Opinion
No. 01-02-00984-CR
Opinion issued November 26, 2003. DO NOT PUBLISH. Tex.R.App.P. 47(b)(2).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 902566.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
MEMORANDUM OPINION
A jury convicted appellant, Rodolfo Vasquez, of aggravated assault and assessed punishment at 10 years' confinement. In three points of error, appellant contends that (1) there was legally insufficient evidence to prove that his hand was a deadly weapon; (2) there was factually insufficient evidence to prove that his hand was a deadly weapon; and (3) the trial court erred by allowing the complaining witness to testify about the diagnosis given to her by a treating physician. We affirm.
BACKGROUND
Karen Madern began dating appellant, a Houston police officer, in 1997, and later they were engaged to be married. Madern broke off their engagement. In April 2001, Madern was studying to become a registered nurse, and the two had not seen each other for six months. When Madern told appellant that she was dating someone else, he became very upset. Nevertheless, Madern decided to go out to dinner with appellant on the evening of April 16. The two met in a restaurant parking lot, and then appellant drove them to a restaurant in his truck. The dinner conversation went well, and appellant then drove with Madern back to his apartment. While the couple was in appellant's bedroom, they began to rekindle their romance. Appellant was standing approximately two feet away, and Madern was lying on the bed, when they started talking about Madern's other relationships. Appellant asked Madern whether she had had sex with anyone else while they were separated. He then blamed Madern's friend for setting her up with another man. Madern defended her friend by responding that she made her own decisions. Appellant then straddled Madern's stomach and began punching her on the left side of her face with his closed, right fist. He held her neck with the other hand and punched her five to seven times. Madern could see blood on his hands. Madern was five feet, four inches tall and weighed 125 pounds; appellant was six feet one, inch tall and weighed 220 pounds. Madern called 9-1-1, but appellant took the telephone away from her and called Reynaldo Chapa, one of his friends from the police force. After waiting about half an hour, Chapa drove appellant and Madern to the hospital. While they were in the truck, appellant told Madern that he would lose his job if the police department found out the truth about the assault, so he asked her to lie and to say that the injuries occurred during a robbery. Once they reached the hospital, Chapa took Madern inside. Anthony McConnell, of the Harris County Sheriff's Office, tried to talk to Madern at the hospital, but her jaw would not move, which made McConnell believe that her jaw had been broken. Chapa and Madern told McConnell that Madern had been robbed and beaten at a pay phone, but McConnell did not believe their story. McConnell called another deputy, Kevin Cote, to interview Madern at the hospital. Cote, who had been a deputy for 11 years, testified that Madern's beating was the worst that he had ever seen. When Cote confronted Madern about some of the inconsistencies in her story, she started crying and stated that she did not want to "get him in trouble." Madern then told Cote that "Rudy did it" and gave Cote appellant's full name and address. Madern explained to McConnell that she had lied because appellant was "one of y'all." Madern testified about the extent of her injuries. She said that she had blood all over her face and that her face was badly swollen. When she looked in the mirror, she did not recognize herself. She also testified that the left side of her head, her left eye, her left ear, and her nose were painful and that she was bleeding from her neck. Madern stated that, as a result of the beating, she had a scar behind her ear. Madern also testified that she suffered a septum deviation and a lateral hematoma and that her left eye has drooped since the assault. She also stated that she lost her hearing and the vision in her left eye for "a couple of months." She stated that she was still having pain where the hematoma was located; she has nerve damage on her cheek; and there was possibly a fracture there. Lastly, Madern stated her cheek bone was "dented" when she smiled. The only other witness who offered testimony regarding Madern's injuries was Renee Madden, a nurse practictioner who saw Madern in the hospital. She testified that Madern was not treated immediately, but, instead, was placed in a family room for a period of time prior to her examination. Madern was later placed in minor care. With regard to Madern's injuries, Madden testified that it appeared that Madern had been "savagely" beaten and there was "grotesque swelling and hematoma and contusions and abrasions." She also stated that there were "a lot of contusions and bleeding on the inner buckle of her inner cheek." Madden also stated that she was concerned that Madern might have a broken nose and broken facial bones and that her airway might be obstructed, but she did not know whether there was significant swelling that would cause such problems. Madden also testified that it is possible one could sustain permanent head injuries or die from the kind of injuries sustained by Madern.ANALYSIS
Appellant was charged with aggravated assault, as defined by the Texas Penal Code, which provides:(a) a person commits an offense if the person commits assault . . . and the person:
(2) uses or exhibits a deadly weapon during the commission of the assault.Tex. Pen. Code Ann. § 22.02 (Vernon 2003). A deadly weapon is defined as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(17)(B). Serious bodily injury is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss of any bodily member or organ." Id. § 1.07(46) The indictment alleged that appellant's hands were a deadly weapon.
A. Sufficiency of the Evidence
In his first two points of error, appellant contends the evidence was legally and factually insufficient to show that his hands were a deadly weapon. In evaluating legal and factual sufficiency, we follow the usual standards of review. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex.Crim. App. 2000) (factual sufficiency).1. Legal Sufficiency
Appellant argues that there is no evidence to show that his hands were a deadly weapon. Appellant argues that "[s]imply because the person is struck with a hand in the face does not make a hand a deadly weapon." We agree that hands are not deadly weapons per se, but they can become deadly weapons in the manner of their use, depending upon the evidence. Turner v. State, 664 S.W.2d 86, 89-90 (Tex.Crim.App. 1983); Judd v. State, 923 S.W.2d 135, 140 (Tex. App.-Fort Worth 1996, pet. ref'd); Cooper v. State, 773 S.W.2d 749, 750 (Tex. App.-Corpus Christi 1989, no pet.). When the State alleges the use of a deadly weapon that is not deadly per se, the State must prove beyond a reasonable doubt that the weapon alleged was used in a manner capable of causing death or serious bodily injury. See Hill v. State, 913 S.W.2d 581, 584 (Tex.Crim.App. 1996); Hester v. State, 909 S.W.2d 174, 179 (Tex. App.-Dallas 1995, no pet.). However, the State need not show that the hands actually caused serious bodily injury, so long as it shows that the hands, in the manner used, were capable of causing serious bodily injury. See Brooks v. State, 900 S.W.2d 468, 472 (Tex. App.-Texarkana 1995, no pet.); Clark v. State, 886 S.W.2d 844, 845 (Tex. App.-Eastland 1994, no pet.); Gillum v. State, 888 S.W.2d 281, 288 (Tex. App.-El Paso 1994, pet. ref'd). In this case, Deputy McConnell stated that Madern's injuries were serious and could have caused her death. In addition, the jury saw photographs of the victim's face taken shortly after the incident, which show what Renee Madden, a nurse practitioner, described as "grotesque swelling." Madern testified that, as a result of the beating she received at appellant's hands, she lost the hearing in one ear and the vision in her left eye for "a couple of months." There was also evidence that Madern had suffered a deviated septum and nerve damage, and that her left cheek was permanently "dented." From this evidence, the jury could have rationally concluded that appellant's hands, in the manner used, were capable of inflicting serious bodily injury to Madern. See Morales v. State, 792 S.W.2d 789, 790-91 (Tex. App.-Houston [1st Dist.] 1990, no pet.) (holding evidence sufficient to support deadly-weapon finding when evidence showed that defendant used his hands to suffocate victim); see also Jefferson v. State, 974 S.W.2d 887, 891-92 (Tex. App.-Austin 1998, no pet.) (holding evidence factually sufficient to show hands were deadly weapon when victim suffered broken nose and three lacerations above eye, requiring 14 stitches). We hold that the evidence is legally sufficient. Accordingly, we overrule point of error one.2. Factual Sufficiency
In support of his claim that the evidence is factually insufficient to show that his hands were a deadly weapon, appellant argues that "other than evidence regarding the complainant's injuries, there was no evidence to substantiate the allegation that appellant's hand was, in fact, a deadly weapon." However, no other evidence is necessary in this case because the nature and extent of Madern's injuries show that appellant's hands, in the manner used, were capable of inflicting serious bodily injury. The jury's finding that appellant's hands were a deadly weapon is not against the great weight and preponderance of the evidence. Accordingly, we overrule point of error two.B. Admission of Hearsay
In point of error three, appellant contends that the trial court erred by permitting the victim, Madern, to testify about the diagnosis given her by her treating physicians. Specifically, appellant contends that the evidence was hearsay. We review the trial court's ruling regarding the admission or exclusion of evidence under an abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). During Madern's testimony, the following exchange took place:[Prosecutor]: While the Jury is looking over the pictures, can you tell us what kind of doctors that you've been to as a result of these injuries?
[Madern]: Been to ear, nose and throat specialists.
[Prosecutor]: Can you tell us any kind of diagnosis that you had or loss of anything you had or injuries that you had as far as your ear, nose and throat go?
[Defense Counsel]: I'm going to object to expert diagnosis. Of course she knows her own condition. As to diagnosis, I object to it. (Emphasis added).
[The Court]: That you understand I overrule the objection, allow you to answer.
[Prosecutor]: Can you tell this Jury what kind of problems you had with your nose? How has your nose been affected by this assault?
[Madern]: I have a septum deviation and I had a left lateral hematoma.Appellant contends that the evidence should have been excluded because it was hearsay. See Tex. R. Evid. 801(d). As such, appellant argues that he was not able to cross-examine the declarant, i.e., Madern's treating physicians. However, arguments on appeal must comport with objections made at trial. Dixon v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). Here, appellant objected to Madern's testifying about any "expert diagnosis." This objection does not comport with the hearsay objection raised on appeal. Accordingly, appellant's hearsay complaint is waived. See id. Appellant also argues that his objection was improperly overruled because "there was no foundation laid to show the complaining witness was qualified to give expert testimony." Even if we were to decide that this complaint comported with the trial objection, we would nonetheless overrule the point of error. Appellant provides no analysis or authority to support this complaint, but instead briefs only his hearsay argument. As such, even if error was preserved on this ground, the ground is inadequately briefed on appeal. Therefore, this complaint, too, is waived. See Lockett v. State, 16 S.W.3d 504, 505 n. 2 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd); see also Tex.R.App.P. 38.1(h). Accordingly, we overrule issue three.