberry v.
State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899. Instead,
we defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational.
See Brooks, 323 S.W.3d at 899–900. When the record supports conflicting inferences, we presume
that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that
determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and
circumstantial evidence are treated equally. Id. Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of a
reviewing court is to ensure that the evidence presented actually supports a conclusion that the
defendant committed the crime charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007).
       The sufficiency of the evidence is measured against the elements of the offense as defined
by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id.
       A person commits aggravated assault with a deadly weapon when he intentionally,
knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon
during commission of the assault. See TEX. PENAL CODE ANN. §§ 22.01(a) (West Supp. 2017),
22.02(a) (West 2011). A “deadly weapon” is “anything that in the manner of its use or intended
use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B) (West Supp. 2015).
A jury may consider several factors in determining whether an object is a deadly weapon, including
(1) the accused’s words; (2) the weapon’s intended use; (3) the weapon’s size and shape; (4)
testimony by the victim that he feared death or serious bodily injury; (5) the severity of any wounds



                                                  5
inflicted; (6) the manner in which the assailant allegedly used the object; (7) the parties’ physical
proximity; and (8) testimony as to the weapon’s potential for causing death or serious bodily injury.
Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). “No one
factor is determinative, and an appellate court must examine each case on its own facts to
determine whether the fact finder 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.).
Analysis
       On appeal, Appellant complains that Spencer was “not even sure that the pole hit him
anywhere but the arm, and there was a lack of evidence regarding the pole being able to be
considered a deadly weapon….[t]he most severe injuries to Mr. Spencer were to his head, and he
testified that those were caused by [Appellant’s] fists.” According to Appellant, “[w]hile arguably,
the evidence was sufficient to establish an assault, it was not enough to establish the pole meets
the Texas definition of a deadly weapon.” We disagree.
       With respect to whether the pole qualifies as a deadly weapon, the pertinent question is
whether the pole was capable of causing death or serious bodily injury. See TEX. PENAL CODE
ANN. § 1.07(a)(17)(B). The jury was able to view photographs of the pole, which show a
substantially sized white pole with spots of blood on various parts of the pole. Both Spencer’s and
Appellant’s DNA was recovered from the pole. Officer Buckingham testified that the pole was
metal and approximately four feet long and an inch or inch and a half in diameter. Detective
Gardner opined that the pole, in the manner of its use, was capable of causing serious bodily injury
or death.
       Officer Buckingham testified that both Spencer and Mooreing appeared to have been
beaten. The jury heard Mooreing testify that Appellant swung the pole at Spencer and heard
Spencer describe himself as a baseball being struck by Babe Ruth. Spencer testified that he and
Appellant were “standing side by side” when the assault began and that it hurt to be hit with the
pole. He also testified to blocking the pole with his arm or Appellant was “gonna knock my head
off.” He testified that the eye injury occurred while Appellant was punching him with his fist and
he was unsure of whether he was hit in the eye with the pole. Nevertheless, the jury was also able
to view photographs of Spencer’s injuries, heard Mooreing’s testimony that Appellant struck




                                                 6
Spencer in the “eye part” of his head, and heard testimony that Spencer suffered a painful fracture
near his eye.
       As sole judge of the weight and credibility of the evidence, the jury bore the burden of
reconciling the testimony and determining which evidence to believe. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; see also Clayton, 235 S.W.3d at 778. In doing so, the photographs of the
injuries, combined with testimony that Spencer was diagnosed with a fracture, could lead the jury
reasonably to conclude that the facial injury was too severe to have occurred from a punch, as
opposed to a strike from a metal pole. See Clayton, 235 S.W.3d at 778 (jury’s duty includes
drawing reasonable inferences from basic facts to ultimate facts). Based on evidence regarding
the pole’s size and shape, Spencer’s and Mooreing’s testimony, photographs of Spencer’s injuries,
the manner in which Appellant used the pole, the close physical proximity between the parties at
the time of the attack, and Detective Gardner’s testimony as to the pole’s potential for causing
death or serious bodily injury, the jury could reasonably conclude that the pole, in the manner of
its use or intended use, was capable of causing death or serious bodily injury. See TEX. PENAL
CODE ANN. § 1.07(a)(17)(B); see also Romero, 331 S.W.3d at 83; Mass v. State, No. 01-12-01004-
CR, 2014 WL 298439, at *4 (Tex. App.—Houston [1st Dist.] Jan. 28, 2014, no pet) (mem. op.)
(evidence supported jury’s finding that pvc pole was capable of causing death or serious bodily
injury); McElhaney v. State, 899 S.W.2d 15, 17 (Tex. App.—Tyler 1995, pet. ref’d) (“[p]ipes and
similar objects have been found to be deadly weapons”).
       The evidence is likewise sufficient to support the judgment of conviction. The jury was
entitled to infer intent from Appellant’s actions before, during, and after the offense. See Cary v.
State, 507 S.W.3d 750, 758 (Tex. Crim. App. 2016). Appellant admitted to Detective Gardner
that he found the pole on the ground at the Motel 6. Spencer and Mooreing both saw Appellant in
possession of the pole before the assault and both testified to him swinging the pole at Spencer.
The jury could reasonably infer that Appellant picked up the pole and brought it to the meeting
place with intent to cause bodily injury to Spencer, and was entitled to disregard Kimberly’s
testimony that Spencer was the aggressor. See Clayton, 235 S.W.3d at 778; see also Guevara v.
State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (intent may be inferred from circumstantial
evidence); see also Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (“guilty” verdict
is an implicit finding rejecting defensive theory). Moreover, Spencer testified that Appellant was
nowhere to be found after the assault. Officer Rutledge located Appellant inside his hotel room



                                                 7
and he further testified that neither Appellant nor Kimberly had contacted 911. Appellant
subsequently refused medical treatment and refused to allow officers to photograph his injuries.
The jury could have rejected Kimberly’s explanation for Appellant’s behavior and reasonably
viewed these refusals, coupled with Appellant’s failure to contact police and his disappearance
from the scene, as consciousness of guilt. See Clayton, 235 S.W.3d at 778; see also Cueva v.
State, 339 S.W.3d 839, 881-82 (Tex. App.—Corpus Christi 2011, pet. ref’d) (any conduct by
someone “accused of a crime subsequent to its commission, which indicates a consciousness of
guilt may be received as a circumstance tending to prove that he committed the act with which he
is charged”).
         Thus, viewing the evidence in the light most favorable to the State, we conclude that the
jury was rationally justified in finding, beyond a reasonable doubt, that Appellant intentionally,
knowingly, or recklessly caused bodily injury to Spencer and used or exhibited a deadly weapon
during commission of the assault. See TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 22.01(a),
22.02(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Because the evidence is sufficient
to support the jury’s verdict that Appellant committed aggravated assault with a deadly weapon,
we overrule Appellant’s two issues.


                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice


Opinion delivered November 5, 2018.
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

                                         NOVEMBER 5, 2018


                                          NO. 12-18-00039-CR


                                   ALFRED EUGENE SIMPSON,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0986-17)

                    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.
