Sharpnack, Preston Joe ( 2015 )


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  •                                                                              PD-1030-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 9/8/2015 3:15:33 PM
    Accepted 9/10/2015 3:44:23 PM
    September 10, 2015         PDR # PD-1030-15                                  ABEL ACOSTA
    CLERK
    IN THE TEXAS COURT OF CRIMINAL APPEALS
    AT AUSTIN, TEXAS
    ===============================================
    PRESTON JOE SHARPNACK,
    Petitioner
    v.
    THE STATE OF TEXAS,
    Appellee
    ===============================================
    Petitioner’s Petition for Discretionary Review to the
    Texas Court of Criminal Appeals from his appeal
    to the Third District Court of Appeals
    in 03-13-00689-CR
    ===============================================
    Submitted by
    Law Office of Alexander L. Calhoun
    4301 W. William Cannon Dr., Ste. B-150 # 260
    Austin, Texas 78749
    tele: 512/ 731 - 3159
    fax: 512/ 233- 5946
    Email: alcalhoun@earthlink.net
    Oral Argument is Requested
    Table of Contents
    Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
    Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Question Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Reason for Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Ground for Review (Restated). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    A. Facts in Support of Granting this Petition. . . . . . . . . . . . . . . . . . . . . . . . 2
    B. Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
    Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
    Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
    Appendix A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
    ii
    Index of Authorities
    Cases:
    Brister v. State, 
    449 S.W.3d 490
    (Tex.Cr.App. 2014). . . . . . . . . . . . . . . . . . . . . . . 8
    Drichas v. State, 
    175 S.W.3d 795
    (Tex.Cr.App.2005). . . . . . . . . . . . . . . . . . . . . . . 8
    Enriquez v. State, 
    826 S.W.2d 191
    (Tex.App. - El Paso 1992) . . . . . . . . . . . . . . . . 7
    Escobar v. State, 
    799 S.W.2d 502
    (Tex. App. - Corpus Christi 1990).. . . . . . . . . . 7
    Franklin v. State, 
    606 S.W.2d 818
    (Tex.Cr.App. 1978) . . . . . . . . . . . . . . . . . . 7, 12
    Kennedy v. State, 
    402 S.W.3d 796
    (Tex. App.—Fort Worth 2013). . . . . . . 9, 10, 11
    Lane v. State, 
    151 S.W.3d 188
    (Tex.Cr.App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . 8
    Lozano v. State, 
    860 S.W.2d 152
    (Tex.App. - Austin 1993). . . . . . . . . . . . . . . . . . 6
    Patterson v. State, 
    769 S.W.2d 938
    (Tex.Cr.App. 1989). . . . . . . . . . . . . . . . . . . . . 7
    Parris v. State, 
    757 S.W.2d 842
    (Tex.App.- Dallas 1988) . . . . . . . . . . . . . . . . . . . 
    7 Rice v
    . State, 
    771 S.W.2d 599
    (Tex.App. - Hous. [14th Dist.] 1989). . . . . . . . . . . . 6
    Sharpnack v. State, 03 - 13- 00689 - CR (Tex.App.- Austin 2015). . . . . . 1, 6, 9
    Shockley v. State, 
    747 S.W.2d 470
    (Tex.App. - Hous. [1st Dist.] 1988) .. . . . . . . . 7
    Stanul v. State, 
    870 S.W.2d 329
    (Tex.App. — Austin 1994). . . . . . . . . . . . . . . . . . 6
    Terry v. State, 
    672 S.W.2d 236
    (Tex.App.-Waco 1983) .. . . . . . . . . . . . . . . . . . . . 7
    Thomas v. State, 
    821 S.W.2d 616
    (Tex.Cr.App. 1991). . . . . . . . . . . . . . . . . . . . . . 6
    Turner v. State, 
    664 S.W.2d 86
    (Tex.Cr.App. 1983) . . . . . . . . . . . . . . . . . . . . 8, 12
    iii
    Tyra v. State, 
    897 S.W.2d 796
    (Tex.Cr.App. 1995).. . . . . . . . . . . . . . . . . . . . . . 6, 8
    Statutes and Rules:
    Tex.Penal Code § 1.07(a)(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    Tex.Penal Code § 22.01(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Tex.Penal Code § 22.02(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Tex.R.App.Pro. Rule 66.3 ( b ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Tex.R.App.Pro. Rule 66.3 ( c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    iv
    Statement Regarding Oral Argument
    This case involves a potentially nuanced issue of law in which oral argument
    may be beneficial to this Court to clarify the issues involved.
    v
    TO THE TEXAS COURT OF CRIMINAL APPEALS:
    COMES NOW, Petitioner, PRESTON JOE SHARPNACK, who, by and
    through his undersigned attorney of record, presents this Petition for Discretionary
    Review pursuant to Tex.R.App.Pro. Rule 66.1 et seq., and would show as follows:
    Statement of the Case
    Petitioner was charged with Aggravated Assault with a Deadly Weapon.
    Tex.Penal Code § 22.02(a)(2), 22.01(a)(1). [Clerk’s Record (hereinafter “C.R." ):
    4 - 5].     The jury convicted Appellant on the charged offense. [C.R.: 58].      The
    punishment phase was held to the court, which assessed an agreed upon sentence of
    10 years. [C.R.: 66]. The Court also entered an affirmative finding of a deadly
    weapon. [C.R.: 66]. Appellant timely filed a notice of appeal. [C.R.: 82 - 83].
    Statement of Procedural History
    The Third District Court of Appeals affirmed Petitioner’s conviction.
    Sharpnack v. State, 03 - 13- 00689 - CR (Tex.App.- Austin 2015). Petitioner did
    not file a Motion for Rehearing. Following a grant of an extension to file the Petition
    for Discretionary Review, this Petition is due by September 9, 2015.
    Question Presented
    WHETHER THE COURT OF APPEALS’ DECISION REGARDING THE
    SUFFICIENCY OF THE EVIDENCE TO PROVE PETITIONER USED HIS HANDS
    AS DEADLY WEAPONS ERRONEOUSLY REJECTED A MENS REA
    1
    REQUIREMENT TO THE USE OF A DEADLY WEAPON AND IMPOSED AN
    UNREASONABLY ATTENUATED THEORY OF STRICT LIABILITY FOR
    INJURY.
    Reasons for Review
    1.    Review is appropriate and necessary because the Third District Court of
    Appeals has addressed an important issue of the law which conflicts with precedent
    by this Court and other courts of appeals. Tex.R.App.Pro. Rule 66.3 ( c ).
    2.    In the alternative, to the extent that the precise question before this Court is not
    clearly settled, the Court of Appeals has decided a question of law which has not
    been, but should be settled by this Court. Tex.R.App.Pro. Rule 66.3 ( b ).
    Ground for Review (Restated)
    THE COURT OF APPEALS’ DECISION UPHOLDING THE SUFFICIENCY OF
    THE EVIDENCE TO PROVE PETITIONER USED HIS HANDS AS DEADLY
    WEAPONS ERRONEOUSLY REJECTED A MENS REA REQUIREMENT TO THE
    USE OF A DEADLY WEAPON AND IMPOSED AN UNREASONABLY
    ATTENUATED THEORY OF STRICT LIABILITY FOR INJURY.
    A. Facts in Support of Granting this Petition
    The instant case involves a challenge to the sufficiency of the evidence; the
    facts below are set out in the light most favorable to the verdict.
    The decedent, Matthew Casey, and his friend, Michael Campbell were strolling
    in 6th Street entertainment district of Austin in the early morning hours of September
    2
    3, 2012, Labor Day weekend. [Vol. 6 Reporter’s Record (hereinafter “R.R.”): 83 -
    84].    Both were highly intoxicated.       [Vol. 5 R.R.: 38, 66, 135; 6 R.R.: 87 - 88,
    116, 141]. Casey got into a verbal altercation with Petitioner and his companion,
    Renee Jones. [5 R.R.: 104- 106, 148 153, 154 - 172; 6 R.R.: 88, 90 - 92, 132 - 133;
    State’s Exhibit 25]. Petitioner abruptly struck Casey in the face with his fist, causing
    Casey to lose consciousness. Casey collapsed to the sidewalk, striking his head. [5
    R.R.: 89 - 90, 94, 100, 105, 107, 113 - 114, 133 - 134]. Casey regained only semi-
    consciousness after the fall and was transported to a local hospital to receive trauma
    care.    [5 R.R.: 96, 97, 114 - 115, 118, 129 - 131, 133; 6 R.R.: 94, 97, 134]. He
    eventually received neuro-surgery. [5 R.R.: 66 - 67, 86, 127, 134; 6 R.R.: 110 - 116;
    7 R.R.: 45 - 48]. He eventually died as a result of the head injuries he received from
    hitting his skull in the fall. [7 R.R.: 48 - 49].].
    The medical testimony reflected that Casey received a fractured skull, a
    subdural hematoma and cerebral edema as a result of the impact of his head on the
    sidewalk. [6 R.R.: 113 - 120].        Although neuro-surgery removed the subdural
    haematoma, Casey continued to experience post-operative swelling of the brain,
    which ultimately proved to be fatal. [7 R.R.: 47 - 49].     Casey also had a laceration
    on his left ear, consistent with being punched in the face, but the attending physician
    concluded that the injury would not have been life - threatening. [6 R.R.: 121 - 122].
    3
    The autopsy reflected Casey had received a skull fracture, contusions on the
    brain and a subdural hematoma, consistent with having been struck, falling back and
    striking his head on the sidewalk. [7 R.R.: 22 - 24, 27 - 29]. The brain injury was
    the primary injury. [7 R.R.: 30]. In response to the prosecutor’s leading question, the
    deputy medical examiner testified that a hand could be a deadly weapon in situations,
    like the present, where it caused a person to fall and strike his head. [7 R.R.: 32 - 34].
    She subsequently qualified that the punch in and of itself was not sufficient to have
    caused the brain injuries. [7 R.R.: 40 - 41]. Rather, it death was caused bu blunt
    force trauma to the back of Casey’s head as a result of his striking the sidewalk. [7
    R.R.: 37, 40].
    The neurosurgeon who performed neurosurgery on Casey, Dr. Alex Valadka,
    testified the subdural hematoma was consistent with being struck, falling to the
    ground, striking one’s head on the sidewalk. [7 R.R.: 50]. Dr. Valadka agreed that
    a person’s hand could have “caused” the injury by “hit[ting] someone with such force
    that they would fall and hit their head.” [7 R.R.: 50]. But Dr. Valadka clarified that
    it was the effect of striking one’s head on the ground, and not the fall itself, which
    resulted in Casey’s brain injury. [7 R.R.: 50 - 51].
    The lead detective on the case testified that as a general matter a hand could
    be used as a deadly weapon, but one of the officer’s who responded to the initial
    4
    scene of the assault admitted that he had never seen an individual die from a single
    punch to the head. [5 R.R.: 64, 203 - 204].
    The jury convicted Petitioner of the charged offense, Aggravated Assault with
    a Deadly Weapon. [9 R.R.: 5].
    B.     Argument and Authority
    i.     Case precedent on what constitutes a deadly weapon, though
    while broad, is not unlimited and entails an underlying mens
    rea requirement applying to the specific use of the object as a
    deadly weapon.
    This Court is presented with the question of whether the Austin Court of
    Appeals has adopted an erroneous interpretation of the use of a deadly weapon, one
    which disregards the mens rea requirement to deadly weapon jurisprudence and
    which substitutes a strict liability approach.
    Petitioner struck Casey one time in his face with his fist. Casey, who was
    heavily intoxicated, passed out with the blow and crumpled to the street. Petitioner’s
    punch caused a laceration to his ear, but was not life threatening.   In falling to the
    ground, however, Casey received a skull fracture and accompanying bleeding in the
    brain from the impact with the pavement. He died of the injuries received by that
    impact. No testimony reflected Petitioner’s single blow actually caused the injuries
    which proved fatal.
    5
    Despite the absence of evidence to demonstrate Petitioner’s intent to cause
    serious injuries or death, the Court of Appeals held the evidence was sufficient to
    uphold the verdict that he had used his hands as deadly weapons, essentially because
    by striking the decedent, he initiated a chain of event in which the decedent ultimately
    died. See Sharpnack v. State, 03-13-00689-CR, slip op. at 4 - 6 (Tex.App. – Austin
    2015).
    The Texas Penal Code defines a “deadly weapon” as either:
    (A) a firearm or anything manifestly designed, made, or adapted for the
    purpose of inflicting death or serious bodily injury; or
    (B) anything that in the manner of its use or intended use is capable of
    causing death or serious bodily injury.
    Tex.Penal Code § 1.07(a)(17).
    This Court and the lower courts have upheld the findings on numerous object
    as a deadly weapons when specifically used in a manner as a weapon. Thomas v.
    State, 
    821 S.W.2d 616
    , 620 (Tex.Cr.App. 1991); Tyra v. State, 
    897 S.W.2d 796
    ,798
    - 799 (Tex.Cr.App. 1995); Stanul v. State, 
    870 S.W.2d 329
    (Tex.App. — Austin
    1994)(defendant used floor as deadly weapon by striking victim's head against it);
    Lozano v. State, 
    860 S.W.2d 152
    , 156 (Tex.App. - Austin 1993) (lighter specifically
    used to ignite fire which burned building); Rice v. State, 
    771 S.W.2d 599
    , 600 - 601
    (Tex.App. - Hous. [14th Dist.] 1989) (gasoline poured over victim and ignited);
    6
    Enriquez v. State, 
    826 S.W.2d 191
    , 192 - 193 (Tex.App. - El Paso 1992) (soft drink
    bottle used to strike complainant); Escobar v. State, 
    799 S.W.2d 502
    , 507 (Tex.
    App. - Corpus Christi 1990) (baseball bat used to bludgeon complainant); Shockley
    v. State, 
    747 S.W.2d 470
    , 474 (Tex.App. - Hous. [1st Dist.] 1988) (fabric or hand,
    either of which could be used to strangle); and, Terry v. State, 
    672 S.W.2d 236
    , 238
    - 240 (Tex.App.-Waco 1983) (plastic bag placed over victim's head to suffocate her).
    These cases reflect not simply the variability of otherwise innocuous objects in their
    capability of being used as weapons. They are also tied by a common theme that the
    assailant consciously utilized them in a specific manner of inflicting a specific result.
    There is an implied mens rea element to the use of the innocuous objects as deadly
    weapons. Patterson v. State, 
    769 S.W.2d 938
    , 941 (Tex.Cr.App. 1989) ( "’used . . .
    a deadly weapon’ during the commission of the offense means that the deadly weapon
    was employed or utilized in order to achieve its purpose.”). See also, Franklin v.
    State, 
    606 S.W.2d 818
    , 823 (Tex.Cr.App. 1978) (“The evidence in the instant case
    does not show that the knife used is a deadly weapon per se, but the evidence clearly
    establishes that it was used in a manner calculated to produce death.”) (emphasis
    added). Compare Parris v. State, 
    757 S.W.2d 842
    , 847 (Tex.App.- Dallas 1988)
    ( holding evidence insufficient to prove sidewalk was used as a deadly weapon, “there
    being no showing of purposeful use of the sidewalk to inflict injury.”) (emphasis
    7
    added).
    This Court has also upheld deadly weapon findings to objects which have not
    been used with the specific intent to utilize them as weapons, e.g., automobiles driven
    by intoxicated drivers, 
    Tyra, supra
    ; and, Brister v. State, 
    449 S.W.3d 490
    , 494
    (Tex.Cr.App. 2014), but analysis of such automobile cases do not reflect an
    exception to the rule so much as recognize an underlying mens rea given that the
    operation of a multi-ton object at significant speed, on a highway, while intoxicated
    implies recklessness. See 
    Brister, 449 S.W.3d at 494
    (citing Drichas v. State, 
    175 S.W.3d 795
    , 797-98 (Tex.Cr.App.2005)).
    Indeed, hands can be used as deadly weapons when purposefully used in a
    manner likely to result in death or serious bodily injury. Turner v. State, 
    664 S.W.2d 86
    , 90 (Tex.Cr.App. 1983) (noting that while hands and feet are not typically deadly
    weapons, they may become so when “calculated to inflict serious bodily injury . . .”
    (Emphasis added); and, Lane v. State, 
    151 S.W.3d 188
    , 192 (Tex.Cr.App. 2004)
    (repeated closed fist strikes to head and then kicking to chest and abdomen sufficient
    to demonstrate use as deadly weapon).
    ii.    The Court of Appeals erred in relying upon the Fort Worth Court
    of Appeal’s Decision in Kennedy v. State, 
    402 S.W.3d 796
    (Tex.
    App.— Fort Worth 2013, pet. ref’d) which applied an attenuated
    and strict liability approach to when a hand constitutes a deadly
    weapon.
    8
    The Austin Court of Appeals disregarded the mens rea requirement inherent
    in “deadly weapons” jurisprudence, instead, substituting substituted an attenuated
    “strict liability” causal chain between the object’s use – in this case, Petitioner’s
    single punch – and the decedent’s ultimate death from the brain hemorrhage.
    Sharpnack, slip op. at 4 -6.
    In upholding the finding that Petitioner’s hands constituted deadly weapons,
    the Austin Court of Appeals relied primarily on the Fort Worth Court of Appeals’
    divided panel decision in Kennedy v. State, 
    402 S.W.3d 796
    (Tex. App.—Fort Worth
    2013, pet. ref’d).
    In Kennedy, an Aggravated Robbery case, the defendant, while carrying out a
    stolen television from Walmart, collided with and knocked over a store employee,
    who suffered a skull fracture and bleeding after hitting his head on the concrete floor.
    
    Id., at 798,
    801. Unbeknownst to Kennedy, the employee had a serious pre-existing
    liver disease, which rendered him prone to excessive bleeding and he died from
    complications from his injuries a few days later.           
    Id., at 798,
    801.     Medical
    testimony reflected that the employees injuries did not significantly contribute to his
    death . . . but in light of his late-stage liver disease, the push or strike from Appellant
    that led to his injuries was capable of causing death or serious bodily injury.” He
    “was at a significant risk for internal bleeding, which could have been precipitated
    9
    from something as simple as shaking his head, lowering his head to a pillow, or
    plopping down into a chair.” 
    Id., at 801.
    Based on this, the Fort Worth Court of Appeals concluded that Kennedy, by
    using his hands to push away the employee used his hands as deadly weapons where
    the employee fell “down to a concrete floor, . . . he hit his head, became disoriented,
    and had to go to the hospital, where he died a few days later.” 
    Id., at 802.
    Kennedy’s attenuated holding did not pass unchallenged, however. Writing
    in dissent, Justice Dauphinot, who faulted the Panel for extending the law regarding
    the use of deadly weapons to extremes without an accompanying mens rea:
    . . . nothing explains how Appellant was supposed to know that using
    his hand to push himself away from the complainant was turning his
    hand into a deadly weapon in the manner of its use. Nothing in the
    record reflects any intent to cause death or serious bodily injury. Indeed,
    the complainant's fall resulted in death only because of his seriously
    compromised liver.
    ...
    From the first day of law school, we learn that there must be not only the
    actus reus, but also the mens rea. We learn that statutes must be
    sufficiently specific to put the average person on notice of the prohibited
    conduct. Is the requirement of mens rea really becoming a relic of the
    past so that our offenses are strict liability crimes requiring no intent or
    even negligence? Are our offenses really becoming so vague that they
    are a question of how far the law can be stretched?
    
    Id., at 804.
    10
    Justice Dauphinot concluded that federal and state constitutional requirements
    necessitated proof of mens rea when using a deadly weapon:          “federal and state
    constitutions require proof beyond a reasonable doubt that a person found to have
    used or exhibited a deadly weapon in the commission of an offense did so knowingly
    or should have known that he was doing so,” 
    Id., at 805
    (emphasis added).
    Kennedy provides an unsound basis for the Court’s conclusion in Petitioner’s
    own case. For one, it was a divided panel decision in which the dissent clarified its
    key failing: the appellate court disregarded the underlying mens rea requirement to
    a finding that an object – hands – constituted a deadly weapon under the specific
    circumstances in which they were used. There had been no evidence to demonstrate
    the defendant in Kennedy had either intended, or should have been aware of the actual
    possibility that shoving the decedent would likely result in serious injury or death.
    Further, the appellate court adopted an unreasonably attenuated causal chain to link
    the actual use of the defendant’s hands to the unintended result.
    Just as in Kennedy, the Austin Court of Appeals has issued a decision based on
    specious reasoning. The Court has adopted an attenuated causal process from
    Petitioner’s solitary, non-fatal punch to the decedent’s unanticipated death from
    complications caused but by his striking his head on the pavement. In applying this
    strained causal chain, the Court of Appeals has superimposed a strict liability
    11
    approach over the mens rea requirement firmly established by this Court and applied
    by the courts of appeals in this State. See e.g., 
    Turner, 664 S.W.2d at 90
    ; and,
    
    Franklin, 606 S.W.2d at 823
    .
    For the foregoing reasons, this Court should grant this petition to correct the
    Austin Court of Appeals decision and to provide express guidance on the requirement
    of mens rea to the use of innocuous weapons as deadly weapons.
    Conclusion and Prayer
    WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully requests
    this Honorable Court to grant this petition for discretionary review, permit full
    briefing and argument on this issue, and to subsequently grant such relief to which
    Petitioner may be entitled.
    Respectfully submitted,
    Law Office of Alexander L. Calhoun
    4301 W. William Cannon Dr., Ste. B-150 # 260
    Austin, TX 787049
    Tele: 512/ 731-3159
    Fax: 512/ 233-5496
    Email: alcalhoun@eathlink.net
    BY:_/s/___Alexander L. Calhoun_______
    Alexander L. Calhoun
    State Bar No.: 00787187
    12
    CERTIFICATE OF SERVICE
    I hereby certify that a copy of the above and foregoing Petition for
    Discretionary Review was served upon the following parties on September 10, 2015
    by United States Mail:
    Travis County District Attorney's Office
    P.O. Box 1748
    Austin, TX 78767
    and
    State Prosecuting Attorney
    P.O. Box 13046
    Capitol Station
    Austin, Texas 78711
    /s/ Alexander L. Calhoun
    Alexander L. Calhoun
    13
    Certificate of Compliance
    I hereby certify that the foregoing Petition for Discretionary Review was
    created in 14 point type, Times New Roman font, and consists of 3523 words.
    /s/ Alexander L. Calhoun
    Alexander L. Calhoun
    14
    Appendix A
    Preston Joe Sharpnack v. State of Texas, No. 03-13-00689-CR
    (Tex.App. – Austin, July 9, 2015)
    15
    TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-13-00689-CR
    Preston Joe Sharpnack, Appellant
    v.
    The State of Texas, Appellee
    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
    NO. D-1-DC-13-900164, HONORABLE KAREN SAGE, JUDGE PRESIDING
    MEMORANDUM OPINION
    A jury found Preston Joe Sharpnack guilty of aggravated assault with a deadly
    weapon. The trial court assessed an agreed sentence of ten years in prison. Sharpnack contends that
    the finding that he used his hand as a deadly weapon was not supported by the evidence. We will
    affirm the judgment.
    Though there is some disagreement about the nature and sequence of the events
    that brought Sharpnack into contact with Matthew Casey on a downtown Austin street shortly
    after midnight on Labor Day, those differences are irrelevant to the issue presented to this Court
    on appeal. Sharpnack undisputedly punched Casey on the left side of his jaw. Casey fell—some
    witnesses said he appeared to have been knocked unconscious immediately—and hit his head on the
    sidewalk. He incurred a subdural hematoma near the base of his skull, his brain swelled, and he died
    despite brain surgery and treatment.
    We will review the record to determine whether, after viewing the evidence in the
    light most favorable to the verdict, any rational trier of fact could have found beyond a reasonable
    doubt that Sharpnack’s hand was a deadly weapon. See Brister v. State, 
    449 S.W.3d 490
    , 493
    (Tex. Crim. App. 2014). To be legally sufficient to sustain a deadly weapon finding, the evidence
    must demonstrate that: (1) the object meets the statutory definition of a dangerous weapon; (2) the
    deadly weapon was used or exhibited during the transaction from which the felony conviction was
    obtained; and (3) other people were put in actual danger. Drichas v. State, 
    175 S.W.3d 795
    , 798
    (Tex. Crim. App. 2005). Only the first element is disputed in this appeal.
    The definition of “deadly weapon” includes “anything that in the manner of its use or
    intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07(a)(17)(B).
    A hand can be a deadly weapon because a closed fist striking a person’s head can cause serious
    physical injury even when the blow does not cause death. Lane v. State, 
    151 S.W.3d 188
    , 191
    (Tex. Crim. App. 2004). The State need not show that the hand actually caused serious bodily injury
    so long as it shows that the hand was capable of causing serious bodily injury in the manner of its
    use. Jefferson v. State, 
    974 S.W.2d 887
    , 892 (Tex. App.—Austin 1998, no pet.). The fact that an
    item could be used as a deadly weapon does not prove that it is a deadly weapon—the statute
    requires proof that the object was used or intended to be used in a way that made it capable of
    causing serious bodily injury or death. Johnston v. State, 
    115 S.W.3d 761
    , 763 (Tex. App.—Austin
    2003), aff’d, 
    145 S.W.3d 215
    (Tex. Crim. App. 2004).1
    1
    Sharpnack asserts that prosecutors seeking a deadly-weapon finding must show that the
    object “caused a fatal wound.” See Parris v. State, 
    757 S.W.2d 842
    , 846 (Tex. App.—Dallas 1988,
    pet. ref’d). That language was used in the context of a murder case and is inapplicable to this
    2
    Sharpnack contends that the evidence is insufficient to show that he used or exhibited
    his hand as a deadly weapon. He contends that he was defending his female companion with whom
    Casey had argued.2 He relies on medical expert testimony that the injury he directly inflicted by his
    punch was not sufficient by itself to kill or cause serious bodily injury, and that Casey’s intoxication
    made him susceptible to the unconsciousness that caused him to fall and hit his head on the sidewalk.
    Sharpnack concludes that his punch was too attenuated from the fatal brain injury caused by Casey’s
    subsequent contact with the sidewalk to classify his hand as a deadly weapon.
    The neurosurgeon who treated Casey and the medical examiner both testified
    regarding how a hand can be a deadly weapon. The neurosurgeon explained that both a punch and
    hitting one’s head on a sidewalk can cause a blood clot in the brain. He testified that Casey’s
    condition was consistent with being punched with such force that he fell and hit his head. The
    neurosurgeon said that the blows caused the blot clot and brain swelling that led to Casey’s death.
    The medical examiner testified that a blunt-force injury to the back of Casey’s head caused his death,
    and she classified it as a homicide. She answered “yes” when asked if a person’s hand is capable
    of causing death or serious bodily injury in the manner of its use when the person strikes another
    with his hand, causing the person struck to fall and hit his head on the pavement and suffer a brain
    injury that leads to death.
    aggravated assault case. See 
    id. at 843.
    No fatal wound must be shown under either the definition
    of “deadly weapon” or the offense of aggravated assault. See Tex. Penal Code §§ 1.07(a)(17)(B)
    (deadly weapon), 22.02(a) (aggravated assault).
    2
    The jury was charged on self-defense and defense of others, but necessarily rejected those
    defenses in finding Sharpnack guilty of aggravated assault.
    3
    The State also relies on testimony about the nature and effect of Sharpnack’s punch
    specifically. A bystander characterized the punch as “forceful” and audible from about 100 feet
    away. The witness testified that Casey was not in a defensive stance and appeared to be caught off
    guard by the punch. The witness said that Casey buckled and fell over immediately like a rag doll,
    as if he was unconscious before he hit the ground. A paramedic who treated the victim testified that
    Casey was unconscious and bleeding from his left ear, with a bruise on his left jaw.
    We will examine these facts and arguments in light of guiding authority from cases
    dealing with deadly-weapon findings. See Kennedy v. State, 
    402 S.W.3d 796
    , 800 (Tex. App.—Fort
    Worth 2013, pet. ref’d); 
    Johnston, 115 S.W.3d at 764
    ; 
    Jefferson, 974 S.W.2d at 892
    .
    The fact that an object can be used to inflict serious bodily injury or death does not
    make it a deadly weapon for all purposes. 
    Johnston, 115 S.W.3d at 764
    . In that case, the defendant
    used a cigarette to make one undisputedly “not serious” burn on a child’s hand. 
    Id. This Court
    found that, even though a cigarette could be used to cause burns that could result in serious bodily
    injury or death, the evidence was insufficient to prove that Johnston intended to use the cigarette in
    a manner that could cause serious bodily injury or death. 
    Id. Using the
    weapon in a manner that can cause serious injury or death is sufficient for
    the deadly-weapon finding even if the victim does not suffer such injuries. 
    Jefferson, 974 S.W.2d at 892
    . In that case, this Court affirmed a jury finding that the defendant used his hands as a deadly
    weapon when he punched the victim in the face several times, causing the victim’s nose to swell,
    his cheek to have numbness, his jaw to be sore, the area around his eye to bruise, and his eyes to
    suffer blurred vision. 
    Id. The victim’s
    nose was not broken and he did not lose his sense of smell
    4
    or taste. 
    Id. He did
    not lose consciousness and was “not subject to a substantial risk of death.” 
    Id. This Court
    nevertheless found that the defendant’s hands were a deadly weapon based on evidence
    that the defendant punched the victim in the face several times and that a person who is hit
    repeatedly in the face by hands can suffer serious bodily injury such as brain damage, blindness, a
    loss of the sense of smell, and blurred vision. 
    Id. A victim’s
    susceptibility to injury can affect whether an object used against him is
    a deadly weapon. 
    Kennedy, 402 S.W.3d at 800
    . “[A] person who uses a weapon to illegally assault
    another person must take his victim as he finds [him].” 
    Id. In that
    case, the defendant stealing a
    television set from a store pushed a store employee out of his way. 
    Id. at 801.
    The employee fell,
    hit his head on the concrete floor, suffered a skull fracture and brain bruise, and died a few days later.
    
    Id. The employee
    was suffering from late-stage liver disease that made him susceptible to extended
    bleeding, and the medical examiner testified that the employee’s compromised condition meant that
    the defendant’s push was capable of causing death or serious bodily injury. 
    Id. The court
    held that,
    under these circumstances, the evidence was sufficient to support a finding that the defendant used
    his hands or the television in a manner that was capable of causing serious bodily injury or death.
    Whether Sharpnack intended to kill Casey was not the issue before the jury and it
    is not the issue before this Court. The question is whether Sharpnack’s hand was, in the manner of
    its use or intended use, capable of causing serious bodily injury or death. See Tex. Penal Code
    § 1.04(a)(17)(B). There was testimony that a hand is theoretically capable of causing serious bodily
    injury and death, and more specifically that a punch to the face that causes unconsciousness
    and an unbroken fall to the sidewalk can and did result in death in this case. Though there was
    5
    testimony that Casey angrily approached Sharpnack and his companion threatening to hit them, there
    was also testimony that Casey was intoxicated and unsuspecting. In the latter scenario, Casey was
    perhaps more vulnerable to the full force of Sharpnack’s punch. According to one witness, the
    punch was powerful enough to be audible down a downtown block. Testimony showed that, when
    punched, Casey fell instantly and hit his head on the sidewalk and later died from his injuries. On
    this record, we cannot say that no rational jury could have found that Sharpnack’s hand was used or
    intended to be used in a manner capable of causing serious bodily injury and death.
    We affirm the judgment.
    Jeff Rose, Chief Justice
    Before Chief Justice Rose, Justices Goodwin and Field
    Affirmed
    Filed: July 9, 2015
    Do Not Publish
    6