TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00173-CR
Fernando Cruz, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. D-1-DC-11-201926, HONORABLE CLIFFORD BROWN, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Fernando Cruz guilty of aggravated assault with family
violence and found that he used or exhibited a deadly weapon—a knife—in committing the offense.
The trial court found an enhancement paragraph to be true and assessed sentence at five years
in prison. See Tex. Penal Code § 22.02(a)(2). Appellant contends on appeal that the evidence was
insufficient to support the jury’s finding that he intended to use the knife in a manner capable
of causing death or serious bodily injury. He also contends that his counsel rendered ineffective
assistance because he failed to object to the State’s impeachment of his sole witness without proof
that the witness’s arrest led to a final conviction. We affirm the judgment.
Was the evidence sufficient to support the deadly-weapon finding?
The jury found that appellant threatened his estranged wife, C.C., and in doing so
used or exhibited a knife that in the manner of its use or intended use was capable of causing death
or serious bodily injury. See id. § 1.07(a)(17)(B). Appellant contends that the evidence showed that
he did not open the folded knife and, therefore, that the manner of the knife’s use or intended use
was not capable of causing death or serious bodily injury.
When reviewing the sufficiency of the evidence, we consider all the evidence in the
light most favorable to the verdict to decide whether any rational trier of fact could find the essential
elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The jury is the sole judge of the credibility and weight to be attached to the testimony of witnesses.
Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 326).
We presume that the jury resolved any conflicting inferences in favor of the verdict and we defer to
those resolutions. Id.
C.C. testified that she dropped their son off at a baseball practice and then drove to
a store to buy him a sports drink. As she returned, appellant called her on the telephone, angry that
their son had arrived late. She testified that, when she got to the baseball field, appellant approached
her in the parking lot and spoke to her in an angry tone but did not yell. She testified that appellant
stood close enough to her that he touched her, pulled a closed knife out and put it beside her,
called her a bitch, and said, “You want me to threaten life on you?” She testified that she told
peace officers that meant he threatened her with violence. She testified that appellant also threatened
to kill her father. C.C. described the knife as having a button, said that appellant had his finger on
the button, and called it “like a switch, I guess, a switch blade the ones that just go like that.” She
agreed, however, that a person wanting to use the knife would have to flip open the blade.
The Travis County Sheriff’s deputies who came to the scene also testified. Deputy
Peter Burke testified that C.C. told him that appellant leaned against her, pulled the knife out of his
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pocket, showed it to her, and asked if she wanted him to threaten her with violence. He found a
folding lockblade knife in appellant’s front pocket. Deputy Antonio Aguilar testified that C.C. told
him that appellant had pressed the knife against her. He testified that the knife’s blade was three to
four inches long and “slides out on the side.” He testified that the knife was capable of causing
serious injury or death. Aguilar used both hands to open and close the knife.
Appellant’s witness, Angselee Bibb-Serrano, testified that she saw the confrontation
between appellant and C.C., but did not see appellant get close to C.C. or use a knife at all.
Appellant concedes that, if the knife is open, it is capable of being used as a deadly
weapon. But he argues that because—even accepting C.C.’s testimony as true—the knife was
undisputedly folded closed, the evidence did not show that the knife was capable of causing death
or serious bodily injury in the manner it was used or intended to be used. He argues that the knife
was “wholly incapable of causing serious bodily injury or death unless the blade is disengaged from
the handle.” He contends that, viewed most favorably to the jury’s verdict, the evidence shows that
he used the knife to frighten C.C. but not in a manner capable of causing serious bodily injury.
In McCain v. State, the court of criminal appeals considered the sufficiency of the
evidence to support a jury’s finding that a defendant used or exhibited a deadly weapon. 22 S.W.3d
497, 499 (Tex. Crim. App. 2000). The defendant kicked in a kitchen door and hit the victim
numerous times with his fist. Id. He had in his back pocket a long, dark object that the victim
believed was a knife and feared that the defendant would use to cut her. The court of criminal
appeals wrote, “There was no evidence that appellant touched, brandished, referred to, or overtly
displayed the knife in any way other than having it partly sticking out of his pocket.” Id. When the
defendant was arrested, he had a knife with a nine-inch blade. Id. The court of appeals reversed the
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deadly-weapon finding because there was no form of threatening conduct relating to it other than
merely carrying it. Id.1 The court of criminal appeals wrote:
The provision’s plain language does not require that the actor actually intend death
or serious bodily injury; 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.
The placement of the word “capable” in the provision enables the statute to cover
conduct that threatens deadly force, even if the actor has no intention of actually
using deadly force.
Id. at 503. The court of criminal appeals reversed the court of appeals’s judgment, concluding that
“the mere carrying of a butcher knife during such a violent attack as occurred in the present case
was legally sufficient for a factfinder to conclude that the ‘intended use’ for the knife was that it
be capable of causing death or serious bodily injury.” Id. The fact that the knife was visible in the
defendant’s pocket was sufficient use or exhibition for the deadly-weapon finding. Id. Although
mere possession was not enough, the weapon was used in facilitating the underlying crime. Id.
Unlike in McCain, there is no evidence that appellant struck C.C. with his fist
or did anything similarly violent. Like the defendant in McCain, appellant never unsheathed the
blade itself. But, unlike in McCain, evidence showed that appellant intentionally held the closed
knife against C.C. while he threatened her with violence. We conclude that the closed knife, placed
against a person’s body to emphasize a threat of violence or homicide, is at least as capable of
causing serious bodily injury as a knife that is kept in a pocket and never referred to during a violent
1
Citing the court of appeals opinion, McCain v. State, 987 S.W.2d 134, 137-138
(Tex. App.—Houston [14th Dist.] 1998), rev’d, 22 S.W.3d 497, 499 (Tex. Crim. App. 2000).
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attack. Under McCain, we conclude that the evidence is sufficient to support the jury’s finding that
appellant used a deadly weapon when threatening C.C.
Did defense counsel render ineffective assistance?
Appellant contends that his counsel was ineffective because he failed to object to the
admission of evidence at the guilt-innocence phase of trial of the only defense witness’s alleged
criminal history. An appellant complaining of ineffective assistance must show by a preponderance
of the evidence that (1) counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Salinas v. State, 163 S.W.3d 734, 740
(Tex. Crim. App. 2005). An accused is not entitled to entirely errorless representation, and we look
to the totality of the representation in gauging the adequacy of counsel’s performance. Frangias
v. State, 392 S.W.3d 642, 653 (Tex. Crim. App. 2013). A single instance of counsel’s error can rise
to the level of deficient performance,“if the error was egregious and had a seriously deleterious
impact on the balance of the representation.” Id. We indulge a strong, rebuttable presumption that
counsel’s actions fell within the wide range of reasonable and professional assistance. Salinas,
163 S.W.3d at 740. Appellate courts will rarely find ineffective assistance on a record that is silent
as to counsel’s trial strategy. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003).
Yet even on a silent record, a finding of ineffective assistance of counsel is appropriate if the
challenged conduct was so outrageous that no competent attorney would have engaged in it.
Andrews v. State, 159 S.W.3d 98, 102-03 (Tex. Crim. App. 2005). If we find counsel’s performance
deficient, we must also determine whether there is a reasonable probability sufficient to undermine
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confidence in the outcome that, but for counsel’s deficiency, the result of the proceeding would have
been different. Strickland, 466 U.S. at 694.
Appellant’s sole witness at guilt-innocence, Bibb-Serrano, testified that she saw a
confrontation between appellant and C.C. in the baseball-field parking lot. She said that appellant
was standing carrying a watermelon and that C.C. stayed in her vehicle. Bibb-Serrano testified
that she heard them yelling unpleasantries at each other, but did not hear a threat, see appellant get
close to C.C., or see a knife. Bibb-Serrano also testified that she did not know C.C., had known of
appellant, and did not like appellant. Bibb-Serrano was the only witness whose testimony conflicted
significantly with C.C.’s version of events.
Appellant complains that his counsel did not object when the court allowed the State
to question Bibb-Serrano about whether she had been arrested in Florida for theft—a crime of moral
turpitude that can be used to impeach a witness. See Tex. R. Evid. 609(a). The State first questioned
her outside the presence of the jury and then, after the court concluded Bibb-Serrano had indicated
that she was convicted of some kind of theft-related offense, in the jury’s presence. She testified that
she had been arrested for taking a book from a store and many other items from other stores. She
said that the charges were at first felonies, but then were changed because she did not steal the other
items and had mistakenly believed that the book was hers. She said she never went before a judge
and was not convicted, but admitted that her attorney told her she could not get into trouble for a
month. The State did not offer any documentation of any conviction.
We conclude that appellant has not shown his trial counsel provided ineffective
assistance. During the voir dire examination of Bibb-Serrano, he interjected that he “did not hear of
any conviction,” after which the State asked more questions that elicited Bibb-Serrano’s uncertainty
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regarding the details of the prosecution of her alleged offenses. Counsel did not object at trial
minutes later—perhaps not wanting to risk alienating the judge or jury by objecting to evidence
already ruled admissible. Even if not objecting to the impeachment evidence was a mistake,
appellant has not shown either that this mistake was so egregious that competent counsel would
not have engaged in it or that this single incident rendered counsel’s entire assistance ineffective.
In addition to calling Bibb-Serrano, the only eyewitness not directly involved in the altercation,
appellant’s trial counsel filed numerous pretrial motions, participated in voir dire, examined
witnesses, ensured that the court had included an instruction on his right not to testify, and called
several witnesses at punishment. We conclude that appellant has not rebutted the presumption that
his counsel’s representation fell within the wide range of reasonable and professional assistance, and
thus that appellant has not shown that he received ineffective assistance of counsel.
CONCLUSION
We affirm the judgment of conviction.
__________________________________________
Jeff Rose, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Affirmed
Filed: May 8, 2014
Do Not Publish
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