## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00109

- CR

CARLOS ROMEO CRAIG , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 22F0161

- 102

- A

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice Rambin2 

### ME MORANDUM OPINION
Car los Romeo Craig appeals his conviction for aggravated assault upon a person with whom Craig had a family, household, or dating relationship. 1 Craig argues th at the evidence did not support the jury’s conclusion that he used or exhibited a motor vehicle as a deadly weapon in
the c ourse of assaulting his girlfriend. Upon review of the record and applicable law, we find
that the evidence support s the jury ’s ve rdict. We note an error in the trial court’s judgment, though , and will modify that judgment. As modified, we affirm t he trial court’s jud gment

. I. Background Facts In the early morning hours of July 11, 2020 , Craig and his girl friend , Shir le y , 2 r esumed

a n argument they had had a few hours earlier. Shirley was driving her car with Crai g in the passenger seat , and Craig began punching S hirley over and over. Shirley stopped the car and got
out

. Craig pursued her, resumed beating her , then “ch u n k [e d]” her into the passenger compartment of the car

. Craig then drove the car while continuing to punch Shirley , and he
threatened to kill her

. Shirley was able to open the passenger door. She tried to “roll out of the car” but was c aug ht by one o f t he ti re s and was dragged down the road. Craig accelerated , “mashing the gas and going even f aster,” according to Shirley. She said Craig accelerated while she “was being hung out of the car. Like the minute [ sh e] open [ed] up the door and [her] b ody

1 See T EX
. P ENAL C ODE A NN
. § 22.02 (a)(2) ( S upp. )

. The indictment alleged that Craig caused bo di ly injury to Shirley , someone with whom he had a dating or family relationship , and that he used or exhibited a deadly w eapon , a motor vehicle, in the commission of the assault.

2 The complainant, Cr a i g’s gi rlfrien d , requested the use of a pseudonym during the prosecution a nd trial. We use that pseudonym in this opinion. See T EX
. C ODE C RI M
. P ROC

. A NN
. art. 58 .202 (Supp.).3

[wa] s out side of the car he mashed the gas. ” H er foot was caught by the tire, then she fel l away from the car to the ground. Shirley suffered a fracture in her foot. At trial , t he State intro duced a photo of her injury

. It shows Sh irley’s leg f

r om the kne e do w n. The photo is a little blurry , but i t shows a significant
avulsion with several layers of tissue falling away from the wound , which roughly extends from her instep to her heel. Above th at wound is a large abrasion, extending beyond her ankle . The n
at the top of tha t abrasion is another deep laceration or av ulsion revealing more bloody tissue. A t the back of her big toe, on the inside of her foot, is another tear or avul s ion, perhaps the size of a
dime or n i c kel. Officer Clint Akin saw Shirley in the hospita l after Craig dragged her down the road. He described her foot as “mangled.” He testifi ed , “To this day I have not forgotten what
that foot looked like, it was
- - it was bad. It was a reall y na s ty injury.” More than two years after the e vent, S hirley said she had pain and sometimes swelling in
her foot whenever the weather was cold or rainy

. S he continued to have “ issues with [her] foot , [her] leg, and [her] bac k ” since t he inc ident. 3
Texar kana Police Officer Clint Akin found the car ab ando n ed and still running in the neigh borhood where Shirley was found. He testified that there were “definite signs of a very
violen t struggle

. . . all over the vehicle,” i n cluding blood s pots and “what looked to be flesh . . . a chunk of something” in o ne of the wheel wells. There was blood spatter on one of the rear
fenders and wheels. Officer Jarod Dean also described s eeing “what looked lik e tissue between
th e tire and the w heel well, on the wheel w ell itself.”

3 She also suffered intermittent headaches that she attributed to Craig’s repea t e d pu nc hing. She suffered a broken nose , bu t there was no te stimony whether that was from t he punching or being dragged down the road by th e c ar.4

II. Vehicle as a Deadly Weapon
A. Standard o f R ev iew
In his sole point of error , Craig claims that the evidence does not prove he used or
exhibited a motor vehicle a s a deadly weapon. We do not agree.
“I n evaluating legal sufficiency, we revi ew all the evidence in the light most favorable to
the trial cou rt’s ju dgment to de termine whether any rational jury could have found the essential elements of the offense beyon d a reasonable doubt.” Williamson v. St at e , 589 S.W.3d 29 2, 297 (Tex. App.

— Tex arkana 2019 , pet. ref’d) (citing Brooks v. State , 323 S .W.3d 893, 912 (T ex. Crim. Ap p. 2010) (plurality op

. ) . “Our rigorous [ legal sufficiency ] review focuses on the quality of the evidence pres ented .” Id. (citing Br oo ks , 323 S.W.3d at 917

– 18 (Cochran , J. , concurring)). “We examine legal sufficiency under t he di recti on of the Brooks op inion , while giving deference to the responsibility of the jury ‘to fairly resolve conflicts in testimony, to w eigh the evidence,
and to draw reasonable inferences from basi c facts to ultimate facts. ’ ” Id. (quoting Hooper v.
S tate , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)).

“ [ A ] motor vehicle is not a deadly weapon per se . ” C outhern v. State , 57 1 S.W.3d 786 , 7 89 ( T ex. Crim. App. 20 1 9 ). “ A motor vehicle may be a deadl y we apon where ‘ the vehicle was intentionally, recklessly or ne glige ntly used as a weap on by the accused. ’ ” Nguyen v. State , 506
S.W.3d 69, 76 (Tex. App.

— Texarkana 2016 , pet. ref’d) ( quoting Engli sh v. State , 828 S.W.2d
33 , 38 (Tex. App.

— Tyler 1991, pet. ref ’ d) )

. “ A m otor vehicle, in the manner of its use or
in tende d use , is clearly cap abl e of causing death or serious bodily injury and therefore can be a deadly weapon
. ” Ex parte McKithan , 838 S.W. 2d 5 60 , 561 ( Tex. Crim. A pp. 1992) (per c uriam)5

(orig

. proce ed ing)

. In Dotson v. State , 1 46 S.W.3d 285, 300 (Tex. A pp.

— F ort W orth 2004, pet. ref ’d) , the defendant drove and swerved his recreational vehicle toward the victim, struck her,
and killed her. This supported a finding that the v ehicle was used as a deadly weap on. Id

. It is not required that someone be “ actu ally seriously hurt” by the use of the veh icle. Moore v. State , 520 S.W.3d 906 , 913 ( Tex. Crim. App. 20 17). It is sufficient that the evidenc e show ed someone was “actually, n ot s imply hypothetically, enda ngered.” Drichas v. State , 175 S.W .3d 795, 797 ( T ex. C rim. App. 2005 ) ; s ee Cates v. State , 102 S.W.3d 735, 738 ( Tex. Crim. App. 2003)

. “A deadly

- weapon finding is justified if a rational jury could have concluded t h at th e defendant ’ s vehicle pose d an actual danger of death or seriou s bodily injury.” Ng uyen v . S tate , 506 S.W.3d 69, 76 (Tex. App.

— Texarkana 2016, pet. ref’d) ( citing Sierra v. State , 280 S.W.3d 250, 254,
256

– 57 (Tex. Crim. A pp. 2009) )

. III. Analysis

In N guye n , the defend an t tr ied to rac e a motorcycle driver , follow ed very closely behind

t hat d river , and passed then pulled in front of the motorcycle driver and “jammed on the brakes , ” forcing the motorcycle to crash. Id

. I n findi ng that the evidence sup po rted the jury’s finding that Nguyen used his vehicle as a deadly weapon , we considered the e v i d en c e of Nguyen’s driving
and the in juries sustained by a victim. Id

. at 77

. In Morgan v. State , 775 S. W.2d 403 (Tex. App.

— Houston [14t h Dist.] 1 989 , no p et. ) , the
defendant was test

- driving a Porsche and tried to leave the car salesman behind. Id. at 405. The
salesman grabbed the back of the car and held on as Morgan “r aced out of the parking lot and on
to the feeder road. ” Id. Morga n drove a t high speeds and then sudde nly braked several times ,6

trying to force the salesman off the car. Id

. The re v iew in g cou rt found the evidence sufficient to
prove that Morgan “used the Porsche so that it was capable of causing death or serious bodil y injury.” Id

. at 40 7. Here, the evidence showed that Shirley tried to get out of the car because Craig continued
p u nchin g h er in h er face. Shirley was able to ext ricate her self from the m oving vehicle, only to be caught , then run over , by one of the ti res. While she was i n that precarious posi tion , Craig accelerated the car, putting her in further danger. She suffe r ed a b rok en bone in her foot , and two years after the incident , she continued to have recurring pain in th at foot. T he jury saw a
grueso me photograph of damage done t o her foot

. The car had blood on the exterior and some of what likely was Shirley’ s fle s h in the wh eel w ell. Two law enforcement officers descr ibed Shirley’s foot as “m angled.” The evidence is sufficient to support the jury ’s finding that C raig
used or exhibite d the car as a deadly weapon. 4 We overrule Craig’s point of error. IV. Modificatio n of J udgment Although not directly raised by the partie s, we obser ve that the judgment states Craig was
convicted of a first

- degree felony. Thi s is n ot correct. Th e indictment alleged that Craig caused

4 Craig directs us to Vasquez v. State , No. 13

- 06

- 00 586

- CR ( Tex. App.

— Corpus Christi June 26, 2008 , no pet. ) (mem. op., not designated for publication) , htt ps ://search.txcourts.gov/SearchMedia.aspx?MediaVersionID= c72d1b10

- 9871

- 4ba6

- 9933

- c20c 58291b52&coa = coa 13 & DT=Opinion&MediaID=8a9f1c 58

- cc9c

- 46cb

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- 6be94f 76ca83 (last visited May 22 , 2023)

. There, a troop e r s topped Vasquez ’s vehicle for speedin g
. In t he course of the traffic stop , Vasquez got back i n his vehicle and fled. T he trooper stood on the running bo ard of Vasquez’s vehicl e and grabbed the steering whe el. Id. at 2. Va s quez punche d the t rooper se v era l time s, accelerated, and shoved the t roop er off the running board and to the ground . The c ourt of a ppeals uphel d the jury’s fin ding that Vasquez used the vehicle as a deadly weapon. Id

. at 6

– 7. Crai g argues that , because there is no evi dence he pus h ed Shirle y off the moving vehicle , he d i d not u se the car as a deadly weapon. As explained a bo ve, use or exhibitio n of a vehicle a s a deadly weapon is a case

- specific dec ision. The circumstances in this case support a finding that Craig used the vehicle as a dead ly weapon.7

bodily injury to Shirley while using or exhibitin g a mo tor vehicle as a deadly weapon. That is a
second

- degree felony. Se e T EX
. P ENAL C ODE A NN
. § 22.02 (a)(2), (b) ( Supp

. )

. 5 Th e State did prove a pri or fel on y conviction that i ncreased the punishment range to that of a first

- degree felony , 6 but that di d n ot ch ange the de g ree level of the offense for which Craig was convicted.
See Ford v. State , 334 S.W.3d 230, 234

– 35 (Tex. Crim. App. 2011); Bledsoe v. State , 4 80 S.W.3d 638, 642 n.11 (Tex. App.

— Texarkana 2015, pet. ref ’ d). “This Court has the power to c o rr ect a nd modify t h e judgment of the trial court for accuracy wh en the nece ssary data and information are part of the record.” A nthony v. State , 531
S. W.3d 73 9, 743 (Tex. App.

— Te x arkana 2016, no pet.) (citing T EX
. R. A PP
. P. 43.2(b); Bigley v.
State , 865 S

. W.2d 26, 27 (Tex

. Crim. App. 1993); Asberry v. State , 813 S.W.2 d 526, 529 (Tex. App.

— Dallas 1991, pet. ref’d)). “The authority of an appellat e court t o reform incorrect judgmen t s is not dependent upon the request of any party, nor does it turn on the q u e s tion of
whether a party has or has not objected in the tri al co urt.” Id

. (quoting Asberry , 813 S.W.2d at
529

– 30).

5 Had the indictme n t all eg ed that Craig caused serious bodily injury to Shirl ey , the family / dat ing relationship b etween th e two (which Craig does not challenge and the jury aff irmatively found) would have made the o ffense a first

- degree felo ny. See T EX
. P ENAL C ODE A NN
. § 2 2

. 02 (b)(1).

6 See T EX
. P ENAL C ODE A NN
. § 12.42 (b). Craig was sentenced to life imprison ment.8

We , therefor e , m odify th e trial c ourt’s judgment to recite t h at Craig was convicted of aggravated assault with a deadly weapon under Secti o n 22.02 (a)(2) of the T exas Penal Code, a
second

- degree felony

. W e affirm the trial court ’ s judgmen t, as modified.

Jeff Rambin Justice
Date Submitted: April 4, 2 023 Date Decided: June 6 , 2023
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