Hopper v. State
483 S.W.3d 235
| Tex. App. | 2016Background
- William Preston Hopper was convicted by a jury of continuous family violence (Tex. Penal Code § 25.11) based on assaults against two girlfriends, Sandra VanZant and Starla Green, between Oct. 1, 2013 and Feb. 1, 2014.
- The State alleged assaults by hitting and by impeding breathing with Hopper’s hands, and requested a deadly-weapon finding that Hopper’s hands were used or exhibited as a deadly weapon.
- Victims testified to being hit, choked or having hands over their nose/mouth; one described near-loss of consciousness and bruising/petechial hemorrhages consistent with manual strangulation.
- A forensic nurse expert testified that the injuries were consistent with strangulation and that hands can be used in a manner capable of causing death or serious bodily injury.
- Hopper challenged (1) prosecutorial comments on his failure to testify and (2) sufficiency of evidence for the hands-as-deadly-weapon finding; he also asserted in the alternative (first raised on appeal) that disqualification from good-conduct time as applied to his hands was unconstitutional.
- The court affirmed the conviction, overruled Hopper’s preserved and forfeited objections, held the deadly-weapon finding was supported by sufficient evidence, and sua sponte corrected the judgment to show the trial court assessed punishment.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hopper) | Held |
|---|---|---|---|
| Prosecutor’s closing comments on defendant’s silence | Comments were proper argument; no reversible error because defendant failed to obtain adverse ruling or move for mistrial | Comments improperly commented on Hopper’s failure to testify (Art. 38.08) | Forfeited/preserved objections overruled; Hopper forfeited some objections by not seeking instruction or mistrial; no reversible error |
| Sufficiency of evidence for deadly-weapon finding (hands) | Victim testimony, medical signs, and expert opinion supported that hands were used in a manner capable of causing death/serious bodily injury | Evidence insufficient: brief/limited obstruction of breathing and no conscious intent to use hands as deadly weapon; mens rea required; exhibit language unconstitutional as applied | Evidence sufficient under Texas law; jury could find hands used in manner capable of causing death or SBI; deadly-weapon finding upheld |
| Constitutional challenge to disqualification from good-conduct time (as-applied) | N/A (State opposed) | Words “or exhibited” as applied to hands violate due process/equal protection; not preserved on appeal | Not preserved (raised first on appeal and inadequately briefed); rejected for lack of preservation |
| Judgment error (punishment assessor) | N/A | Judgment incorrectly stated jury assessed punishment | Court modified judgment sua sponte to reflect trial court assessed punishment; affirmed as modified |
Key Cases Cited
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (standard for assessing sufficiency of evidence)
- Lane v. State, 151 S.W.3d 188 (Tex. Crim. App. 2004) (sufficiency review for deadly-weapon finding)
- McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000) (deadly-weapon definition requires capability in manner of use or intended use)
- Tucker v. State, 274 S.W.3d 688 (Tex. Crim. App. 2008) (no requirement that actor intend death or serious bodily injury for deadly-weapon finding)
- Turner v. State, 664 S.W.2d 86 (Tex. Crim. App. 1984) (hands/fist may be deadly weapons depending on manner used)
- Quincy v. State, 304 S.W.3d 489 (Tex. App.—Amarillo 2009) (factors supporting hands-as-deadly-weapon finding)
- Brown v. State, 716 S.W.2d 939 (Tex. Crim. App. 1986) (surrounding facts the jury may consider for deadly-weapon determination)
- Petruccelli v. State, 174 S.W.3d 761 (Tex. App.—Waco 2005) (application of sufficiency standard to deadly-weapon finding)