IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 30, 2004
______________________________JACOB GROSS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 110TH DISTRICT COURT OF FLOYD COUNTY;
NO. 4137; HON. JOHN R. HOLLUMS, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant Jacob Gross challenges his conviction for aggravated assault through one issue. In it, he contends that the evidence was legally and factually insufficient to support a finding that the knife used by him during the assault was a deadly weapon. We overrule the issue and affirm the judgment of the trial court.
The Law
The applicable standards for legal and factual sufficiency are well settled and fully discussed in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We refer the parties to those opinions for an explanation of same.
When an indictment alleges that appellant "use[d] or exhibit[ed] a deadly weapon, to wit: a knife," the evidence must establish that the knife was actually deadly. Lockett v. State, 874 S.W.2d 810, 814 (Tex. App.--Dallas 1994, pet. ref'd). The Penal Code defines a "deadly weapon" as "anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or . . . 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(a)(17) (A) & (B) (Vernon Supp. 2004). Although a knife is not a deadly weapon per se, Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991), it may be shown to be so via evidence of its size, shape, sharpness, manner of use or intended use, and its capacity to produce death or serious injury. Billey v. State, 895 S.W.2d 417, 420 (Tex. App.--Amarillo 1995, writ ref'd). Additionally, evidence of the use of expressed or implied threats, the distance between the accused and the victim, and the victim's description of the knife are also indicia susceptible to consideration, id., as is evidence of wounds caused by the weapon. Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. 1980). Finally, while expert testimony regarding the deadly nature of a knife need not be produced to secure a conviction, it can nonetheless be useful. Davidson v. State, 602 S.W.2d at 273; Lockett v. State, 874 S.W.2d at 814.
Application of Law to Facts
As depicted by a scale picture of it which appears of record, the knife used on the female complainant at bar measured approximately twelve and one-half inches from blade point to handle end. The blade alone approximated six and one-half to seven inches long and was not only sharply pointed but also serrated in part. Moreover, the blade's edge was sufficiently sharp to cut the victim's hand as she attempted to push it away. Also of record is evidence that appellant held the weapon against his victim's throat and chin while verbally threatening to kill her. The presence of the weapon, its manner of use, and appellant's threats of death also caused the young lady to become so scared she eventually urinated in her pants. Finally, the local chief of police, who had been in law enforcement for 17 years and taught hunter education courses, replied that the instrument "definitely" was a deadly weapon when so asked by the prosecutor. Indeed, even appellant himself described the knife as a "big" one.
Unlike the case of Tisdale v. State, 686 S.W.2d 110 (Tex. Crim. App. 1984), upon which appellant relies, more appears of record here than the mere knife. Along with it, we have verbal threats coupled with implied threats. We have evidence of it being sharp enough to cut skin. We have evidence of its placement next to a body region through which arteries of blood and air crucial to life flowed. We have evidence of extreme fear cause by appellant and his knife. And we also have a witness expressly characterizing the knife as deadly. These indicia combined to allow a rational jury to conclude, beyond reasonable doubt, that the weapon was capable of causing death or serious bodily injury in the manner of its use or intended use. And, such a finding, when tested against the entire record, would be neither manifestly unjust or contrary to the overwhelming weight of the evidence. Given this, we conclude that the evidence is both legally and factually sufficient to permit a jury to lawfully find that appellant used or exhibited a deadly weapon during the assault.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Do not publish.
ing on it to permit the State to reopen its evidence to prove venue. Finding appellant’s point of error has not been preserved for our review, we affirm.
By a June 2006 indictment, appellant was charged with intentionally or knowingly possessing cocaine in an amount of one gram but less than four grams. The case proceeded to a trial before a jury following his plea of not guilty. Evidence showed that police found 3.8 grams of crack cocaine in a closet of a residence, and that appellant told officers he hid the cocaine there. Appellant testified at trial, denying knowledge of the cocaine in the residence. He admitted he confessed to officers he possessed the cocaine but testified he did so out of fear of another person.
After the State rested, appellant moved for an instructed verdict because the State had not presented evidence of venue. The State moved to reopen its case to do so. After taking a recess to review case law, the trial court granted the State’s motion over appellant’s objection. The State then recalled the investigator and established the events occurred in Nacogdoches County. Thereafter, the jury found appellant guilty as charged in the indictment and assessed punishment at confinement for a term of five years. As recommended by the jury, the trial court probated the sentence, placing appellant on community supervision for a term of five years. This appeal followed.
Appellant contends, through his appellate issue, that the trial court’s application of article 36.02 of the Texas Code of Criminal Procedure to permit reopening of the State’s case violated his right to due process of law guaranteed him through the Fourteenth Amendment to the United States Constitution. His argument relies primarily on the statements of the Court of Criminal Appeals in Peek v. State that some language of the statute is “inherently vague” and ambiguous. Peek v. State, 106 S.W.3d 72, 78 (Tex.Crim.App. 2003). After review of the record, we conclude that appellant’s challenge to the constitutionality of article 36.02 is not properly before us.
Article 36.02 states that the “court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). The Court of Criminal Appeals has noted that the article, although not expressly so limited, “has generally been applied in those cases where a party has moved to ‘reopen’ the evidence after he has rested or closed at trial.” Love v. State, 861 S.W.2d 899, 903 n.4 (Tex.Crim.App. 1993).
Challenges to the constitutionality of a statute take two forms: the statute is unconstitutional as it was applied to the defendant, or the statute is unconstitutional on its face. Barnett v. State, 201 S.W.3d 231, 232 (Tex.App.–Fort Worth 2006, no pet.), citing Fluellen v. State, 104 S.W.3d 152, 167 (Tex.App.–Texarkana 2003, no pet.). As we read appellant’s argument, he contends article 36.02 is unconstitutional as applied to him. Such a contention may not be raised for the first time on appeal, but must first be raised in the trial court. Barnett, 201 S.W.3d at 232, citing Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995). As noted, appellant objected to the State reopening its case to prove venue. Counsel stated, “I’d just like to object to allowing the State to reopen, and then I will request a running objection to any testimony.” The court granted his running objection. The objection did not assert the unconstitutional application of article 36.02, and so did not preserve that contention for appellate review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990) (objection on one legal theory will not support point of error on different theory).
Our conclusion is the same if we read appellant’s brief to assert that article 36.02 is unconstitutional on its face. Case law provides that a defendant is not required to raise in the trial court a constitutional challenge that the statute on which his conviction is based is facially invalid, but may raise such a challenge for the first time on appeal. Barnett, 201 S.W.3d at 232, citing Garcia v. State, 887 S.W.2d 846, 861 (Tex.Crim.App. 1994), cert. denied, 514 U.S. 1005, 115 S. Ct. 1317, 131 L. Ed. 2d 198 (1995). Appellant’s conviction is based on § 481.115(c) of the Health & Safety Code, not on article 36.02, which simply addresses procedure for the taking of testimony at trial. Appellant’s constitutional challenge to the procedural statute must first have been raised at trial, even if he is contending it is unconstitutional on its face. See Lasher v. State, 202 S.W.3d 292, 295 (Tex.App.–Waco 2006, pet. ref’d); Barnett, 201 S.W.3d at 232; McGowan v. State, 938 S.W.2d 732, 739 (Tex.App.–Houston [14th Dist.] 1996) (op. on reh’g), aff’d on other grounds, Weightman v. State, 975 S.W.2d 621 (Tex.Crim.App. 1998); Webb v. State, 899 S.W.2d 814, 818 (Tex.App.–Waco 1995, pet. ref’d) (all discussing application of error preservation rules to constitutional challenges).
Having concluded appellant’s point of error was not preserved for our review, we overrule it and affirm the judgment of the trial court.
James T. Campbell
Justice
Publish.