Aflirmed; Opinion Filed October 29, 2012.
In The
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iftI! Thtrirt of ixaa at atta
No. 05-11-01490-CR
DAVID LYNN ABRON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-7266-N
MEMORANDUM OPINION
Before Justices Bridges, Richter, and Lang
Opinion By Justice Lang
David Lynn Abron appeals from his conviction for aggravated assault with a deadly
weapon. In a single issue, appellant contends the evidence is legally insufficient to prove he
used a deadly weapon during the commission of the offense or that he threatened the
complainant. We affirm the trial court’s judgment. The background of the case and the evidence
admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We
issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the
law to be applied in the case is well settled.
BAcKGRouND AND Evnwr4cE PRESENTED
Appellant waived a jury and pleaded not guilty before the trial court to aggravated assault
with a deadly weapon, a knife. During the trial, Bobby Johnson testified he was retired and did
yard work for extra money. He kept lawn equipment in a shed in his back yard. On July 29,
2010, someone broke into the shed and stole some of his equipment. Johnson believed appellant
was the thief. To prevent another theft, Johnson put a chain and master lock on the shed door.
On July 30, 2010, Johnson awoke sometime between 2:00 a.m. and 3:00 a.m. to use the
bathroom. He saw two women standing on the street in front of his house. Johnson went out on
the front porch and “sat low in a chair” that was hidden by a rose bush. He watched the women
who were both talking on their cell phones. Suddenly, appellant walked from Johnson’s back
yard toward the front yard. Johnson testified he believed the women were lookouts for appellant
and were talking to appellant on their phones. When Johnson confronted appellant by asking
why he was coming from Johnson’s back — at that time in the morning the women ran off
Appellant said he was looking for his dog. Johnson testified his house has a “bricked-up wall”
that goes from the front yard along the side of the house to the back yard. Appellant did not have
permission to be anywhere on Johnson’s property. Johnson’s grandson Markel came outside to
see what was going on. When Markel walked toward appellant appellant pulled out a knife.
Johnson testified he saw a knife in appellant’s hand, and the knife was open.
Markel Johnson testified he heard his grandfather talking to someone outside in the
middle of the night. When he went outside to investigate Markel heard his grandfather ask
appellant what was he doing coming from the back — at two o’clock in the morning.
Appellant said he was looking for his dog. Markel testified he walked toward appellant
intending to “grab” him to await the police. Appellant pulled out a knife and said “get badc”
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Markel raised his hands and stepped away from appellant. Markel testified the knife was about
10 inches away” from him. Appellant held the knife low down by [appellant’sj waist.”
Market described the knit as “about that long,” and said it was the kind that “you flip in and out
but not a switchblade.” Markel testified he was “shocked” when appellant pulled out the
knife. Markel felt threatened because he believed appellant would cut him with the kiife.
The trial court found appellant guilty of aggravated assault with a deadly weapon.
Pursuant to an agreement between appellant and the State during the punishment phase, the trial
court assessed punishment at three years’ imprisonment.
APPLIcABI.E LAw
in reviewing a challenge to the sufficiency of the evidence, we examine all the evidence
in the light most favorable to the verdict and determine whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v. Viiginia, 443
U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894—95 (Tex. Crim. App. 201 1); Brooks v.
State, 323 S.W.3d 893, 895 (‘fex. Crirn. App. 2010) (plurality op.). We are required to defer to
the fact finder’s credibility and weight determinations because the fact finder is the sole judge of
the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443 U.S. at
326.
The State was required to prove beyond a reasonable doubt that appellant intentionally or
knowingly threatened Markel Johnson with imminent bodily injury, and appellant used and
exhibited a deadly weapon, a knife, during the commission of the assault. See TEx. PENAL CODE
ANN. § 22.0 l(a)(2), 22.02(a)(2) (West 2011). A deadly weapon means “anything that in the
manner of its use or intended use is capable of causing death or serious bodily injury.” TEx.
PENAL CODE ANN. § l.07(a)(17)(B) (West 2011). Objects that are not usually considered
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dangerous weapons may become so. depending on the manner in which they are used during the
commission of an offense. Thomas v. State. 821 S.W.2d 61 6, 620 (Tex. [rim. App. 1991). To
prove a particular knife is a deadly weapon, the State may produce testimony regarding the size
of the knife, the manner of its use, and its capability to cause serious bodily injury or death. See
B/am v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). In addition, the fact finder may
consider the words spoken by the appellant in making a deadly weapon finding. See id.
DISCUSSION
Appellant contends the evidence is insufficient to prove he used or exhibited a deadly
weapon because there was no evidence presented about the size, shape, or sharpness of the blade.
Appellant asserts that because no threatening words were spoken, nor did he threaten the
complainant with imminent bodily injury, the evidence is insufficient to support the conviction.
The State responds the evidence is sufficient to prove appellant used a deadly weapon during the
commission of the assault.
Johnson and Markel testified appellant pulled out a knife when Markel walked toward
appellant. Markel testified the knife was only ten inches away from him, and he felt threatened
when appellant pulled out the knife and ordered him to “get back.” Johnson saw the blade, and
Markel gave a description of the approximate size of the knife. Markel also described how
appellant held the knife. Viewing the evidence in the light most favorable to the verdict, we
conclude a rational trier of fact could have found, beyond a reasonable doubt, that appellant
intended to threaten Markel with imminent bodily injury when he pulled out the knife. Thus, the
evidence is sufficient to support the conviction. We resolve appellant’s sole issue against him.
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We affirm the trial court’s judgment.
Do Not Publish
TEx. R. App. P.47
II 1490F.U05
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JUDGMENT
DAVID LYNN ABRON, Appellant Appeal from the 195th Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-11-01490-CR V. F10-72686-N).
Opinion delivered by Justice Lang, Justices
TIlE STATE OF TEXAS, Appellee Bridges and Richter participating.
i3ased on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered October 29, 2012.
JUSTICE/ /