NO. 07-08-00358-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

SEPTEMBER 17, 2010 

HENRY BALTAZAR, JR., APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2008-419,264; HONORABLE CECIL G. PURYEAR, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

OPINION 

Appellant Henry Baltazar Jr. appeals from his conviction of the offense of 

aggravated assault with a deadly weapon1 and the resulting sentence of fifty-five years 

of imprisonment. Via his sole issue, appellant contends the evidence presented at trial 

was factually insufficient. We will affirm the judgment of the trial court. 

 1 See Tex. Penal Code Ann. ' 22.02(a)(2) (Vernon 2007). The indictment also 

included an enhancement paragraph setting forth appellant=s previous final felony 

conviction. Appellant plead Atrue@ to the enhancement, making his conviction 

punishable as a first degree felony. See Tex. Penal Code Ann. ' 12.42 (Vernon 2003). 
2 

Background 

Trial testimony showed that appellant administered a beating to his girlfriend 

during an argument. Among her injuries, the most serious were fractures of bones in 

her face. The jury found appellant guilty of aggravated assault with a deadly weapon, 

and assessed punishment as noted. This appeal followed. 

Analysis 

A factual sufficiency review begins with the assumption that the evidence is 

legally sufficient under Jackson v. Virginia.2 Laster v. State, 275 S.W.3d 512, 518 

(Tex.Crim.App. 2009). Evidence can be deemed factually insufficient in two ways: (1) 

the evidence supporting the conviction is Atoo weak@ to support the factfinder=s verdict, 

or (2) considering conflicting evidence, the factfinder=s verdict is Aagainst the great 

weight and preponderance of the evidence.@ Laster, 275 S.W.3d at 518; see Watson v. 

State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1, 

11 (Tex.Crim.App. 2000) (setting forth same standard). 

Under the variant of the offense of aggravated assault with which appellant was 

charged, his guilt required the State to prove: (1) he intentionally, knowingly or 

recklessly; (2) he caused bodily injury to the victim; (3) he used or exhibited his hand 

during the commission of the assault; and (4) that appellant=s hand, in the manner of its 

use or intended use, was capable of causing death or serious bodily injury. Tex. Penal 

Code Ann. '' 22.01(a)(1) (Vernon 2007); 22.02(a)(2) (Vernon 2005). 

 2 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
3 

As we understand appellant’s position on appeal, he does not challenge the 

sufficiency of the evidence that, with the required culpable mental state and using his 

hand, he caused bodily injury to his girlfriend. With respect to the final element, that 

establishing his use of a deadly weapon, appellant appears to take the position the 

State was required to prove the injuries he inflicted on her constituted serious bodily 

injury.3 Appellant’s argument is to the effect that the victim’s injuries did not meet the 

definition of serious bodily injury. The State, while not conceding that the victim’s 

injuries were less than serious bodily injury, points out that its burden in this case simply 

was to prove that appellant used his hands in a manner capable of causing death or 

serious bodily injury. The State is correct. Tex. Penal Code Ann. ' 1.07(17)(B) (Vernon 

2003); Tucker v. State, 274 S.W.3d 688, 691 (Tex.Crim.App. 2008); Petruccelli v. State, 

174 S.W.3d 761, 770 (Tex.App.BWaco 2005, pet. ref=d), cert. denied, 549 U.S. 839, 127 

S.Ct. 106, 166 L.Ed.2d 66 (2006). 

As appellant concedes, hands may be deadly weapons based on their manner of 

use or intended use and their capacity to produce death or serious bodily injury. 

Petruccelli, 174 S.W.3d at 770, citing Turner v. State, 664 S.W.2d 86, 90 

(Tex.Crim.App. 1983) (panel op.) and Vela v. State, 159 S.W.3d 172, 182 

(Tex.App.BCorpus Christi 2004, no pet.). Injuries suffered by the victim can alone be a 

sufficient basis for inferring that a deadly weapon was used. See Jaramillo v. State, No. 

 3

 ABodily injury@ means physical pain, illness, or any impairment of physical 

condition. Tex. Penal Code Ann. ' 1.07(8) (Vernon 2003). ASerious 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. Tex. Penal Code Ann. ' 1.07(46) (Vernon 2003). 
4 

07-08-0148-CR, 2009 Tex.App. LEXIS 1781, at *7 (Tex.App.BAmarillo Mar. 13, 2009, 

no pet.); Tucker, 274 S.W.3d at 691-92.4

 

Testimony at trial showed appellant’s beating left his girlfriend with a bloody 

nose, bruises on her arm and abrasions on her legs and back. After he hit her in the 

face with his fist, she was briefly unconscious. The record contains her characterization 

of his actions as “swinging hard.” She described symptoms of pain, numbness, 

headaches, double vision and blurriness in her left eye. The CAT scan ordered by the 

emergency room physician showed what he described in testimony as a “tripod 

fracture,” involving fractures to three bones near the eye. The physician told the jury 

that type of facial injury is a serious injury carrying risk of loss of vision through rupture 

or dislocation of the eye. He agreed that such loss of vision could be a protracted loss 

or impairment of the function of a bodily member or organ. The physician and a 

Lubbock police officer both agreed with the prosecutor that a hand used in the manner it 

was here could be a deadly weapon, capable of causing serious bodily injury. See 

Tucker, 274 S.W.3d at 692 (police officer as expert witness with respect to deadly 

weapon). 

We find the evidence that during his assault of his girlfriend appellant used his 

hand in a manner capable of causing serious bodily injury to her was not too weak to 

support the jury’s deadly weapon finding. Appellant points to evidence she never had 

 4 Compare Purdy v. State, No. 07-09-00058-CR, 2010 Tex.App. LEXIS 4955 

(Tex.App.—Amarillo June 29, 2010, no pet.) (evidence insufficient for deadly weapon 

finding as there was no description of injuries to the victim and knife was not entered 

into evidence and was inadequately described). 
5 

surgery to repair the fractures and that at the time of trial she had not experienced any 

of the more serious potential consequences of her injuries.5

 As the Court of Criminal 

Appeals noted in Tucker, the finding a defendant used a deadly weapon is not 

precluded simply because the victim is fortunate enough not to suffer the full range of 

potential consequences. The question is appellant’s use of his hand in a manner 

capable of causing serious bodily injury. 274 S.W.3d at 692. The evidence to which 

appellant points does not render the jury’s verdict against the great weight and 

preponderance of the evidence. Laster, 275 S.W.3d at 518. We find the evidence 

factually sufficient to support the jury’s verdict, overrule appellant=s sole issue on appeal 

and affirm the judgment of the trial court. 

 James T. Campbell 

 Justice 

Publish. 

 5 The States notes, however, the victim’s testimony that pain in her left eye 

“comes and goes,” and her testimony she did not return to the plastic surgeon for the 

recommended surgery because she had no insurance.