COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
LARRY CLAUDE POUNCY, )
) No. 08-04-00210-CR
Appellant, )
) Appeal from the
v. )
) 209th District Court
THE STATE OF TEXAS, )
) of Harris County, Texas
Appellee. )
) (TC# 959,670)
)
O P I N I O N
Appellant appeals his conviction for aggravated assault. After finding him guilty, the jury assessed a punishment of 17 2 years= confinement. On appeal, Appellant asserts that the evidence was legally and factually insufficient to support his conviction, and that the trial court committed error by denying his request for an instruction on a lesser-included offense of class C misdemeanor assault. We affirm.
On June 2, 2003, Dennis J. Barton and Kelly Lewis were working at the Buell Door
Company located at 330 West 38th Street in Houston, Texas. Mr. Lewis testified that he was in the back of the shop when he heard a noise at the back door of the building. He was about five feet from the back door. Outside, he saw a man, later identified as the Appellant, riding a bicycle and carrying an aluminum rod that had be stored on a rack outside the back door.
Mr. Lewis testified that the Appellant stopped and put the aluminum down after Mr. Barton said something to the Appellant. Appellant started walking away, and Mr. Lewis then picked up the piece of aluminum, while Mr. Barton followed the Appellant. Mr. Lewis testified that he was standing about five feet away from Mr. Barton when he heard Mr. Barton tell Appellant that he had to Aget on down the road.@ Appellant then pulled out from behind his back what Mr. Lewis described as a switchblade or sword. Appellant was holding the blade in his left hand, but he testified that Appellant was not pointing the blade at Mr. Barton, that he just pulled it out Appellant came toward Mr. Barton and said Ayou got your stuff, now leave me alone.@ Appellant then put his knife away, got his bike, and started walking down the set of tracks located near the building.
Mr. Barton also testified, recapping the same events. Mr. Barton testified that he asked the Appellant Awhat the hell he was doing@ and Appellant responded by telling Mr. Barton Adon=t worry about what I=m doing, you got your stuff back.@ Mr. Barton then told the Appellant that he had to Aget the hell on out of here.@ Appellant then pulled out a knife from behind his back, walked toward Mr. Barton with the blade exposed and told him in a serious manner, Adon=t tell me what to do.@ The Appellant came about sixteen feet away from Mr. Barton. Appellant was holding the knife in his left hand and was pointing the knife towards Mr. Barton.
As Appellant approached, Mr. Barton backed up to get a fence between him and the Appellant. He grabbed his cell phone and called his friends that were in the shop next door. As he was talking on the phone, Appellant turned around, put the knife away, got on his bike, and rode away. Mr. Barton then called the police.
In Issues One and Two, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Specifically, Appellant argues that the evidence was legally and factually insufficient to support the finding of the deadly weapon and imminent bodily injury elements of aggravated assault.
Standards of Review
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788‑89, 61 L. Ed. 2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421‑22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.
In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). There are two ways in which we may find the evidence to be factually insufficient. Zuniga, 144 S.W.3d at 484. Evidence is factually insufficient when the evidence supporting the verdict, considered alone, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 485. However, in our factual sufficiency review, we must give appropriate deference to the jury and should not intrude upon its role as the sole judge of the weight and credibility given to evidence presented at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 133. Accordingly, we are authorized to set aside the jury's finding of facts only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.2d at 135.
Aggravated Assault
A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. See Tex.Pen.Code Ann. ' 22.01(a)(2)(Vernon Supp. 2004‑05). Aggravated assault occurs if the person commits an assault under Section 22.01 and the person uses or exhibits a deadly weapon during the assault. See Tex.Pen.Code Ann. ' 22.02(a)(2). A deadly weapon is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex.Pen.Code Ann. ' 1.07(a)(17)(B)(Vernon Supp. 2004-05). It is settled that while not every type of knife is per se a deadly weapon, any knife can‑‑by virtue of its use‑‑become a deadly weapon. See, e.g., McCain v. State, 22 S.W.3d 497, 502‑03 (Tex.Crim.App. 2000). It is the use or exhibition of a deadly weapon, not the identification or the name of a particular type of knife, that is an element of aggravated assault. Tex.Pen.Code Ann. ' 22.02(a)(2). Factors to consider in determining whether a knife is a deadly weapon include the dimensions and sharpness of the knife, nature or existence of wounds, manner of its use, testimony of its life-threatening capabilities, and the physical proximity of the accused and the victim. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). The State is not required to offer the deadly weapon into evidence to meet its burden of proof. Victor v. State, 874 S.W.2d 748, 751 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d), citing Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. [Panel Op.] 1982). It is also not necessary that the knife inflict wounds. Birl v. State, 763 S.W.2d 860, 863 (Tex.App.--Texarkana 1988, no pet.); see Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App. 1986). Imminent means A>near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.=@ Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989); Cook v. State, 940 S.W.2d 344, 347 (Tex.App.--Amarillo 1997, pet. ref=d). Conditioning a threat of harm on the occurrence or nonoccurrence of a future event does not necessarily mean that threat is not imminent. Cook, 940 S.W.2d at 348.
Viewing the evidence in the light most favorable to the verdict, the evidence showed that on June 2, 2003, Appellant and Mr. Barton had a brief encounter wherein it is undisputed that Appellant brandished a knife. Mr. Barton testified that when he asked the Appellant to leave the property, Appellant responded by pulling out a knife and pointing it at Mr. Barton. Appellant then walked towards Mr. Barton and in a serious manner told Mr. Barton not to tell him what to do. Appellant approached to about sixteen feet from Mr. Barton. Mr. Barton described the knife as having a blade about a foot long and half-inch wide, with a yellow and brown handle.
Mr. Barton testified that when he saw the knife, he feared for his life and that he tried to keep himself apart from the Appellant. He testified that he thought Appellant could have hurt him, stabbed him, and caused him bodily injury. He also testified that he thought a knife could cause serious bodily harm or death to anyone. He further testified that he believed from where the Appellant was standing, Appellant could have taken the knife, thrown it at him, and hit him. On cross-examination, Mr. Barton agreed with Appellant=s counsel that from where the Appellant was standing, Appellant could not have cut him. Mr. Barton however did believe that he could have thrown the knife at him. When Appellant=s counsel asked him again if he agreed that from the distance the Appellant and he were standing, Appellant was not going to be able to cause him any injury, Mr. Barton responded that he was not going to give him a chance to do so. When asked a third time, Mr. Barton finally stated that Appellant would not be able to harm him from that distance.
Mr. Lewis testified that Appellant held the knife as if only to display it. But he also testified that Mr. Barton was in a better location to see the Appellant and that he was standing farther away from them. Officer Stephens testified that in his training, a knife is considered a deadly weapon.
Under our legal sufficiency standard of review, any inconsistencies in the evidence are resolved in favors of the verdict. See Matson, 819 S.W.2d at 843. The jury as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. From the testimony of Mr. Lewis and Mr. Barton, any rational trier of fact could have found that Appellant committed the deadly weapon and imminent bodily injury elements of aggravated assault with a deadly weapon beyond a reasonable doubt. We therefore concluded that the evidence was legally sufficient to sustain Appellant=s conviction.
The contradicting evidence was not so strong that the Abeyond a reasonable doubt@ standard could not have been met. The fact that Mr. Lewis=s and Mr. Barton=s testimony regarding how the knife was displayed was different does not make the verdict so against the overwhelming weight of the evidence as to be clearly wrong and unjust. There is nothing in the record to suggest that the jury=s resolution of this conflicting testimony was not reasonable given the fact that Mr. Lewis was further away from the Appellant. After reviewing all of the evidence in a neutral light, we hold that the evidence was sufficient to show the Appellant knowingly or intentionally threatened Mr. Barton with imminent bodily injury and that Appellant used a knife as a deadly weapon during the commission of the offense. We overrule Issues One and Two.
In Issue Three, Appellant contends that the trial court err in refusing to instruct the jury on the lesser-included offense of assault. We apply a traditional two‑prong test to determine whether Appellant was entitled to a charge on a lesser‑included offense. See Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App. 1998); Rousseau v. State, 855 S.W.2d 666, 672‑73 (Tex.Crim.App. 1993), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993); Heiringhoff v. State, 130 S.W.3d 117, 125‑30 (Tex.App.‑-El Paso 2003, pet. ref=d). First, we determine whether the offense is a Alesser included offense@ as defined in Article 37.09 of the Texas Code of Criminal Procedure, which in most cases require deciding whether the Alesser included offense must be included within the proof necessary to establish the offense charged . . . .@ Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); see Tex.Code Crim.Proc.Ann. art. 37.09 (Vernon 1981); Ramirez v. State, 976 S.W.2d 219, 226‑27 (Tex.App.‑-El Paso 1998, pet. ref=d). Second, the record must show some evidence that would permit a rational jury to find that if the defendant is guilty of an offense, he was guilty only of the lesser offense. Feldman v. State, 71 S.W.3d 738, 750‑51 (Tex.Crim.App. 2002).
The State does not contest that assault is a lesser included offense of alleged aggravated assault which requires use of a deadly weapon. Therefore, the lesser included offense instruction was required if there is some evidence that Appellant did not exhibit a deadly weapon. The Appellant did not testify at trial. It was undisputed that Appellant pulled out a knife from behind his back and some testimony that he pointed it at Mr. Barton. The mere exhibition of the knife was sufficient evidence of usage of a deadly weapon. See McCain, 22 S.W.3d at 503. There was no evidence in this record to support a finding that Appellant was only guilty of assault. Consequently, Appellant was not entitled to an instruction on a lesser-included offense of assault. See Feldman, 71 S.W.3d at 750-51. We therefore overrule Issue Three.
We affirm the trial court=s judgment.
August 11, 2005
DAVID WELLINGTON CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)