By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Baseball bat as used was a deadly weapon
(99-4-10)
On September 16, 1999, the Houston Fourteenth District Court of Appeals held
that in the manner of its use a baseball bat was a deadly weapon that would
sustain an adjudiction for aggravated assautl with a deadly weapon.
99-4-10. In the Matter of B.I., UNPUBLISHED, No. 14-98-00697-CV, 1999 WL 718044,
1999 Tex.App.Lexis ___ (Tex.App.--Houston [14th Dist.] 9/16/99)[Texas Juvenile
Law 168 (4th Edition 1996)].
Facts: On November 7, 1997, the State filed a petition alleging that appellant,
B.I., engaged in delinquent conduct by committing the offense of aggravated
assault. See Tex.Pen. Code Ann. § 22.02 (Vernon Supp.1999). A bench trial was
held and appellant was adjudicated a child who engaged in delinquent conduct.
Appellant challenges the trial court's ruling in two points of error.
On July 29, 1997, Jamie Evans learned that appellant had struck her younger
brother in the head with a rock. Evans went to appellant's home to confront him
about the incident and they exchanged words. Appellant then told his brother to
get his baseball bat, and appellant struck Evans twice with the bat. Appellant's
mother intervened and Evans ran home. Evans was subsequently taken to the
hospital for a physical examination and was given pain medication and told to
watch for swelling. She sustained bruises that lasted for several weeks.
Held: Affirmed.
Opinion Text: In his first point of error, appellant asserts the evidence was
legally and factually insufficient to support the trial court's ruling
adjudicating him a child who had engaged in delinquent conduct by committing the
offense of aggravated assault. In reviewing the sufficiency of the evidence in a
juvenile case, this Court has adopted a standard which requires us to "view
the evidence as a whole to determine whether the State met its burden of proof
beyond a reasonable doubt." In the Matter of G.M.P., 909 S.W.2d 198, 202 (Tex.App.--Houston
[14th Dist.] 1995, no writ); see also In re M.R., 846 S.W.2d 97, 101 (Tex.App.--Fort
Worth 1992, writ denied); In re S.D.W., 811 S.W.2d 739, 749 (Tex.App.-- Houston
[1st Dist.] 1991, no writ). Resolving conflicts and contradictions in the
evidence is left for the trier of fact. See Matter of G.M.P., 909 S.W.2d at 203.
The jury is the sole judge of the credibility of witnesses and the weight to be
given their testimony. See id. The jury is free to believe some witnesses and
refuse to believe others, and it may accept some portions of testimony and
reject other portions. See id. Therefore, as the reviewing court, our role is
not to act as a thirteenth juror reevaluating the weight and credibility of the
evidence, but act only to ensure the jury reached a rational decision. See id.
Appellant contends the State failed to prove a baseball bat is a deadly weapon.
Section 1.07(17) of the Texas Penal Code defines a deadly weapon as follows:
(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.Pen. Code Ann. § 1.07(17) (Vernon Supp.1999). While most courts have
recognized that a baseball bat is not a deadly weapon per se, they have
concluded that death or serious bodily injury can be inflicted by a baseball
bat. See Hammons v. State, 856 S.W.2d 797, 801 (Tex.App.--Fort Worth 1993, pet.
ref'd); Fugett v. State, 855 S.W.2d 227, 229 (Tex.App.--Fort Worth 1993, no
pet.); Hughes v. State, 739 S.W.2d 458, 459 (Tex.App.--San Antonio 1987, no
pet.). An object can qualify as a deadly weapon through the manner of its use or
intended use, its size, shape, and its capacity to produce death or serious
bodily injury. See Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App.1978). The
State presented the expert testimony of Harry Hunt, a district attorney
investigator. Hunt testified that he had investigated assault cases and was
familiar with the types of wounds inflicted by baseball bats. He stated that a
baseball bat can cause serious bodily injury or death. In light of the cases
recognizing that a bat is capable of inflicting serious bodily injury and the
expert witness testimony presented by the State, we conclude the evidence was
legally and factually sufficient to support the trial court's finding that the
baseball bat used by appellant was a deadly weapon.
Appellant also argues that the bat is not a deadly weapon because the injuries
that Evans sustained do not constitute serious bodily injury as required by the
statutory provision defining aggravated assault. Section 22.02 of the Texas
Penal Code defines aggravated assault and provides, in pertinent part:
(a) A person commits an offense if the person commits assault as defined in
Section 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
Tex.Pen. Code Ann. s 22.02 (Vernon Supp.1999) (emphasis added). What appellant
fails to note is that the definition of aggravated assault is disjunctive. In
other words, a person commits aggravated assault if he either causes serious
bodily injury to another, or the other's spouse, or uses or exhibits a deadly
weapon during the commission of the assault. Thus, because we found the evidence
sufficient to establish that appellant used a deadly weapon during his assault
of Evans, it is not necessary that Evans sustained serious bodily injury. The
requirements of section 22.02 have been met. The trial court did not err in
adjudicating appellant a child who engaged in delinquent conduct by committing
the offense of aggravated assault. We overrule appellant's first point of error.