Robert Lee Austin, III v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

Nos. 10-04-00349-CR, 10-04-00350-CR,

10-04-00351-CR & 10-04-00352-CR

Robert Lee Austin, III,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 82nd District Court

Falls County, Texas

Trial Court Nos. 8001, 8002, 8003 & 8004

ORDER

          The opinion and judgments dated January 4, 2006 are withdrawn, and the opinion and judgments of even date herewith are substituted therefor.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Order issued and filed March 8, 2006

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risonment and a $10,000 fine. See Tex. Penal Code Ann. § 22.011 (Vernon Supp. 1994). The jury also returned an affirmative finding on a deadly-weapon allegation. See id. § 1.07(11) (Vernon 1974). In the first of two points of error, Plyant challenges the sufficiency of the evidence showing that he penetrated the female sexual organ of the victim. In point two, he challenges the sufficiency of the evidence to show that he used a deadly weapon in the commission of the offense. We will affirm.

      The victim expressly testified that Plyant penetrated her vagina with his penis. Plyant, a sometimes M.B.A. student at Texas A&M University, admitted attacking the victim. However, he denied penetration, claiming instead that he merely rubbed his penis on her back and buttocks, masturbating until he ejaculated. In resolving the sufficiency-of-the-evidence issue, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The jury is the exclusive judge of the credibility of the witnesses and is free to accept or reject any of a witness' testimony. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). "[T]he evidence is not rendered insufficient simply because [Plyant] presented a different version of the events." See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). The victim's testimony is sufficient to establish that Plyant penetrated her vagina with his penis. Point one is overruled.

      In point two, Plyant challenges the sufficiency of the evidence to support the jury's deadly-weapon finding. During the commission of the offense, Plyant wrapped the victim's belt around her neck. According to the victim, Plyant wrapped the belt so tightly that her breathing was interfered with and she was unable to shout out. Plyant agreed that he had wrapped the belt around the victim's neck, but claimed he used the belt only to control the victim and did not intend to use the belt as a weapon.

      A "deadly weapon" is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(11)(B). The State was required to show by evidence that the belt was actually capable of causing death or serious bodily injury in the manner Plyant used it. See Holder v. State, 837 S.W.2d 802, 808 (Tex. App.—Austin 1992, pet. ref'd). We are required to determine whether the evidence is constitutionally sufficient to support a rational finding by the jury that the belt was a deadly weapon. See Thomas v. State, 821 S.W.2d 616, 620-21 (Tex. Crim. App. 1991).

      The State presented testimony from a homicide detective who stated that the belt would be capable of killing or seriously injuring a person when used in the manner described by the victim and Plyant. Additionally, the victim testified that she feared for her life during the assault. The jury was free to reject Plyant's account of his actions. See Lackey, 819 S.W.2d at 116; see also Roberts v. State, 766 S.W.2d 578, 579 (Tex. App.—Austin 1989, no pet.). The evidence is sufficient to support the jury's deadly-weapon finding. See Bethel v. State, 842 S.W.2d 804, 807 (Tex. App.—Houston [1st Dist.] 1992, no pet.). Point two is overruled.

      The judgment is affirmed.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed July 20, 1994

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