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 fr om his conviction of the offense of aggravated assault with a deadly weapon 1 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 affi rm the judgment of the trial court.

1 See Tex. Penal Code Ann. ' 22.02(a)(2) (Vernon 2007). The indictment also included an enhancement paragr aph setting forth appellant = s previous final felony conviction. Appellant plead A true @ 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 admi nistered a beating to his girlfriend during an argument. Among her injuries, the mo st serious were fractures of bones in her face. The jury found appellant guilty of aggravated assault with a deadly weapon, and assessed punishment as not ed. 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 A too weak @ to support the factfinder = s verdict, or (2) considering conflicting evidence, the factfinder = s verdict is A against 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) (set ting forth same standard).

Under the variant of the offense of aggravated assaul t with which appellant was charged, his guilt required the State to pr ove: (1) he intentionally, knowingly or recklessly; (2) he caused bodily injury to t he 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 capabl e 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 re quired 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 t he injuries he inflicted on her constituted serious bodily injury. 3 Appellant’s argument is to the effect that t he victim’s injuries did not meet the definition of serious bodily injury. The Stat e, while not conceding that the victim’s injuries were less than serious bodily injury, poi nts out that its burden in this case simply was to prove that appellant used his hand s 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.

B Waco 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 dead ly weapons based on their manner of use or intended use and their capacity to pr oduce 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.

B Corpus 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 A Bodily injury @ means physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. ' 1.07(8) (Vernon 2003). A Serious 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 f unction of any bodily member or organ. Te x. Penal Code Ann. ' 1.07(46) (Vernon 2003).4 07-08-0148-CR, 2009 Tex. App. LEXIS 1781, at *7 (Tex.App.

B Amarillo Mar. 13, 2009, no pet.); Tucker, 274 S.W.3d at 691-92. 4

Testimony at trial showed appellant’s be ating left his girlfriend with a bloody nose, bruises on her arm and abrasions on her legs and back. Afte r he hit her in the face with his fist, she was brie fly unconscious. The record c ontains her characterization of his actions as “swinging hard.” S he described symptoms of pain, numbness, headaches, double vision and blurriness in her le ft 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 functi on of a bodily member or organ. The physician and a Lubbock police officer both agreed with the prosec utor 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 assaul t 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. Appe llant 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 injuri es to the victim and knife was not entered into evidence and was inadequately described).5 surgery to repair the fractures and that at t he time of trial she had not experienced any of the more serious potentia l 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 fort unate enough not to suffer the full range of potential consequences. The question is appell ant’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 ren der the jury’s verdict again st 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.