Affirmed and Memorandum Opinion filed July 6, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00326-CR
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JOHN ANTHONY WEBSTER, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 991,696
M E M O R A N D U M O P I N I O N
Appellant John Anthony Webster challenges his conviction of aggravated assault asserting legal and factual insufficiency of the evidence. We affirm.
I. Factual and Procedural Background
Appellant was charged by indictment with the felony offense of aggravated assault. The State alleged that appellant used a deadly weapon, a knife, in committing the offense. Appellant pleaded “not guilty” and waived his right to a trial by jury. At the bench trial that followed, the parties presented two completely different versions of the events.
Appellant’s former girlfriend, Carrie Rogers, is the complainant in the case. Ms. Rogers testified that appellant stabbed her with a knife. Before the stabbing, she had attempted to get a protective order against appellant, but had been unable to complete the process. She explained that she and her roommate, Lena Franklin had gone downtown to the courthouse for this purpose, but their mission was interrupted by a fire drill that required everyone to exit the courthouse. Instead of waiting for permission to re-enter the courthouse, Ms. Rogers and her friend decided to leave and return later to apply for the protective order.
When the women returned to their apartment complex, Ms. Franklin went up to the third floor to check on the apartment because appellant had broken into the apartment on several prior occasions. Ms. Rogers waited briefly on the second floor before going up to the apartment. When she arrived outside the apartment, she noticed that the door was cracked and the deadbolt had been pried open. Ms. Rogers told Ms. Franklin to remain outside the apartment, while she called the police from her cellular phone. While Ms. Rogers was on the phone with the police and her friend was standing just a few feet away, appellant jumped out from behind a wall with a five or six-inch long knife in his hand. Appellant grabbed Ms. Rogers by the hair, and said, “B----, I ought to kill you. I ought to kill you.” Ms. Rogers begged appellant to stop, but appellant replied, “No. B----, no,” and bent her over and stabbed her once in the back, under her left shoulder blade. Appellant then fled from the apartment complex and Ms. Rogers ran downstairs, toward her car. Shortly thereafter, an ambulance and the police arrived, and she was rushed to the hospital for medical treatment.
At trial, Ms. Franklin corroborated the events described by Ms. Rogers. Ms. Franklin stated that appellant jumped out at Ms. Rogers while Ms. Rogers was calling the police. According to Ms. Franklin, appellant grabbed Ms. Rogers’ hair and pinned her against the wall. She testified that appellant was carrying a “big, long knife,” which Ms. Franklin estimated to be about “nine or ten inches long.” When appellant pointed the knife toward Ms. Rogers, Ms. Franklin ran downstairs to get help. She asked a woman with a cellular phone to call 9-1-1. When Ms. Franklin returned to the third floor, she saw appellant stab Ms. Rogers in the back, leaving a wound from which blood was spurting. Ms. Franklin testified that appellant immediately ran away after the stabbing.
Appellant also testified at trial, but he presented a very different account of how the stabbing occurred. According to appellant, he went to the apartment complex to retrieve some belongings he had left behind after Ms. Rogers told him to move out. When he arrived he noticed that the apartment door was open. Appellant went to find a pay phone to call Ms. Rogers. However, on his way to the phone, he ran into Ms. Rogers and Ms. Franklin on the second floor landing. Appellant testified that when Ms. Rogers saw him, she dropped her keys on the ground and pulled a gun out, at which point he grabbed her by the shirt and said, “What are you trying to do? Are you trying to shoot me?” According to appellant, Ms. Rogers begged him not to hurt her while they struggled over the gun. Then, as Ms. Rogers threw herself against the wall, she accidently fell into a knife that appellant had pulled out of his pocket. Appellant stated that he then took this opportunity to get away. According to appellant, the knife was a small steak knife that he carried with him because he was a cook.
The second defense witness was Velma Wilson, appellant’s great-aunt. Ms. Wilson testified that Ms. Rogers called her two days after the incident and told her that she had fired a gun at appellant. Ms. Wilson also testified that Ms. Rogers told her that she accidentally backed into appellant’s knife. Testifying as a rebuttal witness for the State, Ms. Rogers denied calling Ms. Wilson, and denied firing a gun at appellant. Ms. Rogers testified that neither she nor Ms. Franklin fired any shots at appellant and that the stabbing was not accidental.
Upon hearing the above testimony, the trial court found appellant guilty of aggravated assault. During punishment, appellant pleaded “true” to the enhancement allegation and the trial court sentenced him to thirty years’ confinement in the Texas Department of Criminal Justice, Institutional Division.
II. Legal and Factual Sufficiency
In two issues, appellant asserts that the evidence is legally and factually insufficient to support his conviction. More specifically, he alleges that the State did not prove beyond a reasonable doubt that he used a deadly weapon, namely a knife, in the commission of the offense.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether 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). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484-85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481-82. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another; or he intentionally or knowingly threatens another with imminent bodily injury; or he intentionally or knowingly causes physical contact with another when the person knows or reasonably should believe that the other will regard the contact as offensive or provocative. Tex. Penal Code Ann. § 22.01. Assault becomes aggravated assault if the person committing assault causes serious bodily injury or uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02. The Penal Code does not require that the actor actually intend death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). An object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. Id. In this case, the indictment charged appellant with intentionally or knowingly causing bodily injury to Ms. Rogers. The aggravating factor was the use of the knife as a deadly weapon.
Appellant argues that the knife cannot be a deadly weapon under the statutory definition. The Penal Code defines a “deadly weapon” as either (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(a)(17) (Vernon Supp. 2005). A knife is not a deadly weapon per se or by design. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). However, a knife can be a deadly weapon if in the manner of its use or intended use it was capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17)(B); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Thus, a knife, as an “assaultive instrument,” may be considered a “deadly weapon” under the Penal Code’s second definition. See Herbert v. State, 631 S.W.2d 585, 586 (Tex. App.–El Paso 1982, no pet.).
Whether a particular knife is a deadly weapon by design, a deadly weapon by usage, or not a deadly weapon at all depends on the evidence of each individual case. Brown v. State, 716 S.W.2d 939, 947 (Tex. Crim. App. 1986). An essential question becomes whether there is sufficient evidence to show the actor used the knife or intended to use it in such a way that it was “capable of causing death or serious bodily injury.” Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978).
Factors considered in determining whether a knife is a deadly weapon in its use or intended use are: (1) the size, shape, and sharpness of the knife, (2) the manner of its use or intended use, (3) the nature or existence of inflicted wounds, and (4) the testimony of the knife’s life-threatening capabilities, if used. Thomas, 821 S.W.2d at 619. Also relevant are the surrounding circumstances of the knife’s usage, such as any threats by the defendant, the distance between the defendant and the victim, and any witness description of the knife. Wade v. State, 951 S.W.2d 886, 892 (Tex. App.—Waco 1997, pet. ref’d). Intent to cause serious bodily injury also may be shown by evidence of “assertive conduct” by the attacker wielding the knife. Id. at 892 n. 2. If other evidence indicates that the knife used in the
class=Section3>offense is a deadly weapon, there is no requirement that the victim sustain any injury. Ford v. State, 828 S.W.2d 525, 527 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd).
In contending that the knife is not a “deadly weapon,” appellant makes two main arguments. First, he states that under Danzig v. State, 546 S.W.2d 299 (Tex. Crim. App. 1977), the State was required to offer expert testimony establishing that the knife in question was a deadly weapon or could be used to inflict death or serious bodily injury. This argument lacks merit because the expert testimony requirement in Danzig was expressly overruled in Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978) (holding that Danzig is overruled insofar as it requires expert testimony to establish that a weapon is deadly). Thus, the State was not required to offer expert testimony to establish that the knife appellant used to stab Ms. Rogers was used as a deadly weapon. The testimony of Ms. Rogers and Ms. Franklin regarding the use of the knife was sufficient. See Revell v. State, 885 S.W.2d 206, 209 (Tex. App.–Dallas 1994, pet. ref’d) (concluding that “[a] person need not be wounded for a knife to be used as a deadly weapon. The State need not introduce expert testimony to establish the ‘deadly’ nature of a knife [although such evidence could be useful].”).
Appellant also points to a conflict in the testimony as to the length of the blade and the nature of the knife to argue that, while Ms. Rogers and Ms. Franklin described the knife as a butcher knife, somewhere between five and nine inches long, appellant and his great-aunt testified that the knife was a steak knife. Appellant also states that there was no testimony as to the sharpness of the knife, which he claims could have made a difference in the trial court’s finding that the knife was used as a deadly weapon.[1]
Appellant waived his right to a trial by jury and chose the trial court as the finder of fact. When sitting as the sole trier of fact, the trial court becomes the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). The trial court is authorized to accept or reject any or all of the testimony of the witnesses. Id. When faced with conflicting evidence on a defendant’s appeal of an adverse verdict, we presume the trier of fact resolved conflicts in favor of the prosecution. See Turro, 867 S.W.2d at 47. Thus, by affirmatively finding that the knife was a deadly weapon, the trial court chose to believe the State’s witnesses’ trial testimony over any discrepancies in other witnesses’ accounts.
Ms. Rogers and Ms. Franklin testified that appellant stabbed Ms. Rogers in the back with a butcher knife and that the blade of the knife was five to nine inches long. See De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.–Corpus Christi 1993, no pet.) (concluding that a rational trier of fact could have found that a “Rambo”-style knife was a deadly weapon). Ms. Franklin testified that the knife appeared to be “sharp.” Appellant also used threatening words and told Ms. Rogers that he “ought to kill her.” Ms. Rogers testified that she was scared and thought she was “fixin’ to die.” Even without injury,[2] presentment of the knife coupled with the fear of the victim are sufficient to constitute a threat by the accused. See Hatchett v. State, 930 S.W.2d 844, 848-49 (Tex. App.–Houston [14th Dist.] 1996, pet. ref’d) (noting that defendant’s threatening statement and close proximity were factors contributing to weapon’s deadliness); Billey v. State, 895 S.W.2d 417, 422 (Tex. App.–Amarillo 1995, pet. ref’d) (concluding that where the victim testifies that she was in fear of serious bodily injury or death, a verbal threat by the accused is not required for the fact finder to conclude that threats were actually made).
The record amply demonstrates that the evidence is legally and factually sufficient to support the trial court’s judgment. Based on the evidence adduced at trial, a rational trier of fact could conclude, beyond a reasonable doubt, that the knife appellant used in the stabbing was a deadly weapon. Further, the trial court’s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Zimmerman v. State, 754 S.W.2d 402, 405 (Tex. App.–Corpus Christi 1988, pet. ref’d) (holding evidence sufficient that kitchen carving knife was deadly weapon when knife’s blade was 6.5 inches long, sharpened, and pointed at tip; defendant threatened the victim with the knife, and victim felt knife’s sharpness and was afraid defendant would kill her). Accordingly, we overrule appellant’s two issues.
The trial court’s judgment is affirmed.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed July 6, 2006.
Panel consists of Justices Anderson, Edelman, and Frost.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] This statement is an incorrect assessment of the testimony given at trial. Ms. Franklin testified that the knife was big, long, and looked “sharp.”
[2] Appellant contends that because Ms. Rogers’ injury did not require staples or stitches, it was not a serious bodily injury. However, the law does not require the injury to be serious bodily injury, but only that the knife was used in a manner that could cause serious bodily injury or death. The nature of the inflicted wounds is only one factor among many. See Wade, 951 S.W.2d at 893 ( stating, “[w]ounds need not be inflicted before a knife can be found to be a deadly weapon.”); see also Hatchett v. State, 930 S.W.2d 844, 848-49 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that the State may prove particular knife used in assault to be deadly weapon by showing its size, shape, and sharpness, manner of its use or intended use, and its capacity to produce death or serious bodily injury).