NO. 03-14-00654-CR

IN THE COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

__________________________________________________________________

NO. D1-DC-14-904021

IN THE 427TH DISTRICT COURT

OF TRAVIS COUNTY, TEXAS

__________________________________________________________________

JAMES PALACIO,

APPELLANT

V.

STATE OF TEXAS,

APPELLEE

__________________________________________________________________

APPELLANT’S BRIEF

__________________________________________________________________

ORAL ARGUMENT REQUESTED

LINDA ICENHAUER-RAMIREZ

ATTORNEY AT LAW

1103 NUECES

AUSTIN, TEXAS 78701

TELEPHONE: 512-477-7991 FACSIMILE 512-477-3580

EMAIL: LJIR@AOL.COM

SBN: 10382944

 ATTORNEY FOR APPELLANT 

ACCEPTED

03-14-00654-CR

6140740

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/20/2015 3:29:52 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/20/2015 3:29:52 PM JEFFREY D. KYLE Clerk
2

TABLE OF CONTENTS

 PAGE

Parties to Trial Court’s Final Judgment......................................................3

Index of Authorities....................................................................................4

Statement of the Nature of the Case ...........................................................5

Statement of the Point of Error...................................................................7

Statement of Facts.......................................................................................8

Summary of the Argument .........................................................................22

Point of Error Number One ........................................................................23

Prayer for Relief .........................................................................................32

Certificate of Compliance...........................................................................32

Certificate of Service ..................................................................................33
3

PARTIES TO TRIAL COURT’S FINAL JUDGMENT

 In accordance with Tex.R.App.Proc. 38.1(a), Appellant certifies 

that the following is a complete list of the parties and their counsel:

 (a) the State of Texas represented by:

Ms. Kelly A. Gier, Assistant District Attorney 

Travis County District Attorney’s Office

P.O. Box 1748

Austin, Texas 78767

Mr. Efrain De La Fuente, Assistant District Attorney

Travis County District Attorney’s Office

P.O. Box 1748 

Austin, Texas 78767 

 (b) Mr. James Palacios represented by:

Mr. Leonard Martinez – trial attorney

Attorney at Law 

812 San Antonio, Suite 104

Austin, Texas 78701

Mr. Brad Urrutia – trial attorney

Attorney at Law

P.O. Box 252

Manchaca, Texas 78652

Mr. Richard Estrada – trial attorney

Attorney at Law

1501 Newfield Lane

Austin, Texas 78703

Ms. Linda Icenhauer-Ramirez - appellate attorney

Attorney at Law

1103 Nueces

Austin, Texas 78701
4

INDEX OF AUTHORITIES

CASES PAGE

Brooks v. State, 323 S.W.3d 893 (Tex.Cr.App. 2010)...............................25

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

 (1979)................................................................................................25

Thomas v. State, 875 S.W.2d 774 (Tex.App.-Beaumont 1994, pet.

 ref.)....................................................................................................24

Villarreal v. State, 716 S.W.2d 651 (Tex.App.-Corpus Christi 1986,

 no pet.)..............................................................................................31

STATUTES

V.T.C.A. Penal Code, Sec. 1.07(a)(17) ......................................................24

V.T.C.A. Penal Code, Sec. 1.07(a)(17)(B).......................................... 24, 28

 

V.T.C.A. Penal Code, Sec. 1.07(a)(46) ......................................................24

V.T.C.A. Penal Code, Sec. 22.01(a)(1) ......................................................23

V.T.C.A. Penal Code, Sec. 22.02(a)(2) ..................................................8, 23

COURT RULES

Tex.R.App.Proc. 38.1(a).............................................................................3
5

TO THE HONORABLE JUDGES OF SAID COURT:

COMES NOW James Palacios, appellant in this cause, by and through 

his attorney and files this his brief on original appeal.

STATEMENT OF THE NATURE OF THE CASE

 Appellant was charged by indictment in this cause on May 15, 2014. 

The indictment alleged that appellant committed the offense of aggravated 

assault (family violence) with a deadly weapon. It also contained one 

enhancement allegation alleging that appellant had a prior felony conviction 

for burglary of a habitation. (C.R. 5-6) Jury selection occurred on 

September 22, 2014. (R.R. VI, pp. 4-231) On that same day, appellant

entered a plea of not guilty. (R.R. VI, pp. 238-239) On September 25, 

2014, after hearing the evidence and the argument from counsel, the jury 

deliberated and returned a verdict of guilty of the offense of aggravated 

assault. (R.R. IX, pp. 5-6; C.R. 141-147) On September 26, 2014, after 

hearing the evidence and argument from counsel, the jury found the 

enhancement allegation to be true and assessed appellant’s punishment at 

thirty (30) years imprisonment. (R.R. X, pp. 148-149 C.R. 151-153) 

Appellant was sentenced that day. (R.R. X, pp. 150-151; C.R. 158-159) 

A motion for new trial was filed by trial counsel on September 26, 2014.

1

 

 1

 Trial counsel also filed a pleading entitled “Motion for New Trial and Motion in Arrest 
6

(C.R. 149) Notice of appeal was filed by trial counsel on September 26, 

2014.2 (C.R. 148) The trial court’s certification of defendant’s right to 

appeal was filed on September 26, 2014. (C.R. 157) 

 

of Judgment” on October 2, 2014. (C.R. 162-175)

2

 Appellate counsel also filed a notice of appeal on October 6, 2014. (C.R. 176-177)
7

STATEMENT OF THE POINT OF ERROR

POINT OF ERROR NUMBER ONE

THE EVIDENCE IS INSUFFICIENT TO SUPPORT 

APPELLANT’S CONVICTION FOR AGGRAVATED 

ASSAULT BECAUSE THERE WAS NO EVIDENCE THAT 

APPELLANT USED A DEADLY WEAPON.
8

STATEMENT OF FACTS

The indictment in this case alleged that appellant committed the 

offense of aggravated assault with a deadly weapon (family violence) and 

specifically alleged that appellant:

“on or about the 30th day of January, 2013, . . . , did then and 

there intentionally, knowingly, or recklessly cause bodily injury 

to Nicole McKee, a member of James Palacio’s family or 

household and with whom James Palacio had a dating 

relationship, by striking Nicole McKee with his hand, and by 

pushing Nicole McKee with his hand, and by grabbing Nicole 

McKee with his hand, and by grabbing Nicole with his arm, and 

by pushing Nicole McKee with his body, and by striking Nicole 

McKee with his body, and by causing Nicole McKee to fall to 

the ground, and James Palacio did then and there use or exhibit 

a deadly weapon, to-wit: a hand, an arm, a body, and the 

ground, which in the manner of its use or intended use was 

capable of causing death or serious bodily injury, during the 

commission of said offense, ” (C.R. 5-6) 

V.T.C.A. Penal Code, Sec. 22.02(a)(2). The indictment also contained an 

enhancement allegation that appellant had a prior felony conviction of 

burglary of a habitation. (C.R. 5-6)

The evidence showed that emergency personnel were dispatched to a 

trailer home in Mustang Ridge, Texas around 1:41 p.m. on January 30, 2013. 

They found the complainant Nicole McKee unconscious and in cardiac 

arrest. The first responders performed CPR on the complainant and 

initiated other life saving measures. When they detected a pulse, they 
9

stabilized her and transported her to a hospital in Austin. The first 

responders noticed that the complainant had numerous black and blue 

bruises all over her entire body. (R.R. VI, pp. 248-267)

Appellant was trying to administer CPR to the complainant when the 

first responders arrived. After the complainant was taken to the hospital, 

appellant was asked by law enforcement if he would be willing to give a 

voluntary statement to detectives with the Travis County Sheriff’s office. 

Appellant agreed and was given a courtesy ride to the sheriff’s office by a 

Mustang Ridge police officer. (R.R. II, pp. 7-12) When appellant 

arrived at the sheriff’s office, he was told by Detective Jim Anderson that he 

was not under arrest and that he was free to leave at any time. Appellant 

agreed to talk to the detective and gave a lengthy interview to Detective 

Anderson and Detective Alan Howard, which was recorded and introduced 

into evidence at the trial as State’s Exhibits 5 and 6. (R.R. VII, 30-34) 

Appellant told the detectives that he had been in a relationship with the 

complainant for several years and that they had a daughter together. He 

told the detectives that the complainant was a heroin addict and that she had 

come to his home three days earlier (Monday). Initially, appellant told the 

detectives that the complainant had had bruises on her when she arrived at 

the house on Monday. Appellant also told the detectives that he never 
10

assaulted the complainant but that he had restrained her by grabbing her 

wrists and shoulders when she tried to leave in order to go get more heroin. 

When the detectives asked appellant about how the complainant received 

some of the bruises, he told them that the bruises on the front of her legs 

occurred when she fell outside on the gravel in the driveway. He said she 

got a bruise on her forehead when she passed out and fell. He said that 

the bruises on her chest occurred when he tried to restrain her. Appellant 

told the detectives that he was unable to keep her from leaving the house and 

that she in fact left the house. As the interview progressed, appellant 

began changing portions of his story. He admitted to the detectives that 

when the complainant had arrived at his home on Monday, she did not have 

any bruises. He admitted that at one point when the complainant was 

kicking and screaming and he was trying to restrain her, she fell down and 

he fell on top of her. Appellant told the detectives that he was 6’4” and 

weighed approximately 198 lbs. He repeatedly told the detectives that he 

never hit the complainant but he admitted that he might have held her too 

tight. He did say that at one point they were fighting over a knife and the 

complainant cut herself on her fingers. When the detectives asked about 

the multiple bruises on the back of the complainant’s legs, he told them 

when he was trying to get her into the shower, she fell and landed on the 
11

metal shower door railings. He also changed his story and admitted that 

the complainant had stayed at the house all day Monday and Tuesday. 

Appellant told the detectives that in order to get the complainant off of 

heroin, he got morphine, narcan and promethazine pills from his 

grandmother and over the course of the three days, gave her a lot of pills. 

Appellant told the detectives that he had given the complainant ten narcan 

pills, ten morphine pills and ten promethazine pills on Monday, ten 

morphine pills and ten promethazine pills on Tuesday and ten more 

morphine pills and ten more promethazine pills on Wednesday. He also 

admitted to the detectives that he bought twelve grams of crystal

methamphetamine and had allowed the complainant to eat it over the course 

of two days. He told the detectives that he had flushed the remaining 

methamphetamine down the toilet before authorities arrived because he did 

not want to get arrested for drug possession. According to appellant, the 

complainant was in a lot of pain and she told him that she would overdose 

on heroin if he did not give her the other drugs. Appellant told the 

detectives that by the third day, the complainant was hallucinating. He 

insisted that he was just trying to help her get off heroin. (State’s Exhibits

5 and 6) (R.R. VII, pp. 39-40, 87-92) After the interview at the 

sheriff’s office concluded, the detectives asked appellant if they could go to 
12

his home and see where the complainant had been injured and speak to his 

mother. Appellant agreed. Everyone drove out to the trailer where 

appellant lived with his mother. While Detective Anderson spoke with 

appellant’s mother, Detective Howard had another conversation with 

appellant that he also recorded. (R.R. VII, pp. 45-46, 92-96) During 

this conversation, appellant showed the detectives the different areas of the 

house and yard where the complainant had been injured. This included the 

bathroom and outside the back door of the trailer. Appellant told the 

detective that at one point he and the complainant fell out of the back door 

way of the trailer. He said that he fell on top of the complainant and they 

ended up on the ground. He told the detectives that he felt that he broke 

something on the complainant when they hit the ground. When he fell 

down his elbow went up into her chest and he thought he felt her ribs move. 

He said that the complainant gasped and then began having trouble 

breathing. (State’s Exhibits 20B3) (R.R. VII, pp. 96-104; R.R. VIII, p. 

5-7)

Detective Anderson testified that a hand in the manner of its use could 

be capable of causing death or serious bodily injury. He also testified to 

 3

 The audio recording of Detective Howard’s conversation with appellant at the trailer 

was originally introduced as State’s Exhibits 20 and 20A. (R.R. VII, pp. 95-96) The 

State later consolidated State’s Exhibits 20 and 20A into State’s Exhibit 20B and 

substituted State’s Exhibit 20B for State’s Exhibits 20 and 20A. (R.R. VIII, pp. 5-7) 
13

the same thing with respect to an arm, a person’s body and the ground. 

(R.R. VII, pp. 60-61)

The State also brought in several witnesses who knew appellant and 

the complainant. Hector Rocha testified that he was an assistant manager 

at the Sonic Drive-In on William Cannon in Austin. He testified that the 

complainant worked there as a car-hop. On her last day of work on 

Sunday, January 27, 2013, the complainant came to work but seemed 

distracted. When she continued to be on her phone, he sent her home 

three hours into her shift. She never came back after that day. Rocha 

testified that the complainant did not look ill that day and seemed physically 

capable of performing her job duties. (R.R. VIII, pp. 9-19)

Dr. Satish Chundru from the Travis County Medical Examiner’s 

Office testified that he performed an autopsy on the complainant on January 

13, 2013. He testified that she was 5’3” tall and weighed 143 pounds. 

He told the jury that his external examination revealed that the complainant 

had quite a few bruises that seemed to be a day or two old. He found 

bruises on her midchest area that looked to be within a day or two old. He 

testified that they did not appear to have resulted from CPR being performed 

but it depended on how the CPR was done. (State’s Exhibits 35, 45 and 46)

(R.R. VIII, pp. 72-79, 82-83) He found bruising on the complainant’s 
14

right eyelid, which had resulted from marks higher up on her forehead. He 

also noted a light yellow bruise above her right eyelid and a yellowish bruise

on her forehead. He noted a faint red bruising on the left side of her face 

and he estimated that this was less than a few days old. (State’s Exhibits 

37, 38, 40, 41) (R.R. VIII, pp. 80-82) The doctor also pointed out a lot 

of bruising on the complainant’s arms and wrists, a bruise near her pubic 

area, a lot of bruising on the complainant’s left side, an abrasion and 

bruising on her posterior right shoulder, bruising on her hands, some cuts on 

her right hand, a fractured finger on her left hand, bruising on her knees and 

shins and bruising on the back of her thighs and calves. (State’s Exhibits 

43, 44, 49, 50, 51, 53, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 

69, 70, 71) (R.R. VIII, p. 82-90) An internal exam revealed that the 

complainant had suffered multiple fractures of her ribs on both sides of her 

body. The doctor testified that the rib fractures on the left side of the 

complainant’s body corresponded with the bruises found on the exterior part 

of her body. He also testified that although CPR could have caused some 

of the rib fractures, it did not cause all of them. He described the fractures 

as pretty severe and told the jury that after her ribs had been fractured, the 

complainant would have had trouble breathing and would have been in a lot 

of pain. He also testified that cracked ribs could be life-threatening. 
15

(State’s Exhibits 74, 75, 76) (R.R. VIII, pp. 91-96, 110) Dr. Chundru 

told the jury that his exam showed that the complainant was suffering from 

acute pneumonia. He told the jury that pneumonia is typically caused by 

broken ribs, chronic obstructive pulmonary disease (COPD), cancer or some 

types of drugs (not heroin). He also testified that a toxicology report 

showed the presence of morphine, methamphetamine and promethazine but 

no indication of heroin. (R.R. VIII, pp. 97-102) He testified on 

cross-examination that none of the drugs found in the complainant’s system 

contributed to her death. (R.R. VIII, p. 106) He concluded his direct 

examination by testifying that the cause of the complainant’s death was 

complications of blunt force chest injuries. He testified that a deadly 

weapon is anything that in the manner of its use is capable of causing death 

or serious bodily injury. He further testified that if a person’s hands were 

used to get the decedent to the ground and caused the rib fractures, the hands 

could be considered a deadly weapon. Likewise if the arms were used or 

a body was used, a person’s arms or body could be a deadly weapon. 

Finally he testified that the ground could be a deadly weapon if a decedent 

impacted with the ground and was injured by that impact. (R.R. VIII, pp. 

104-105) 

The jury heard argument from both sides, deliberated and then 
16

announced its verdict. The jury found appellant guilty of the offense of 

aggravated assault.

4

 (R.R. IX, pp. 5-7; C.R. 141-147) 

Appellant elected to go to the jury for punishment. Appellant 

entered a plea of true to the enhancement allegation. (R.R. IX, pp. 11-12) 

The State brought forward three witnesses who actually lived with appellant 

and the complainant in a trailer in Oak Hill for a time. Patrick Thole, 

testified that he and his wife rented a room in the trailer five years earlier

and appellant and the complainant also rented out a room in the trailer. 

Thole also was a coworker of both appellant and the complainant at Sonic. 

Thole testified that he witnessed appellant physically abusing the 

complainant both at work and at home. He described seeing appellant 

backhand the complainant, lock the complainant in their room, shove her to 

the ground and drag her around by her hair. He told the jury that appellant 

was constantly verbally abusive to the complainant. Thole testified that 

he wanted to intervene but the complainant continuously begged him not to. 

He also told the jury that he saw appellant steal money from the 

complainant’s purse and he said he saw appellant use crack almost daily. 

(R.R. IX, pp. 13-24) On cross-examination, Thole admitted that he had 

 4

 Before the charge was submitted to the jury, the State abandoned the language in the 

indictment regarding a family or dating relationship between appellant and the 

complainant. (R.R. VIII, p. 163) 
17

pulled a gun on appellant twice, once when appellant broke into his room 

and another time when appellant had head-butted him. Thole also 

admitted that he had pulled a knife on appellant one time. This occurred 

when appellant was coming after him. Thole also told the jury that 

despite witnessing all this violence by appellant, he never called the police 

because the complainant asked him not to. (R.R. IX, pp. 24-30)

Thole’s wife Michelle also testified about the physical abuse she 

witnessed by appellant against the complainant. She described witnessing 

the same kind of abuse as her husband had testified about. She told the 

jury that she had seen the complainant with a black eye and bruises on her 

back and upper arms. She also testified that appellant had assaulted her 

when she tried to intervene in an argument between appellant and her 

husband. She told the jury that appellant grabbed both of her wrists, 

pushed her all the way down in the hallway and then pushed her to the floor 

inside her room. Then appellant closed and locked the door. Michelle 

told the jury that she had to crawl out of a window in order to get out of her 

room. She also admitted on cross-examination that she never reported 

appellant’s conduct to police because the complainant did not want her to. 

(R.R. IX, pp. 30-52)

Dean Johnson, a longtime friend of the complainant’s, also lived in 
18

the trailer in Oak Hill. He also witnessed the physical and verbal abuse of 

the complainant by appellant. Johnson testified that on one occasion, 

when he tried to intervene, appellant headbutted him and knocked him to the 

floor. He told the jury that he ended up with two black eyes. He told the 

jury that he saw the complainant with bruises on her arms, her face and her 

neck. (R.R. IX, pp. 63-80) Johnson testified that on one occasion, he 

did call the police on appellant. When appellant got out of jail a few days 

later, appellant came to Johnson’s door and kicked the door in and 

threatened to kill Johnson if he ever called the police on appellant again. 

(R.R. IX, p. 86) 

Gabriel Loera, a coworker of both appellant and the complainant at 

Sonic, also told the jury that he witnessed appellant being both verbally and 

physically abusive to the complainant. (R.R. IX, pp. 55-60)

The State also introduced evidence that appellant was in possession of 

a .22 caliber semi-automatic rifle that had been sawed off at the handle. 

(State’s Exhibit 81) This was in spite of the fact that as a felon, appellant 

was prohibited from being in possession of firearms. Det. Jim Anderson 

testified that appellant told him that he had fired it once in his backyard 

when he was arguing with the complainant. (R.R. IX, pp. 88-92) Det. 

Anderson also testified that when he arrested appellant for the aggravated 
19

assault of the complainant on February 22, 2013, appellant had 

methamphetamine in his pocket. (R.R. IX, p. 96)

The State also introduced evidence that appellant had been 

investigated in 2006 for hitting another woman, Maria Ortiz, who at the time 

was holding their child – Child Protective Services ended up 

removing the child and placing him in the custody of appellant’s mother. 

From that point on appellant was not allowed to have unsupervised contact 

with his son. The evidence also showed that authorities were concerned 

about the couple’s drug use – xanax. (R.R. X, pp. 7-12)

The State also introduced evidence of appellant’s extensive juvenile 

record. The evidence showed that appellant was adjudicated for assault 

with injury and was placed on intensive supervision probation. That 

probation was later modified and appellant was committed to the custody of 

the Texas Youth Commission on the basis of adjudications for assault and 

burglary of a habitation. (R.R. X, pp. 13-15, 23-24) On cross, it was 

shown that appellant was thirteen when he was adjudicated. It was also 

shown that as a child appellant was placed in the state hospital for emotional 

and mental health issues. He was diagnosed with conduct disorder. 

(R.R. X, pp. 24-29)

The mother of another of appellant’s children, Christina Mendez, 
20

testified that she met appellant as a pen pal in 2007 when he was in jail. 

When appellant got out of jail, they continued their relationship. Mendez 

testified that together they had a daughter who was six years 

old at the time of appellant’s trial. Mendez testified that she lived with 

appellant’s grandmother but that appellant was only there for a few hours 

everyday. She told the jury that appellant would push her around and grab 

her but he never hit her. Mendez testified that she was in a relationship 

with appellant for three years. (R.R. X, pp. 39-45) The State rested 

after Mendez’s testimony. (R.R. X, p. 93)

During the defense case, several of appellant’s aunts testified and told 

the jury about appellant’s upbringing. Isabel Barron told the jury that 

appellant’s mother, was fourteen years old when she had 

appellant. Appellant’s father was an older man who had no involvement in 

appellant’s life. Barron described appellant as being hyper and suffering 

from ADD or ADHD as a child. (R.R. X, pp. 97-100) Lira Mickelson, 

another of appellant’s aunts testified that their family was very poor and that 

there was a lot of physical, verbal and sexual abuse in the home. She 

testified that her mother would sell appellant’s mother, , to men on a 

regular basis beginning when was fourteen until left the house 

at around eighteen years of age. Mickelson testified that appellant did not 
21

function normally as a child – either physically or mentally. When he was 

around seven or eight years old, appellant was committed to the Austin State 

Hospital and stayed there for approximately one year. After that he was 

in and out of various institutions. (R.R. X, pp. 103-110) Another aunt, 

Suzie Grossman, also testified about the sexual abuse, emotional abuse, 

mental and physical abuse that went on in their mother’s home. She too 

told the jury that appellant’s grandmother sold appellant’s mother for sex 

and that appellant’s mother got pregnant with appellant when she was 

fourteen. And she also testified that appellant was put in the Austin State 

Hospital at a very young age. (R.R. X, pp. 116-120) After the aunts 

testified, the defense rested and both sides closed. (R.R. X, p. 122)

After hearing the argument of counsel from both sides, the jury 

found the enhancement allegation to be true and assessed appellant’s 

punishment at thirty (30) years imprisonment. (R.R. X, pp. 148-149; C.R.

151-153)
22

SUMMARY OF THE ARGUMENT

In his sole point of error, appellant argues that the evidence is 

insufficient to show that appellant used or exhibited a deadly weapon during 

the commission of this offense. The indictment alleged that appellant 

caused bodily injury to the complainant and used or exhibited “a deadly 

weapon, to wit a hand, an arm, a body, and the ground, which in the manner 

of its use or intended use was capable of causing death or serious bodily 

injury.” (C.R. 5-6) The State failed to produce affirmative evidence that 

appellant’s hand, arm or body or the ground was used as a deadly weapon in 

this case. Dr. Chundru, the medical examiner, testified that the cause of 

death was “complications of blunt force chest injuries” but never specified 

what those complications were or that a deadly weapon played a part in 

either the complications or the complainant’s injuries. Dr. Chundru never 

testified that any of the complainant’s injuries constituted serious bodily 

injury. When asked if hands, arms, body could be a deadly weapon, he 

answered that they could be if any of those things were used to get the 

decedent to the ground and caused rib fractures. He also testified that the 

ground could be a deadly weapon if the injuries were caused by the ground 

and there was an impact in getting the decent to lay on the ground. All of 

his answers were conditional and not based on the evidence in the case. 
23

POINT OF ERROR NUMBER ONE

THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S 

CONVICTION FOR AGGRAVATED ASSAULT BECAUSE THERE 

WAS NO EVIDENCE THAT APPELLANT USED A DEADLY 

WEAPON.

Appellant incorporates the Statement of Facts set out earlier in this 

brief. Appellant was alleged to have committed the offense of aggravated 

assault by intentionally, knowingly, or recklessly causing bodily injury to 

the complainant and using or exhibiting a deadly weapon during the assault. 

V.T.C.A. Penal Code, Sec. 22.01(a)(1); V.T.C.A. Penal Code, Sec. 

22.02(a)(2).

The indictment alleged that appellant:

“on or about the 30th day of January, 2013, . . . , did then and 

there intentionally, knowingly, or recklessly cause bodily injury 

to Nicole McKee, a member of James Palacio’s family or 

household and with whom James Palacio had a dating 

relationship, by striking Nicole McKee with his hand, and by 

pushing Nicole McKee with his hand, and by grabbing Nicole 

McKee with his hand, and by grabbing Nicole with his arm, and 

by pushing Nicole McKee with his body, and by striking Nicole 

McKee with his body, and by causing Nicole McKee to fall to 

the ground, and James Palacio did then and there use or exhibit 

a deadly weapon, to-wit: a hand, an arm, a body, and the 

ground, which in the manner of its use or intended use was 

capable of causing death or serious bodily injury, during the 

commission of said offense, ” (C.R. 5-6)

It was encumbant upon the State to prove beyond a reasonable doubt

that either appellant’s hand, his arm, his body and/or the ground was a 
24

deadly weapon. Appellant asserts that the State failed to present sufficient 

evidence that appellant’s hand, his arm, his body, or the ground was, in the 

manner of its use or intended use, capable of causing serious bodily injury or 

death. 

A deadly weapon is anything that in the manner of its use or intended 

use is capable of causing death or serious bodily injury. V.T.C.A. Penal 

Code, Sec. 1.07(a)(17)(B). A person’s hand, or arm or his body is not 

manifestly designed to inflict serious bodily injury or death. Nor is the 

ground. See V.T.C.A. Penal Code, Sec. 1.07(a)(17). The State therefore 

was required to prove that appellant’s hand, his arm, his body, or the ground

in the manner of its use or intended use, was capable of causing death or 

serious bodily injury. See Thomas v. State, 875 S.W.2d 774, 778 

(Tex.App.-Beaumont 1994, pet. ref.) "Serious bodily injury" is "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." V.T.C.A. Penal Code, Sec. 1.07(a)(46).

In determining whether the evidence is legally sufficient to support a 

deadly weapon finding, the appellate court must review all the evidence in 

the light most favorable to the jury's verdict to determine whether any 

rational jury could have found the essential elements of aggravated assault 
25

with a deadly weapon beyond a reasonable doubt. Brooks v. State, 323 

S.W.3d 893, 899 (Tex.Cr.App. 2010)(citing Jackson v. Virginia, 443 U.S. 

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). 

The evidence showed that when first responders arrived at appellant’s 

residence, they found the complainant unconscious and in cardiac arrest. 

Steven Schiller, a City of Austin paramedic, testified that upon examining 

the complainant, he noticed that she had numerous deep, black-and-blue 

bruises all over her body. (R.R. VI, pp. 248-267) After the complainant 

was transported to the hospital, appellant agreed to talk with Travis County 

Sheriff detectives Jim Anderson and Alan Howard at the Travis County 

Sheriff’s Office. (R.R. VII, pp. 29-34) Initially appellant told the 

detectives that the complainant, who was his girlfriend and the mother of 

one of his children, had arrived at his home three days earlier and she was 

already bruised. However, later in the interview he admitted that she had 

no bruises on her when she arrived at his house. He admitted grabbing the 

complainant by her wrists and shoulders in an effort to restrain her to keep 

her from leaving and getting more heroin (she was a heroin addict.) 

Appellant told the detectives that the bruises on her forehead were caused 

when she passed out and fell. Appellant told the detectives that the bruises 

on her chest occurred when he tried to restrain her. He also told the 
26

detectives that at one point while they were struggling, he “bear-hugged” her 

and they both fell down to the ground and he fell on top of her. He told the 

detectives that he might have held her too tight but he insisted that he never 

struck her. (State’s Exhibit 5) (R.R. VII, pp. 34-40, 81-82, 87-92) After 

the interview at the sheriff’s office was concluded, the detectives 

accompanied appellant to his home and he showed them where the events of 

the previous three days had occurred. As appellant showed them the area

by the back door of the trailer house, he recounted how he had been 

struggling with the complainant when they both fell from the doorway of the 

trailer to the ground and he landed on top of her. Appellant told Detective 

Howard that when he fell on top of the complainant, his elbow went up into 

her chest and appellant said it felt like her ribs moved. Appellant said that 

it was after this fall that the complainant gasped and began having trouble 

breathing. (State’s Exhibit 20B) (R.R. VII, pp. 92-101; R.R. VIII, pp. 

5-7)

At trial, Det. Anderson was asked about deadly weapons. In 

response to questioning by the State, he testified that based on his training 

and experience, a hand or an arm, or a body and even the ground, can, in the 

manner of their use be capable of causing death or serious bodily injury. 

(R.R. VII, pp. 60-61) On cross-examination, Det. Anderson admitted that 
27

he did not know what caused the bruising on the complainant’s arm – arm, 

hand or ground. He also did not know what caused the injuries to the 

complainant’s head, nor did he know what caused the injuries to the 

complainant’s legs. In fact, he admitted that he did not know how any of 

the complainant’s injuries were caused. (R.R. VII, pp. 71-72)

The evidence showed that the complainant passed away shortly after 

being taken to the hospital. Dr. Chundru, the medical examiner who 

performed the autopsy on the complainant, testified that the complainant had 

recent bruising all over her body. An internal exam revealed that the 

complainant had rib fractures on both sides of her body. Specifically, there 

were rib fractures on the left side on rib # 2, 3, 4, 5, 6, 7, 8, 9 and 10 and rib 

#7 had multiple fractures. The doctor testified that the rib fractures on the 

victim’s left side corresponded with the bruising he found on the exterior of 

the complainant’s body. On the right side, Dr. Chundru found rib fractures 

on rib # 2, 3 4, 5, 6, 7, 8, and 9. Dr. Chundru testified that some of the 

anterior rib fractures could have been caused by CPR but CPR would not 

have caused the posterior rib fractures. Dr. Chundru described the 

complainant’s rib fractures as “pretty severe.” And he testified that as a 

result of the rib fractures, the complainant probably had difficulty breathing 

and was in a lot of pain. (R.R. VIII, pp. 72-96) Dr. Chundru testified that 
28

his exam showed that the complainant was suffering from pneumonia. He 

testified that possible causes of pneumonia are broken ribs, chronic 

obstructive pulmonary disease (COPD), cancer, and some drugs like xanex 

and morphine (but not heroin.) He also testified that a toxicology report 

showed the presence of morphine, methamphetamine and promethazine in 

the complainant’s blood. Dr. Chundru testified that he found the cause of 

the complainant’s death to be complications of blunt force chest injuries. 

(R.R. VIII, pp. 97-104) When asked about the definition of a deadly 

weapon, Dr. Chundru testified that anything in the manner of its use that is 

capable of causing death or serious bodily injury is a deadly weapon. He 

went onto testify that if hands were used to get the decedent to the ground 

and caused rib fractures, the hands would be a deadly weapon. He also 

testified that the same could be true of arms or a body. He also testified 

that the ground could be a deadly weapon if the injuries were caused by the 

ground and there was an impact in getting the decedent to lay on the ground. 

(R.R. VIII, pp. 104-105) The State produced no other evidence on the 

issue of a deadly weapon. 

As noted above a deadly weapon is anything that in the manner of its 

use or intended use is capable of causing death or serious bodily injury. 

V.T.C.A. Penal Code, Sec. 1.07(a)(17)(B). Applying that definition to the 
29

facts adduced by the State during appellant’s trial, it is clear that the State’s 

evidence is lacking.

There was no evidence that appellant’s hand, his arm, his body, or the 

ground caused the complainant’s death. Dr. Chundru, the medical 

examiner testified that the cause of the complainant’s death was not the 

blunt force injuries themselves. Rather the doctor testified:

“A. So the cause of death was complications of blunt 

force chest injuries.” (R.R. VIII, pp. 104) (emphasis added)

After the doctor answered that question, the State never asked the doctor 

what the complications were and if those complications were caused by 

appellant’s hand, his arm, his body or the ground. Earlier the doctor had 

noted that the complainant was suffering from acute pneumonia at the time 

of her death but he never affirmatively testified that the pneumonia was the 

complication he was referring to, nor did he affirmatively testify that the 

complainant’s pneumonia was a result of the rib fractures. In fact, in 

response to the State’s questioning, he testified that there could be many 

things that cause pneumonia including drugs like morphine which was found 

in the complainant’s body and which appellant told the detectives he had 

given to her.

“Q. Are there other causes of pneumonia other than 

broken ribs?
30

“A. Yes.

“Q. What are the other causes of that?

“A. Well, some of the natural causes, anyone that 

smokes a lot or has what we call COPD, chronic obstructive 

pulmonary disease, they’re predisposed to pneumonia. 

People with cancer, that can obstruct some of the lung, which

can cause pneumonia. Sometimes drugs can cause 

pneumonia.

“Q. What kind of drugs would cause pneumonia?

“A. Typically what we’re talking about is respiratory 

depressant drugs like Xanax, opioids like Morphine things like 

that.” (R.R. VIII, p. 99)

Dr. Chundru went on to testify that a toxicology report done on the 

complainant showed that at the time of her death she had morphine, 

methamphetamine and promethazine in her body. (R.R. VIII, p. 102) 

Likewise there was no evidence that any of the injuries suffered by the 

complainant (including the rib fractures) would be considered “serious 

bodily injury.” The State never asked the doctor if the complainant’s 

injuries could be considered “serious bodily injury.” The closest the 

doctor came to labeling the degree of the complainant’s injuries was when 

he was asked the following:

“Q. And in looking at the pictures and having 

performed the autopsy on Ms. McKee, on a scale of one to 10 

how would you rate the severity of her injuries?

“A. She has quite a few rib fractures and so those are 
31

pretty severe.” (R.R. VIII, p. 96) (emphasis added)

Dr. Chundru never classified any of the injuries suffered by the complainant 

as “serious bodily injury.” And the State adduced no other evidence to 

show that any of the injuries suffered by the complainant would be 

considered to be serious bodily injury. Accord Villarreal v. State, 716 

S.W.2d 651 (Tex.App.-Corpus Christi 1986, no pet.)(where evidence 

insufficient to show that rib fractures constituted either a substantial risk of 

death or serious bodily injury.)

Here, the State failed to adduce evidence that appellant’s hand, 

his arm, his body, or the ground was, in the manner of its actual use or 

intended use, capable of causing serious bodily injury or death. This point 

of error should be sustained. 

 
32

. 

PRAYER

Appellant respectfully requests that this Honorable Court sustain his 

point of error and reverse the trial court and enter an order of acquittal.

Respectfully submitted,

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ

 Attorney at Law

1103 Nueces

Austin, Texas 78701

(512) 477-7991

FAX: (512) 477-3580

SBN: 10382944

Email: ljir@aol.com

ATTORNEY FOR APPELLANT 

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief was computer generated and contains 

6,438 words, as calculated by the word count function on my computer.

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ
33

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Brief on 

Original Appeal was served by e-service to the Travis County District 

Attorney’s Office on this the 20th day of July, 2015.

/s/ Linda Icenhauer-Ramirez 

 LINDA ICENHAUER-RAMIREZ