Esau Poree v. State

ACCEPTED
03-16-00561-CR
14520728
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/3/2017 12:29:17 AM
JEFFREY D. KYLE
CLERK

No. 03-16-00561-CR
FILED IN
3rd COURT OF APPEALS
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
AT AUSTIN, TEXAS 1/3/2017 12:29:17 AM
JEFFREY D. KYLE
Clerk

ESAU POREE

Defendant – Appellant
vs.

THE STATE OF TEXAS

Plaintiff – Appellee

On Appeal from the 167 th District Court of Travis County, Texas
Hon. P. David Wahlberg Presiding
Trial Court Nos. D-1-DC-15-301805

APPELLANT’S BRIEF

Gregory Sherwood
Attorney
P.O. Box 200613
Austin, Texas 78720-0613
(512) 484-9029
Email: gsherwood@mail.com
State Bar No. 18254600

Court-Appointed Attorney on
Appeal for Esau Poree
 Identity of Parties and Counsel

No. 03-16-00561-CR; Esau Poree v. The State of Texas

Esau Poree (Defendant – Appellant):

Esau Poree
TDCJ # 2083174
Estelle Unit
264 FM 3478
Huntsville, Texas 77320-3220

Trial Counsel: Appellate Counsel:

Keith T. Lauerman (appointed) Gregory Sherwood (appointed)
107 N. Lampasas Street P.O. Box 200613
Round Rock, Texas 78664 Austin, Texas 78720-0613

Julie E. Pennington (appointed)
910 West Avenue, Unit 16
Austin, Texas 78701

The State of Texas (Plaintiff – Appellee):

Victoria R. Winkeler (trial)
Marc A. Chavez (trial)
Travis County Assistant District Attorneys
P.O. Box 1748
Austin, Texas 78767

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 Table of Contents

Identity of Parties and Counsel ........................................................................ i

Table of Contents ............................................................................................ ii

Index of Authorities ....................................................................................... iii

Statement of the Case ...................................................................................... v

Statement Regarding Oral Argument ............................................................. vi

Issue Presented ............................................................................................... vi

The deadly weapon finding was supported by legally
insufficient evidence, and should be removed from the
trial court’s judgment, which would result in a conviction
for assault only, and a new punishment hearing at the
enhanced class A misdemeanor range of 90 days to one year ............. vi

Statement of Facts ........................................................................................... 1

Summary of the Argument ............................................................................ 12

Argument and Authorities ............................................................................. 13

Standard of Review and Legal Authorities ......................................... 13

Conclusion and Prayer for Relief .................................................................. 19

Certificate of Service .................................................................................... 19

Certification of Word Count Compliance ..................................................... 20

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 Index of Authorities

Cases

Alexander v. State, No. 03-10-00416-CR
(Tex. App. – Austin 2011, pet ref’d)
(not designated for publication) .................................................................... 17

Brooks v. State, 923 S.W.3d 893 (Tex. Crim. App. 2010) ............................ 14

Burks v. United States, 437 U.S. 1 (1978) .................................................... 13

Cates v. State, 102 S.W.3d 735 (Tex. Crim. App. 2003) .............................. 13

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000) ............................... 14

Davidson v. State, 602 S.W.2d 272 (Tex. Crim. App. 1980) ........................ 15

Garrett v. State, 298 S.W.3d 945 (Tex. Crim. App. 1957) ..................... 16, 17

Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................... 13

Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008) ........................... 14

Limuel v. State, 568 S.W.2d 309 (Tex. Crim. App. 1978) ............................ 15

McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000) ............................ 15

Murphy v. State, No. 01-08-00768-CR
(Tex. App. – Houston [1 st Dist.] 2010, pet. ref’d)
(not designated for publication) .................................................................... 13

Thomas v. State, 821 S.W.2d 616 (Tex. Crim. App. 1991) .......................... 16

Statutes and Rules

Tex. Pen. Code § 1.07(a)(17)(A) .................................................................. 15

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Tex. Pen. Code § 1.07(a)(17)(B) .................................................................. 14

Tex. Pen. Code § 1.07(a)(46) ........................................................................ 15

Tex. Pen. Code § 12.43(a) ........................................................................ 2, 18

Tex. Pen. Code § 22.01(a)(1) ........................................................................ 14

Tex. Pen. Code § 22.01(b) ........................................................................ 2, 18

Tex. Pen. Code § 22.01(b)(2) .......................................................................... 2

Tex. Pen. Code § 22.01(b-1) ........................................................................... 2

Tex. Pen. Code § 22.02(a)(2) ........................................................................ 14

Tex. R. App. P. 9.4(i)(1) ............................................................................... 20

Tex. R. App. P. 43.2(b) ................................................................................. 18

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 No. 03-16-00561-CR

IN THE THIRD COURT OF APPEALS
AT AUSTIN, TEXAS

ESAU POREE

Defendant – Appellant

vs.

THE STATE OF TEXAS

Plaintiff – Appellee

On Appeal from the 167 th District Court of Travis County, Texas
Hon. P. David Wahlberg Presiding
Trial Court No. D-1-DC-15-301805

APPELLANT’S BRIEF

TO THE HONORABLE THIRD COURT OF APPEALS:

NOW COMES ESAU POREE, who files Appellant’s Brief,

respectfully stating as follows:

Statement of the Case

This is an appeal from a jury verdict which convicted Esau Poree of

aggravated assault with a deadly weapon, with an affirmative finding that a

v
knive was used as a deadly weapon. Clerk’s Record (“CR”) 92. After

hearing punishment evidence, the jury reached a punishment verdict of 45

years with no fine, finding that three enhancement paragraphs were true. CR

108. The judgment of conviction containing these terms of the jury’s verdict,

which also impose court costs of $284, is CR 110-112.

Statement Regarding Oral Argument

Appellant’s court-appointed counsel does not request oral argument

since the issue raised in this brief may be adequately determined based upon

the record and briefs. If the panel assigned to hear this appeal disagrees or

has questions that are not answered by the briefs, then appellant’s counsel can

appear for oral argument.

Issue Presented

The deadly weapon finding was supported by legally
insufficient evidence, and should be removed from the trial
court’s judgment, which would result in a conviction for assault
only, and a new punishment hearing at the enhanced class A
misdemeanor range of 90 days to one year.

vi
 Statement of Facts

This appeal presents the question of whether there was legally

insufficient evidence to support the jury’s affirmative finding that a deadly

weapon was used in this offense, when the knife was a box-cutter style knife

with cutting surface of only 3/4 inch to one inch, none of the officers who

testified at trial were asked whether this type of knife was capable of causing

death or serious bodily injury, and the complaining witness stayed in the

hospital less than two hours with his injury requiring only some stitches.

Appellant Esau Poree was indicted for aggravated assault with a deadly

weapon, a second degree felony, for an incident arising out of an early

morning altercation on August 12, 2015 at the corner of Seventh and Neches

Streets near the Austin Resource Center for the Homeless (“ARCH”). RR

vol. 5, p. 22, l. 4-6, and CR 15-16. The indictment charged Mr. Poree with

“intentionally, knowingly, or recklessly caus[ing] bodily injury to SEAN

JACKSON by CUTTING SEAN JACKSON WITH A KNIFE,” and stated

that Poree used or exhibited a deadly weapon, “A KNIFE,” during the

commission of this offense. CR 15. The indictment contained three

enhancement paragraphs identifying appellant’s prior convictions from

Harris, Wichita and Bell Counties as grounds for increasing the punishment

1
range from a second degree felony (2 to 20 years), to a first degree felony

with a minimum sentence of 25 years and maximum of 99 years or life. CR

15-16. If this case had been charged as an assault only, without the

aggravating factor of use or exhibition of a deadly weapon, then the assault

offense would have been a class A misdemeanor under Tex. Pen. Code §

22.01(b), with an enhanced punishment range of 90 days to one year based

upon one prior felony conviction. Tex. Pen. Code § 12.43(a).1

At the jury trial of this case, the State presented the testimony of five

(5) police officers, four (4) of whom responded to the scene, the complaining

witness Sean Jackson, and his former girlfriend, Tamika Entzminger Gilbert.

None of these witnesses was asked whether the knife that was used to injure

Mr. Jackson, which was a box-cutter style knife with a cutting surface of 3/4

inch to one inch, RR vol. 5, p. 165, l. 13-14, was capable of causing death or

serious bodily injury. An image of the box-cutter style knife can be seen on

State’s Ex. 8, Austin Police Department Officer Louis Holland’s body

camera video, at the 2:55 mark of the exhibit. The box-cutter style knife

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Appellant’s prior convictions for aggravated assault with a deadly weapon
and sexual assault, stated in the indictment, do not qualify to enhance a
class A misdemeanor assault offense to a felony punishment range under
Tex. Pen. Code § 22.01(b)(2) or (b-1) because both of those subsections
require that the defendant be in some relationship or association defined in
the Family Code. No such relationship exists between appellant and
Jackson.

2
itself was admitted as State’s Ex. 9. RR vol. 5, pp. 142-143. According to

Officer Holland, the box-cutter style knife was removed from appellant’s

pocket at the scene when he was arrested, and it was the kind of knife that

folded away. RR vol. 5, p. 129. The trial court noted outside the jury’s

presence that the cutting surface was 3/4 inch to one inch. RR vol. 5, p. 165,

l. 13-14.

Austin Police Department Officer John Evers testified that on August

12, 2015, he responded to a “hotshot call” at the ARCH at about 4:00 or 4:30

a.m. RR vol. 5, pp. 21 and 24. When Evers arrived at the scene, there were

two other officers there and they had a person in custody. RR vol. 5, p. 24, l.

12-16. Officer Evers spoke to Sean Jackson, who suffered a laceration to his

right thumb, and Mr. Jackson was transported to the Brackenridge Hospital’s

emergency room for treatment. RR vol. 5, pp. 27-28. Evers described the

injury as “a fairly long incision,” and a photograph of Jackson’s injury that

Evers took that night was admitted as State’s Ex. 3. RR vol. 7, p. 11.

Medical records regarding Mr. Jackson’s injuries were admitted as

State’s Ex. 6 (EMS records - RR vol. 7, pp. 17-25), and State’s Ex. 7

(Brackenridge records - RR vol. 7, pp. 26-75). No medical testimony was

presented by the State at trial concerning the seriousness of Mr. Jackson’s

3
injuries. As for any evidence on this subject contained in the medical

records, the EMS records stated in part, “[Jackson] was assaulted by a

stranger who cut his hand right above the wrist. [Jackson] has lost about 200

ml of blood. Laceration is about 1/8 inch deep and about 3 in. long. . . .

Physical exam is otherwise unremarkable.” RR vol. 7, p. 20 (EMS records p.

3 of 8 at State’s Ex. 6). No evidence was presented as to whether a loss of

200 ml of blood could be a serious bodily injury.

The Brackenridge Hospital records showed in part that Mr. Jackson

arrived at 4:59 a.m. on August 12, 2015, and he was discharged at 6:46 a.m.

that same date, less than two hours later. RR vol. 7, p. 30 (Brackenridge

records p. 4 of 49 at State’s Ex. 7). Jackson left the hospital with “steady gait

and all belongings in no apparent distress.” RR vol. 7, p. 27 (Brackenridge

records p. 1 of 49 at State’s Ex. 7). The post-care instructions were that

Jackson should return in two weeks for suture removal. RR vol. 7, pp. 30-31

(Brackenridge records pp. 3-4 of 49 at State’s Ex. 7). The hospital records

defined a laceration as “a cut through the skin. This will usually require

stitches (sutures) or staples if it is deep.” RR vol. 7, p. 33 (Brackenridge

records p. 7 of 49 at State’s Ex. 7). By the time Mr. Jackson arrived at the

hospital, “no bleeding [was] noted.” RR vol. 7, p. 46 (Brackenridge records

4
p. 20 of 49 of State’s Ex. 7).

Austin Police Department Officer Shawn Williams, who worked in the

Real Time Crime Center on August 12, 2015, discussed the two or three

cameras that are located by the ARCH, which are part of the camera network

in downtown Austin that police officers monitor for trouble or criminal

activity. RR vol. 5, pp. 39-43. Officer Williams located the footage of this

incident, which was admitted as State’s Ex. 5. RR vol. 5, pp. 43-45.

Austin Police Department Office Robert Anderson testified that he

responded to the August 12, 2015 “hotshot call,” he was the first officer on

the scene, and that when he arrived, someone yelled at him, “That’s the

dude,” and pointed at a person. RR vol. 5, pp. 102-108. Anderson told the

man to stop, the man looked Anderson and kept on walking, and when the

officer said stop again, the man stopped. RR vol. 5, p. 110. Officer

Anderson ordered the man to get to his knees, but he did not do that, and

instead began running after “fiddling” with his backpack. RR vol. 5, pp. 111-

112. Anderson pulled his TASER, chased the man, and ultimately tased him,

resulting in the man falling onto the sidewalk and rolling into the street. RR

vol. 5, p. 112. Officer Anderson identified appellant in court as the man that

he tased on August 12, 2015. RR vol. 5, pp. 115-116.

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 Austin Police Department Officer Louis Holland testified that he was

on patrol that night, it took him about one minute after receiving the call to

reach the scene, and that when he arrived, Officer Anderson had already

deployed his TASER and the subject was on the ground. RR vol. 5, p. 125, l.

7-15. Anderson assisted in handcuffing appellant, and searched him incident

to the arrest for any contraband or weapons. RR vol. 5, p. 125, l. 15-24.

Officer Anderson identified appellant in court as the person that he

handcuffed and searched that night, and as the person who was depicted in

State’s Ex. 8, his body camera video from that night, which was admitted

without objection. RR vol. 5, pp. 127-128. At about 2:55 of State’s Ex. 8,

the viewer can see the box-cutter style knife that was found on appellant,

which Anderson described as a kind of knife that folds away. RR vol. 5, pp.

129.

Austin Police Department Officer Nathan Wagner testified that he was

on patrol that evening, and when he arrived at the scene, he assisted in

handcuffing the person on the ground. RR vol. 5, pp. 136-139. Officer

Wagner took custody of appellant’s property, but did not search his person.

RR vol. 5, pp. 139-140. Wagner identified the box-cutter style knife,

admitted without objection as State’s Ex. 9, RR vol. 5, pp. 142-143, as the

6
knife found on appellant that evening, stated that it had a removable razor

blade, and agreed that if a witness said that a blue box-cutter was used to cut

Jackson, this box-cutter style knife would be consistent with that description.

RR vol. 5, pp. 143-144.

Tamika Entzminger Gilbert testified that Sean Jackson used to be her

boyfriend, that they met in 2014, got together in 2015, dated until October 4,

2015, and that she had not communicated with him since. RR vol. 5, pp. 49-

50. On the evening of August 11, 2015, and the early morning of August 12,

2015, Ms. Gilbert and Sean Jackson were outside the ARCH, sitting in chairs

with their backs against the ARCH wall. RR vol. 5, pp. 52-53. Ms. Gilbert

identified State’s Ex. 2 as a photograph of Mr. Jackson as he appeared then.

RR vol. 5, p. 53. Jackson’s nickname was “G-Man,” and a man Ms. Gilbert

knew only as “NO” approached Jackson and said, “You have a hit out on

me.” RR vol. 5, pp. 54-55. Jackson did not respond, and just looked at

Gilbert. RR vol. 5, p. 55. “NO” then said, “I heard you had a hit on me.

Two young dudes said that[,]” RR vol. 5, p. 56, and Ms. Gilbert said that two

men approached and said, “No, we wasn’t talking about [Sean Jackson].” RR

vol. 5, pp. 56-57.

Gilbert then testified that “NO” had a blue box cutter in his hand, and

7
he “went to hurt” Sean Jackson, but Jackson blocked the box cutter with his

arm. RR vol. 5, p. 57. Mr. Jackson was seated in his chair, and “NO” was

standing the entire time over Jackson. RR vol. 5, pp. 57-58. Jackson ran

away, and Ms. Gilbert did not know that he was bleeding until five minutes

later. RR vol. 5, pp. 58-59. Gilbert testified that she saw some blood where

they were sitting. RR vol. 5, pp. 59-60. Ms. Gilbert stated that she saw the

police chasing “NO,” and that “NO” was tased. RR vol. 5, p. 60, l. 17-20.

Gilbert was not asked to identify appellant in court as “NO.” Instead, Ms.

Gilbert stated that the person who approached her and “G-Man” (Jackson)

when they were sitting at the ARCH wall that night was the same person who

was tased by the police. RR vol. 5, p. 60, l. 21-25. Ms. Gilbert viewed the

video of the camera near ARCH, admitted as State’s Ex. 5, identified the

place where she and Sean Jackson were sitting, stated that Jackson was

wearing a red shirt, and described to the jury what was happening on the

video as it was played in court. RR vol. 5, pp. 62-63.

Sean Jackson, who was incarcerated and serving a two year sentence

for selling “kush” (synthetic marijuana, RR vol. 5, p. 87, l. 9-10), at time of

trial, RR vol. 5, pp. 87-88, and who admitted using “kush” that night, RR vol.

5, p. 90, testified that he knew a person who goes by “NO,” and identified

8
appellant Poree in court as “NO.” RR vol. 5, pp. 83-84 and 91, l. 15-19.

Jackson admitted that something happened with “NO” on August 12, 2015 in

front of the ARCH, with Jackson’s hand being cut by “NO,” who swung a

razor which Mr. Jackson blocked with his arm. RR vol. 5, pp. 84-85.

Jackson admitted that State’s Ex. 2 was a photograph of him that from that

time, and that State’s Ex. 3 was a photograph of his injury. RR vol. 5, p. 84.

Jackson informed the jury that an ambulance took him to Brackenridge

Hospital, where he was treated, and that he received stitches, but he did not

remember how many. RR vol. 5, p. 86. Although Jackson used “kush” that

night, he testified that it only made him high, and that it did not affect or

“cloud” his memory. RR vol. 90-91.

After the State rested, RR vol. 5, p. 149, l. 5, and the defense rested

without presenting any witnesses or evidence, RR vol. 5, p. 151, l. 17-25,

both sides closed, and the jury was sent to the jury room prior to reading of

the charge and closing argument. RR vol. 5, p. 152. With the jury outside

the courtroom, appellant moved for a directed verdict arguing that the State

had produced legally insufficient evidence that Mr. Poree knowingly or

intentionally caused bodily injury, and that motion was denied. RR vol. 5,

pp. 152-153.

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 The trial judge noted that he had some questions about whether

sufficient evidence was presented to show that the box-cutter style knife was

a deadly weapon, and appellant’s trial counsel replied that he was not sure

any evidence was presented that the knife was a deadly weapon or even used

as a deadly weapon. RR vol. 5, p. 153, l. 8-12. The trial court asked if there

were any medical reports stating that Jackson’s injuries constituted serious

bodily injury, and the prosecutor replied that there were none. RR vol. 5, p.

153, l. 14-25. The trial judge stated that ordinarily he would have expected

some evidence from witnesses that the box-cutter style knife was capable of

causing death or serious bodily injury, and the prosecutor admitted that this

specific question was not asked to any witness. RR vol. 5, p. 154, l. 1-14.

The prosecutor argued that State’s Ex. 5, the video from the camera near the

ARCH, presented enough evidence for a fact finder to determine whether the

box-cutter style knife was a deadly weapon. RR vol. 5, p. 154, l. 15-25.

After a break was taken so that the parties could research this issue,

with the trial judge identifying cases that he had found on this subject, RR

vol. 5, p. 155, the prosecutor argued that the actual knife was in evidence,

that State’s Ex. 5 showed someone lunging at Jackson, and that there was a

photograph of Mr. Jackson’s injury and medical records on that injury, and

10
that all of this constituted sufficient evidence for the jury to determine

whether a deadly weapon was used. RR vol. 5, pp. 156-157. There was

further discussion, which included a review of the body camera video, State’s

Ex. 8, which shows the box-cutter style knife at 2:55, RR vol. 5, pp. 157-164,

and the court noting that there was no evidence from any medical provider or

person with knowledge concerning weapons whether this type of knife could

be a deadly weapon. RR vol. 5, pp. 164-165. The trial court then decided

that even though the evidence was “scant,” it was sufficient for the jury to

determine whether a deadly weapon was used, with the court noting that the

blade was only 3/4 inch to one inch of cutting surface. RR vol. 5, p. 165.

After hearing closing arguments from both sides, RR vol. 5, pp. 168-

185, the jury found appellant guilty of aggravated assault with a deadly

weapon, and made an affirmative finding that a deadly weapon was used. RR

vol. 5, p. 192, l. 4-18, and CR 92. The jury heard punishment evidence, and

reached a punishment verdict of 45 years, with no fine, and found that three

enhancement paragraphs were true. RR vol. 6, p. 47, l. 2-22, and CR 108.

The trial court’s written judgment of conviction imposing a 45 year

concurrent sentence, no fine and $284 in court costs, is at CR 110-112. The

trial court’s certification of defendant’s right of appeal is at CR 102. Trial

11
counsel timely filed a notice of appeal. CR 122. This writer was appointed

to represent appellant on appeal. CR 119.

Summary of the Argument

The State presented legally insufficient evidence that the box-cutter

style knife used in this offense was a deadly weapon capable of causing death

or serious bodily injury. A knife is not a deadly weapon per se. The

complainant’s injury was a cut to his hand that required stitches, and he

stayed less than two hours in the hospital. None of the police officers or

other witnesses who testified at trial were asked if this type of knife could

cause death or serious bodily injury. Nor was any medical testimony

presented that on this subject. The medical records also do not contain any

evidence showing that this injury was life-threatening.

Since the State failed to produce legally sufficient evidence that the

box-cutter style knife used was a deadly weapon, the jury’s finding should be

reversed, and the deadly weapon finding should be removed from the trial

court’s judgment. The judgment should also be reformed to show the

conviction is for assault only, since the aggravating factor – use or exhibition

of a deadly weapon – was not supported by legally sufficient evidence. Since

the 45 year sentence exceeds the punishment range for a class A

12
misdemeanor assault, this court should also remand this case to the trial court

for a new punishment hearing within the class A enhanced misdemeanor

range of 90 days to one year.

Argument and Authorities

The deadly weapon finding was supported by legally
insufficient evidence, and should be removed from the trial
court’s judgment, which would result in a conviction for assault
only, and a new punishment hearing at the enhanced class A
misdemeanor range of 90 days to one year.

Standard of Review and Legal Authorities

In reviewing the legal sufficiency of the evidence to support a deadly

weapon finding, the reviewing court considers the evidence in the light most

favorable to the verdict and determines whether any rational trier of fact

could have found the essential elements of a deadly weapon finding beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A finding

of legal insufficiency on one element of the offense requires reversal and

entry of a judgment of acquittal. Burks v. United States, 437 U.S. 1 (1978).

When the evidence is legally insufficient to support a deadly weapon finding,

the appellate remedy is to reverse the deadly weapon finding and reform the

judgment to omit that finding. See, e.g., Cates v. State, 102 S.W.3d 735, 738-

739 (Tex. Crim. App. 2003), and Murphy v. State, No. 01-08-00768-CR

13
(Tex. App. – Houston [1 st Dist.] 2010, pet. ref’d) (not designated for

publication), at pdf slip op., p. 2, n. 1 and pp. 20-21.

The jury is the sole judge of the credibility of the witnesses and the

weight to be given to their testimony. Lancon v. State, 253 S.W.3d 699, 707

(Tex. Crim. App. 2008). The reviewing court should not act as a thirteenth

juror that substitutes its own opinion of the credibility and weight of the

evidence for that of the fact finder. Brooks v. State, 923 S.W.3d 893, 905

(Tex. Crim. App. 2010). Instead, the reviewing court must resolve

inconsistencies in testimony in favor of the verdict, and then ask whether a

rational trier of fact could have found the elements of whether a deadly

weapon was used was proven beyond a reasonable doubt. Curry v. State, 30

S.W.3d 394, 406 (Tex. Crim. App. 2000).

A person commits assault if he “intentionally, knowingly, or recklessly

causes bodily injury to another.” Tex. Pen. Code § 22.01(a)(1). An assault

becomes aggravated if the actor commits assault and uses or exhibits a deadly

weapon during commission of the assault. Tex. Pen. Code § 22.02(a)(2). A

“deadly weapon” is “anything that in the manner of its use or intended use is

capable of causing death or serious bodily injury.” Tex. Pen. Code §

1.07(a)(17)(B). “Serious bodily injury” is defined as “bodily injury that

14
creates a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ. Tex. Pen. Code § 1.07(a)(46). A knife is not a deadly

weapon per se. Tex. Pen. Code § 1.07(a)(17)(A). See also Limuel v. State,

568 S.W.2d 309, 311 (Tex. Crim. App. 1978) (“An ordinary pocket knife is

not manifestly designed, made, or adapted for the purpose of inflicting death

or serious bodily injury.”).

The State does not have to show that the actor actually intended death

or serious bodily injury to support a deadly weapon finding. McCain v. State,

22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The State must only show that

a defendant used or intended to use the knife in a manner that was capable of

causing death or serious bodily injury. Id. The State can use evidence about

the knife’s capacity to cause death or serious bodily injury, its size and shape,

and its manner of use to establish that the knife is a deadly weapon without

expert testimony. Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App.

1980). Factors courts may consider in determining whether a particular knife

is a deadly weapon 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) any testimony of the knife’s life threatening capabilities.

15
Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991).

In a case similar to the case at bar, the State confessed error, and the

Court of Criminal Appeals reversed a conviction for assault with a deadly

weapon, because the knife involved was not a deadly weapon per se, and it

did not appear to become a deadly weapon from the manner of its use in that

case. In Garrett v. State, 298 S.W.3d 945 (Tex. Crim. App. 1957), the

appellant was convicted of aggravated assault with a deadly weapon arising

out of a “fight at an establishment where drinking was in progress[.]” Id.

The knife in that case had a “blade at its longest point of 3/4" in length.”

Ibid. The opinion stated:

The injured party testified that he was treated at the
hospital for about an hour, went home and went to bed, and was
downtown the first thing the following morning.

The doctor who treated him did not consider the wounds
as serious ones if properly treated, that two of them were just
through the skin, while the third was approximately two inches
deep for a distance of four inches, and that they did not impair
his capacity to “use his arms and get around.”

The instrument used was clearly not a deadly weapon per
se and does not appear to have become one from the manner of
its use.

We have concluded that the evidence does not support the
conviction for an assault with a deadly weapon. [Citations
omitted].

16
Ibid. In the case at bar, Mr. Jackson was in the hospital less than two hours

after receiving stitches for his injury, while the victim in Garrett was at the

hospital for one hour. In the case at bar, there was no evidence, medical or

otherwise, that showed his injury was capable of causing death or serious

bodily injury, whereas in Garrett, the testimony from the treating doctor

showed the injury was not serious, did not impair his ability to use his arms

or get around, and was not life-threatening. The State failed to produce

legally sufficient evidence that a deadly weapon was used in this offense.

This court considered whether evidence presented in another Travis

County appeal was sufficient to show that a box-cutter style knife was a

deadly weapon. In Alexander v. State, No. 03-10-00416-CR (Tex. App. –

Austin 2011, pet ref’d) (not designated for publication), this court found that

the evidence was sufficient to support this type of knife being a deadly

weapon when two witnesses testified that it was capable of causing death or

serious bodily injury. Id., pdf slip op. at 8. There was no such testimony in

this case, however,even though five police officers, as well as Mr. Jackson

and Ms. Gilbert, who all testified at trial, could have been asked this question.

The cutting surface of the box-cutter style knife in this case was 3/4

inch to one inch. RR vol. 5, pp. 165, l. 13-14. There was no testimony of the

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knife’s life-threatening capabilities, or whether the injury was a “serious

bodily injury” presented by any witness. Poree did make a slashing motion

which can apparently be seen on State’s Ex. 5, which resulted in a cut to

Jackson’s hand, requiring only stitches and a very brief hospital stay. On this

record, the State produced legally insufficient evidence to show that the box-

cutter style knife was a knife capable of causing death or serious bodily

injury, which failed to support the jury’s finding that a deadly weapon was

used in this offense. As a result, this court should reverse the deadly weapon

finding based upon legally insufficient evidence, and reform the judgment to

remove the deadly weapon finding. Tex. R. App. P. 43.2(b). Additionally,

since the only factor that converted this assault to an aggravated assault, use

or exhibition of a deadly weapon, was supported by legally insufficient

evidence, the judgment should be reformed to show that the offense of

conviction is assault only, not aggravated assault with a deadly weapon, and

the case remanded to the trial court for a new punishment range since the 45

year sentence exceeds the class A enhanced misdemeanor punishment range

of 90 days to one year. Tex. Pen. Code § 12.43(a) and 22.01(b).

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 Conclusion and Prayer for Relief

WHEREFORE, PREMISES CONSIDERED, appellant ESAU POREE

respectfully prays that this court sustain the issue presented, find that the

evidence was legally insufficient to support the jury’s deadly weapon finding,

and reform the judgment to remove the deadly weapon finding, and to show

that the offense of conviction is assault only, not aggravated assault with a

deadly weapon.

Respectfully submitted,

/s/ Gregory Sherwood
GREGORY SHERWOOD
Attorney
P.O. Box 200613
Austin, Texas 78720-0613
(512) 484-9029
Email: gsherwood@mail.com
State Bar No. 18254600

Court-Appointed Attorney on
Appeal for Esau Poree

Certificate of Service

I hereby certify that a true copy of this document was served on
January 3, 2017 by email upon the Travis County District Attorney’s Office,
P.O. Box 1748, Austin, Texas 78767 at the following email address:
AppellateTCDA@co.travis.tx.us.
/s/ Gregory Sherwood

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 Certification of Word Count Compliance

According to the WordPerfect program used to create this document,
there are 4,407 words in this brief, excluding the portions listed in Tex. R.
App. P. 9.4(i)(1).

/s/ Gregory Sherwood

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