Efrain Jimenez v. State

ACCEPTED
08-17-00124-CR 08-17-00124-CR
EIGHTH COURT OF APPEALS
EL PASO, TEXAS
5/25/2018 5:02 PM
DENISE PACHECO
CLERK

NO. 08-17-00124-CR

IN THE FILED IN
COURT OF APPEALS 8th COURT OF APPEALS
EL PASO, TEXAS
EIGHTH DISTRICT OF TEXAS 5/25/2018 5:02:45 PM
DENISE PACHECO
EFRAIN JIMENEZ Clerk
APPELLANT

V.

THE STATE OF TEXAS APPELLEE

THE STATE’S BRIEF

ON APPEAL FROM CAUSE NUMBER 20150D04711
IN THE 384th JUDICIAL DISTRICT COURT
OF EL PASO COUNTY, TEXAS

JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT

RAQUEL LOPEZ
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY’S OFFICE
201 EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 4503
FAX (915) 533-5520
raqlopez@epcounty.com
SBN 24092721

ATTORNEYS FOR THE STATE

The State does not request oral argument.
 TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi-ix

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

STATEMENT OF FACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-6

SUMMARY OF THE STATE’S ARGUMENTS.. . . . . . . . . . . . . . . . . . . . . . . . . 7-9

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-51

THE STATE’S REPLY TO JIMENEZ’ FIRST ISSUE
Because Jimenez failed to complain about the trial court’s alleged failure to
arraign him at any point during the proceedings, he has failed to preserve his
complaint and presents this Court with nothing for review. In any event,
because Jimenez, represented by counsel, entered his plea to the indictment at
the trial on the merits, he waived his right to arraignment. And because the
indictment was formally read to Jimenez at trial, Jimenez entered his plea
thereto, and there was no issue of identity, the purpose of arraignment was
fulfilled, such that any error was rendered harmless. Jimenez’ first issue
should thus be overruled. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-18

I. Underlying facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. Because Jimenez never objected in the trial court to the alleged lack of
arraignment, he has failed to preserve error and presents nothing for
review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

III. Even if this Court concludes that Jimenez somehow preserved his
complaint, Jimenez’ first issue should be overruled nonetheless because,
absent affirmative evidence to the contrary, this Court must presume
that Jimenez was arraigned... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-15

IV. Because Jimenez, represented by counsel, entered a plea to the
indictment at his trial on the merits, he waived his right to arraignment.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16

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V. Because there was no issue of identity, and because Jimenez entered his
plea to the indictment at the trial on the merits, any error was harmless.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-18

THE STATE’S REPLY TO JIMENEZ’ SECOND ISSUE
The trial court’s signed, competency-determination order, which shows that
the trial court undertook a formal determination of Jimenez’ competency to
stand trial, is entitled to a presumption of truthfulness and regularity. And
because Jimenez, who merely complains of his alleged deprivation of a
competency trial altogether and does not otherwise challenge the trial court’s
competency determination, has failed to produce affirmative evidence to
rebut the presumption of regularity in the proceedings establishing that a
bench trial on the issue of competency was, in fact, conducted, his claim
necessarily fails and should be overruled.. . . . . . . . . . . . . . . . . . . . . . . . . . 19-25

I. Underlying facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20

II. Texas’ competency statutes and applicable law on competency. . . 20-22

III. Because the trial court’s signed, written order shows that, upon a
formal hearing on the matter of competency, neither Jimenez, the State,
nor the trial court requested a jury trial on the issue of competency,
Jimenez has failed to demonstrate that he was unduly denied either a
competency trial by jury or a competency trial altogether.. . . . . . . 22-25

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THE STATE’S REPLY TO JIMENEZ’ THIRD AND FOURTH ISSUES
Because Jimenez failed to object to the State’s alleged impermissible pursuit
of both a conviction and a deadly-weapon finding on the basis of his
possession of the same deadly weapon, he has waived his right to complain on
that basis on appeal, and his third issue should be overruled for this reason
alone. But even if Jimenez preserved his complaint, because the evidence
showed that, rather than merely possessing the shank, Jimenez affirmatively
employed the shank for the specific purpose of inflicting, at the very least,
serious bodily injury on at least one of the officers attempting to remove him
from his cell, Jimenez’ use of the shank actually facilitated both his
commission of the underlying offense (possession of the shank) and his flight
therefrom, thus meeting the “facilitation-nexus” rule under Plummer and
making the entry of an affirmative deadly-weapon finding proper (Issue
Three). And because: (1) the manner of Jimenez’ use and intended use
created a threat of present physical harm to the officers in the vicinity; and
(2) the undisputed evidence showed that the shank was adapted for the
purpose of inflicting serious bodily injury or death, the evidence in support of
the affirmative-deadly weapon finding was legally sufficient (Issue Four). As
such, the trial court’s entry of a deadly-weapon finding was proper, and
Jimenez’ third and fourth issues should be overruled.. . . . . . . . . . . . . . . . 26-51

I. Underlying Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28

II. Because the evidence showed that, rather than merely possessing the
shank, Jimenez affirmatively employed the shank for the specific
purpose of inflicting, at the very least, serious bodily injury on at least
one of the officers attempting to remove him from his cell, Jimenez’ use
of the shank actually facilitated both his commission of the underlying
offense (possession of the shank) and his flight therefrom, thus meeting
the “facilitation-nexus” rule under Plummer. As such, the trial court’s
entry of a deadly-weapon finding was proper (Issue Three). . . . . . 28-41

A. Because Jimenez never objected to the State’s alleged improper
attempt to pursue both a conviction and a deadly-weapon finding
on the basis of the same deadly weapon, Jimenez failed to
preserve his complaint and presents nothing for review. .. . . 30-31

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 B. The Court of Criminal Appeals has expressly held that any felony
is theoretically susceptible to a deadly-weapon finding, even if the
use of the weapon itself also serves to fulfill one of the elements of
the offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-33

C. Narron, Ex parte Petty, Patterson, and Plummer—the “facilitation-
nexus” rule.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-37

D. Jimenez’ use of the shank actually facilitated both his commission
of the predicate offense (possession of the shank) and his flight
therefrom, thus meeting the facilitation-nexus rule.. . . . . . . . 37-41

III. Because the evidence showed that Jimenez effectuated a threat of
present harm to the officers situated in close physical proximity to his
cell, and because the evidence established that the shank had been
adapted for the purpose of inflicting death or serious bodily injury, the
evidence was legally sufficient to support the deadly-weapon finding
(Issue Four). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41-51

A. Generally applicable law and standard of review. . . . . . . . . . 42-45

B. Because, via his use and intended use of the shank, Jimenez
created a threat of present harm to the officers in the immediate
surrounding area, the evidence was sufficient to support an
affirmative deadly-weapon finding. .. . . . . . . . . . . . . . . . . . . . 45-48

C. Even if the shank was not a deadly weapon in the manner of its
use or intended use, it was still a deadly weapon by adaptation.. . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48-51

PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

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 INDEX OF AUTHORITIES

FEDERAL CASES

United States v. La Guardia, 774 F.2d 317 (8th Cir. 1985).. . . . . . . . . . . . . . . . . . 34

STATE CASES

Basden v. State, No. 01-01-00666-CR, 2002 WL 31771167 (Tex.App.–Houston
[1st Dist.] Dec. 12, 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Black v. State, No. 2-05-338-CR, 2006 WL 2507325 (Tex.App.–Fort Worth Aug.
31, 2006, pet. ref’d)(mem.op.)(not designated for publication). . . . . . . . . 46, 47, 48

Breazeale v. State, 683 S.W.2d 446 (Tex.Crim.App. 1984). . . . . . . . . . . . 13, 23, 24

Brown v. State, 716 S.W.2d 939 (Tex.Crim.App. 1986).. . . . . . . . . . . 44, 45, 46, 48

Brown v. State, 917 S.W.2d 387 (Tex.App.–Fort Worth 1996, pet. ref’d). . . . . . . 15

Crittendon v. State, 923 S.W.2d 632 (Tex.App.–Houston [1st Dist.] 1995, no pet.). .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Crumpton v. State, 301 S.W.3d 663 (Tex.Crim.App. 2009). . . . . . . . . . . . . . . . . 42

Denham v. State, 574 S.W.2d 129 (Tex.Crim.App. 1978). . . . . . . . . . . . . 44, 46, 48

Dowdle v. State, 11 S.W.3d 233 (Tex.Crim.App. 2000).. . . . . . . . . . . . . . . . . . . . 40

Eckels v. State, 220 S.W.2d 175 (Tex.Crim.App. 1949). . . . . . . . . . . . . . . . . . . . . 12

Ex parte Petty, 833 S.W.145 (Tex.Crim.App. 1992), abrogated on other grounds
by Ex parte Nelson, 137 S.W.3d 666 (Tex.Crim.App. 2004). . . . . . . . . . . . . . 28, 35

Fields v. State, 507 S.W.3d 333 (Tex.App.–Houston [1st Dist.] 2016, no pet.). . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 15, 24

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Fisher v. State, 01-11-00516-CR, 2013 WL 4680226 (Tex.App.–Houston [1st
Dist.] Aug. 29, 2013, pet. ref’d)(mem.op.)(not designated for publication). . . . . . 45

Garner v. State, 864 S.W.2d, 103 (Tex.App.–Houston [1st Dist.] 1993, pet. ref’d).. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Hillburn v. State, 627 S.W.2d 546 (Tex.App.–Amarillo 1982, no pet.). . . . . . . . . 46

Johnson v. State, 629 S.W.2d 137 (Tex.App.–Dallas 1982 no pet.). . . . . . . . . . . . 13

Johnson v. State, 509 S.W.3d 320 (Tex.Crim.App. 2017). . . . . . . 43, 44, 45, 46, 48

Keller v. State, 125 S.W.3d 600 (Tex.App.–Houston [1st Dist.] 2003), pet. dism’d,
improvidently granted, 146 S.W.3d 677 (Tex.Crim.App. 2004).. . . . . . . . 13, 23, 31

Matlock v. State, 392 S.W.3d 662 (Tex.Crim.App. 2013). . . . . . . . . . . . . . . . . . . 43

Mejia v. State, No. 14-00-00396-CR, 2001 WL 1136138 (Tex.App.–Houston [14th
Dist.] Sept. 27, 2001, pet. ref’d)(not designated for publication). . . . . . . . 12, 17, 18

Narron v. State, 835 S.W.2d 642 (Tex.Crim.App. 1992). . . . . . . . . . . . . . . . . 28, 34

Patterson v. State, 769 S.W.2d 938 (Tex.Crim.App. 1989). . . . . . . . . 29, 34, 39, 40

Pena v. State, 285 S.W.3d 459 (Tex.Crim.App. 2009). . . . . . . . . . . . . . . . . . . . . . 31

Plummer v. State, 410 S.W.3d 855 (Tex.Crim.App. 2013).. . . . . . . . . 28, 35, 36, 37

Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985). . . . . . . . . . . . . . . . . . . . . . 42

Ramon v. State, No. 04-96-00881-CR, 1997 WL 438755 (Tex.App.–San Antonio
Aug. 6, 1997, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Rhoades v. State, 934 S.W.2d 113 (Tex.Crim.App. 1996). . . . . . . . . . . . . . . . . . . 31

Richardson v. State, 508 S.W.2d 380 (Tex.Crim.App. 1974). . . 11, 12, 15, 16, 17, 18

Shugart v. State, 32 S.W.3d 355 (Tex.App.–Waco 2000, pet. ref’d). . . . . . . . . . . 50

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Sinegal v. State, No. 05-91-00209-CR, 1993 WL 15487 (Tex.App.–Dallas Jan. 12,
1993, pet. ref’d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Smith v. State, 51 S.W.3d 806 (Tex.App.–Texarkana 2001, no pet.). . . . . . . . . . . 50

Tanksley v. State, 656 S.W.2d 194 (Tex.App.–Austin 1983, no pet.). . . . . . . . 47, 48

Thomas v. State, 821 S.W.2d 616 (Tex.Crim.App. 1991).. . . . . . . . . . 43, 44, 49, 51

Turner v. State, 422 S.W.3d 676 (Tex.Crim.App. 2013). . . . . . . . . . . . . . 20, 21, 24

Tyra v. State, 897 S.W.2d 796 (Tex.Crim.App. 1995). . . . . . . . . . . . . 32, 33, 39, 40

Vanwright v. State, 454 S.W.2d 406 (Tex.Crim.App. 1970).. . . . . . . . . . . . . . . . . 12

Wood v. State, 515 S.W.2d 300 (Tex.Crim.App. 1974). . . . . . . . . . . . . . . . . . . . . 17

STATE STATUTES and RULES

TEX. CODE CRIM. PROC. art. 26.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

TEX. CODE CRIM. PROC. art 26.02. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. CODE CRIM. PROC. art 26.03. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. CODE CRIM. PROC. art. 46B.003(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.003(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.004(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.004(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.004(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.004(c-1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.005(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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TEX. CODE CRIM. PROC. art. 46B.005(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.005(c).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.051(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. CODE CRIM. PROC. art. 46B.051(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TEX. PENAL CODE § 1.07(a)(17)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 51

TEX. PENAL CODE § 1.07(a)(17)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

TEX. PENAL CODE § 1.07(a)(46).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

TEX.R.APP .P. 33.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 31

TEX.R.APP .P. 44.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

SESSION LAWS

TEX. H.B. 2299, 84th LEG., R.S. (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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 STATEMENT OF THE CASE

Efrain Jimenez (“Jimenez”) was indicted (and subsequently re-indicted) for

possession of a prohibited item in a correctional facility. (CR:9, 19).1 A jury

found him guilty as charged, (RR4:46), and, Jimenez having pleaded “true” to the

enhancement allegations in the indictment, (RR5:7), assessed his punishment at 20

years’ confinement. (CR:243-44); (RR5:193-94). The trial court sentenced

Jimenez in accordance with the jury’s verdicts. (CR:243-45). Jimenez timely

filed notice of appeal. (CR:261).

1
Throughout this brief, references to the record will be made as follows: references to the
clerk’s record will be made as “CR” and page number; references to the reporter’s record will be
made as “RR” and volume and page number; and references to exhibits will be made as either
“SX” or “DX.”

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 STATEMENT OF FACTS2

Viewed in the light most favorable to the jury’s verdicts, the record and

evidence admitted at trial show the following:

The indictment

On September 29, 2015, Jimenez was re-indicted for possession of a

prohibited item (a deadly weapon) in a correctional facility. (CR9:9).3 The

indictment alleged that Jimenez used and exhibited a deadly weapon—a sharpened

wire—during the commission of and immediate flight from the charged offense.

(CR:9).

Trial on the merits

In the afternoon hours of December 2, 2014, Sergeant Maria Santana (“Sgt.

Santana”) and Corporal Hernandez (“Corp. Hernandez”) were standing in front of

Jimenez’ cell while discussing a recently concluded disciplinary hearing during

which Jimenez was found to have committed an administrative-rule violation by

calling Corporal Brinks (“Corp. Brinks”) a “bitch” and a “whore.” (RR3:8-9, 20,

66, 68-69, 71-72). Jimenez was angry about the outcome of the hearing,

2
In addition to the recitation of facts below, the State will set out the relevant factual
background for each issue, as needed.
3
As reflected in the State’s “Motion to Carry Over,” the re-indictment in this case (trial-
court cause number 20150D04711) was based on the same conduct as that of the original
indictment (trial-court cause number 20150D01362). (CR:19).

-1-
repeatedly cussing and complaining to Sgt. Santana that Corp. Brinks was “a

fucking liar,”, a “whore,” and a “bitch” and that she should not be believed.

(RR3:21).

Sgt. Santana and Corp. Hernandez reminded Jimenez that they had followed

administrative procedures in arriving at their decision, but Jimenez did not relent

in his outbursts. (RR3:21). Upon hearing the commotion, Corporal Figueroa

(“Corp. Figueroa”) walked over to Jimenez’ cell and attempted to diffuse the

situation. (RR3:21). Surmising that perhaps Jimenez might calm down if they

left, Sgt. Santana and Corp. Hernandez retreated from the area in order to continue

administering their duties. (RR3:21-22, 67). On their way out of the cellblock,

however, they heard Jimenez become louder and begin to bang and kick the door

to his cell, so Sgt. Santana and Corp. Hernandez made their way back. (RR3:22-

23). Jimenez continued to yell at the officers about the rule violation, again

claiming that Corp. Brinks was a “fucking liar.” (RR3:23).

Jimenez refused to listen to any of the officers; instead, his anger escalated,

and he began to pace back and forth in his cell. (RR3:23-24). Having made

several unsuccessful attempts at containing Jimenez’ outbursts, the officers

requested additional assistance, and Detention Officer Oscar Ortega (“D.O.

Ortega”) arrived soon thereafter. (RR3:24, 124-25). D.O. Ortega, too, tried

-2-
speaking to Jimenez to calm him down, but Jimenez continued cursing, yelling,

kicking the door, and pacing back and forth in his cell. (RR3:24-25, 126-27).

At that point, officers opted to remove Jimenez from his cell and transfer

him to the “violent cell” before Jimenez either hurt himself or incited similar,

belligerent behavior by inmates in the surrounding cellblocks. (RR3:25, 127).

But Jimenez ignored D.O. Ortega’s commands, did not allow himself to be

handcuffed through the cell door, and kept pacing back and forth inside his cell, so

D.O. Ortega asked the guard station to unlock Jimenez’ cell door. (RR3:128-29).

When the guard station unlocked Jimenez’ cell door, Jimenez approached

his bunk and retrieved a “shank” made out of a sharpened fence wire with a towel

for a handle. (RR3:129-30). When D.O. Ortega saw the shank, he immediately

closed the door and told everyone, “He has a shank.” (RR3:25-26, 130); (SX1–the

recovered sharpened fence wire).

D.O. Ortega testified that Jimenez held the sharpened wire with a clenched

fist, his hand over the towel, and the sharpened end protruding beyond the edge of

the towel. (RR3:130-31).4 Sgt. Santana, who had walked up to the cell door when

4
D.O. Ortega explained that, even when the cell door was closed, he was able to see how
Jimenez was holding the shank because the cell door has a clear glass pane as well as a metal
mesh panel with openings large enough to pass a pencil through it. (RR3:131). Sgt. Santana
described the cell door similarly, adding that there is an opening through which Jimenez could
receive his food without officers having to open the door. (RR3:14-15).

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she heard that Jimenez had a shank, testified that she saw Jimenez using a white

towel to hold onto the shank, that he was holding the shank in his right hand

“really tight,” and that he was “tensing up and walking back and forth[,] saying he

was going to [‘]fuck somebody up[’].” (RR3:26).

The officers persisted in their attempts to dissuade Jimenez, telling him that

“it was not worth it” and asking him to give up the shank so that they could talk

about the problem. (RR3:26-27). But Jimenez did not yield; rather, with the

shank in his hand, he told D.O. Ortega that he (Jimenez) was going to hurt Corp.

Figueroa. (RR3:134). And when D.O. Ortega, yet again, asked him to calm down,

telling him he had nothing to gain by hurting someone, Jimenez retorted, “I don’t

care. I’m just going to [hurt one of the officers]” and “I’m going to fuck

somebody up[,] open the door[,] just wait[,] open the door.” (RR3:77, 134).5

Meanwhile, officers summoned the Special Reaction Team (“SRT”), but

after a few minutes (before SRT could arrive), D.O. Ortega was able to talk

Jimenez into relinquishing the shank. (RR3:27, 134-35). When Jimenez slid the

shank underneath the door, D.O. Ortega immediately retrieved it and left the area.

(RR3:137-38).6

5
During cross-examination, D.O. Ortega testified that he repeatedly yelled at Jimenez,
“Hey, give me the shank.” (RR3:143).
6
D.O. Ortega did not enter Jimenez’ cell at any point. (RR3:139).

-4-
 Sgt. Santana described the shank as a sharpened fence wire and stated that

she recognized State’s Exhibit 1 as the shank Jimenez used to threaten the officers

by the length and sharpness of it, as well as how it was “carved into, like, a little

handle.” (RR3:35, 76); (SX1). She explained that “shank” was a term used by

detention officers to describe deadly weapons that can seriously injure or kill

someone. (RR3:36-37, 42). She also explained that an inmate could create a

shank out of a piece of fence wire by pressing and rubbing it back and forth

against the cement floor or walls in his cell, rotating and repeating the process

until the wire was fully sharpened. (RR3:14, 54-55, 75-76). Sgt. Santana opined

that State’s Exhibit 1 was a deadly weapon, explaining that it could cause serious

bodily injury, even death, if used to stab someone in the neck, eye, head, or

anywhere on the body. (RR3:37).

D.O. Ortega similarly explained that inmates sharpen items by rubbing them

against the cement floor. (RR3:121). Such items are prohibited in a correctional

facility because they have been altered for a purpose that is “unsafe.” (RR3:120-

21). When asked why he immediately closed the door after seeing Jimenez reach

for the shank, D.O. Ortega explained that the shank was a deadly weapon, that

Jimenez could have used it to hurt or kill him, and that he had to protect himself

and others. (RR3:137-38).

-5-
 Sgt. Donald Ende (“Sgt. Ende”) also recognized State’s Exhibit 1 as the

shank that D.O. Ortega had obtained from Jimenez, as it appeared to have been

fashioned out of the fence wires at the jail annex, with a curled-up end. (RR3:91).

The jury found Jimenez guilty as charged. (RR4:46). Jimenez pleaded

“true” to the enhancement allegations in the indictment, and after hearing the

punishment evidence, the jury assessed Jimenez’ punishment at 20 years’

confinement. (RR5:7, 193-94).

-6-
 SUMMARY OF THE STATE’S ARGUMENTS

The State’s reply to Jimenez’ first issue (the trial court’s alleged failure to
arraign Jimenez pre-trial):

Because Jimenez never objected to the trial court’s alleged failure to arraign

him, at a time when the trial court could have remedied any such error, he has

failed to preserve his complaint for review. But even if Jimenez did not waive

error, because the recitals in the judgment, indicating that Jimenez had, in fact,

been duly arraigned, are entitled to a presumption of truthfulness and regularity

absent affirmative evidence to the contrary (which Jimenez has failed to present),

Jimenez’ lack-of-arraignment claim must necessarily fail. Furthermore, because

Jimenez, represented by counsel, entered his plea to the indictment at his trial on

the merits, and because Jimenez’ identity as the perpetrator was not an issue at

trial, Jimenez waived his right to arraignment, and any error in failing to arraign

him pre-trial was rendered harmless. For these reasons, Jimenez’ first issue should

be overruled.

The State’s reply to Jimenez’ second issue (the trial court’s alleged failure to
conduct a competency trial):

Because Jimenez failed to lodge any objection to the trial court’s alleged

failure to conduct a trial on the issue of Jimenez’ competency to stand trial, he has

waived his right to complain on appeal and presents nothing for review. But even

-7-
if Jimenez preserved his complaint, because the trial court’s signed, competency

order, which is entitled to a presumption of truthfulness and regularity, expressly

states that the trial court undertook a formal determination of Jimenez’

competency and that the parties specifically waived any right to have a jury

determine the issue, in the absence of any affirmative evidence in the record to

show that Jimenez at any point invoked his right to a jury in that regard, under the

express language of art. 46B.051—which states that it is the trial court, and not the

jury, who shall make the determination unless a party registers their preference to

have the jury do so—Jimenez’ claim that he was improperly denied his right to a

trial is wholly unsupported by record and should be overruled.

The State’s reply to Jimenez’ third and fourth issues (the propriety of the
trial court’s entry of a deadly-weapon finding):

Because Jimenez never complained to the trial court (as he does now on

appeal) that it was a legal impossibility for him to be both convicted of illegally

possessing a deadly weapon in a correctional facility and to have an affirmative

deadly-weapon finding entered in the judgment, Jimenez failed to preserve any

error. But even if Jimenez did not waive his complaint, because the record shows

that his use and exhibition of the “shank” actually facilitated his commission of,

and flight from, the underlying offense, the trial court’s entry of a deadly-weapon

finding was proper and supported by the evidence. (Issue Three).

-8-
 And, notwithstanding Jimenez’ contentions on appeal that, because he was

locked behind a cell door, he was not physically capable of carrying out his threats

to assault the detention officers with the shank, where the evidence showed that

Jimenez conditioned his threat on the officers foregoing precisely what they had a

right to do at the time of the threat (i.e., opening his cell door), displayed the

shank, and, by overt action and verbal threats, announced his intent to “fuck up”

the officers as soon as they opened his cell door, Jimenez, in the manner of his use

and intended use of the shank, created a threat of present serious bodily injury or

death to the officers attempting to remove him from his cell. And because,

additionally, the undisputed evidence established that the shank was manifestly

adapted for the purpose of inflicting serious bodily injury or death, regardless of

the actual manner of its use or intended use, the shank was a deadly weapon by

adaptation. As such, the evidence was legally sufficient to show that Jimenez used

or exhibited a deadly weapon during the commission of, or flight from, the

charged offense, and the trial court’s entry of a deadly-weapon finding was thus

proper. (Issue Four).

For these reasons, Jimenez’ third and fourth issues should be overruled.

-9-
 THE STATE’S REPLY TO JIMENEZ’ FIRST ISSUE

Because Jimenez failed to complain about the trial court’s alleged failure to
arraign him at any point during the proceedings, he has failed to preserve his
complaint and presents this Court with nothing for review. In any event,
because Jimenez, represented by counsel, entered his plea to the indictment at
the trial on the merits, he waived his right to arraignment. And because the
indictment was formally read to Jimenez at trial, Jimenez entered his plea
thereto, and there was no issue of identity, the purpose of arraignment was
fulfilled, such that any error was rendered harmless. Jimenez’ first issue
should thus be overruled.

ARGUMENT AND AUTHORITIES

In his first issue presented for review, Jimenez asserts that he should be

granted a new trial because “the record does not reflect that he was arraigned

under 20150D04711 [the re-indicted cause number].” See (Appellant’s Am. Br. at

8).7 Jimenez further asserts that because no waiver of arraignment is contained in

the record and because the wording of article 26.01, which requires that a

defendant be arraigned in any case punishable by imprisonment, is mandatory, “a

reversal of his case is required.” See (Appellant’s Am. Br. at 8). For the reasons

that follow, Jimenez’ first issue is without merit and should be overruled.

7
The clerk’s record requested by the Appellant does not include the original indictment
under trial-court cause number 20150D01362.

-10-
I. Underlying facts

In addition to the facts set out above, which the State herein relies on and

adopts, the record further shows that after the jury was empaneled and sworn, the

indictment was read in the presence of both Jimenez and the jury, and Jimenez

entered his plea of “not guilty.” (RR3:5-6). Jimenez was represented by counsel,

Thomas S. Hughes. (RR5:2); (CR:243).

The following language was included in the judgment’s recitals:

It appeared to the Court that Defendant was mentally competent and
had pleaded as shown above to the charging instrument. Both parties
announced ready for trial...the indictment was read to the jury, and
Defendant entered a plea to the charged offense.

(CR:243)(emphasis added). The words “not guilty” appear under the

section of the judgment entitled “plea to the offense.” (CR:243).

Both Sgt. Santana and D.O. Ortega positively identified Jimenez as

the perpetrator, and Jimenez did not dispute his identity as such. (RR3:19,

125-26).

II. Because Jimenez never objected in the trial court to the alleged lack of
arraignment, he has failed to preserve error and presents nothing for
review.

Texas statutory law requires that the defendant be arraigned “[i]n all felony

cases, after indictment....” TEX. CODE CRIM. PROC. art. 26.01. However, because

arraignment is not part of “trial by jury,” it may be waived. Richardson v. State,
-11-
508 S.W.2d 380, 381 (Tex.Crim.App. 1974)(“Because arraignment is not part of

trial by jury, it may be waived by a defendant”)(citing Eckels v. State, 220 S.W.2d

175 (Tex.Crim.App. 1949)). And when a defendant fails to raise the issue before

the conclusion of the evidence, he has done just that. See Eckels, 220 S.W.2d at

177-78 (“If appellant knew that he was not arraigned and did not want to waive

arraignment, he should have raised the question before the conclusion of the

evidence and given the trial court an opportunity to have him arraigned.”); Mejia

v. State, No. 14-00-00396-CR, 2001 WL 1136138, at *1-2 (Tex.App.–Houston

[14th Dist.] Sept. 27, 2001, pet. ref’d)(not designated for publication)(same); see

also TEX.R.APP .P. 33.1; Vanwright v. State, 454 S.W.2d 406, 408 (Tex.Crim.App.

1970)(appellant waived any failure-to-arraign error when he raised the issue for

the first time in a motion for new trial).

Here, Jimenez failed to object at any point during the trial—before or after

the close of the evidence—to the trial court’s alleged failure to arraign him. Nor

does the record otherwise reflect any objection by Jimenez pre-trial. Jimenez has

thus failed to preserve his complaint, and for this reason alone, his first issue

should be overruled. See Eckels, 220 S.W.2d at 177-78; Mejia, 2001 WL 1136138

at *1-2.

-12-
III. Even if this Court concludes that Jimenez somehow preserved his
complaint, Jimenez’ first issue should be overruled nonetheless because,
absent affirmative evidence to the contrary, this Court must presume
that Jimenez was arraigned.

It is well settled that a presumption of truthfulness and regularity is created

by the recitals in a judgment and that, absent affirmative evidence to the contrary,

an appellant’s bare assertion that he was not arraigned is insufficient to rebut that

presumption. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.

1984)(“[T]he formal judgment of the trial court carries with it a presumption of

regularity and truthfulness, and such is never to be lightly set aside.”); Fields v.

State, 507 S.W.3d 333, 335-36 (Tex.App.–Houston [1st Dist.] 2016, no

pet.)(holding that, where the record is silent and thus fails to affirmatively show

that appellant was not arraigned, appellant failed to rebut the presumption created

by the recitals in the judgment that he had been arraigned); Keller v. State, 125

S.W.3d 600, 605 (Tex.App.–Houston [1st Dist.] 2003), pet. dism’d, improvidently

granted, 146 S.W.3d 677 (Tex.Crim.App. 2004)(“A presumption of truthfulness

and regularity applies to documents filed in the trial court.”); Johnson v. State, 629

S.W.2d 137, 139 (Tex.App.–Dallas 1982 no pet.)(appellant’s testimony in which

he claimed the trial judge had failed to admonish him as to the range of

punishment was insufficient to rebut the presumption of regularity in the

judgment); Ramon v. State, No. 04-96-00881-CR, 1997 WL 438755, at *2

-13-
(Tex.App.–San Antonio Aug. 6, 1997, pet. ref’d)(not designated for

publication)(presuming that appellant was arraigned despite appellant’s claim to

the contrary); Sinegal v. State, No. 05-91-00209-CR, 1993 WL 15487, at *5

(Tex.App.–Dallas Jan. 12, 1993, pet. ref’d)(not designated for

publication)(rejecting appellant’s claim that he was deprived of effective

assistance because the record failed to show that he had been arraigned, reasoning

that, absent affirmative evidence to the contrary, the recitals contained in the

judgment created a presumption that appellant was, in fact, arraigned). This is

especially so when appellant fails to object on the record to any such lack of

arraignment. See Fields, 507 S.W.3d at 335-36 (relying on the presumption of

regularity in the judgment, reasoning, “On such a silent record, and given that

[appellant] did not object in the trial court that he had not been properly arraigned,

we must presume that he was properly arraigned”). Indeed, Rule 44.2 expressly

requires that appellate courts defer to such a presumption, providing, in relevant

part:

(c) Presumptions. Unless the following matters were disputed in the trial
court, or unless the record affirmatively shows the contrary, the court of
appeals must presume:...

(3) that the defendant was arraigned.

TEX.R.APP .P. 44.2(c)(emphasis added).

-14-
 Here, not only has Jimenez failed to produce affirmative evidence in support

of his claim or even dispute his purported lack of arraignment in the trial court, but

the recitals in the judgment directly refute his claim. Referring to the plea of “not

guilty” contained on the first page of the judgment, the judgment states that

Jimenez “pleaded as shown above to the charging instrument.” (CR:243). Absent

affirmative evidence to the contrary, this Court should presume that Jimenez was

duly arraigned and defer to the presumption of regularity in the judgment. See

Fields, 507 S.W.3d at 335-36; Ramon, 1997 WL 438755 at *2; Sinegal, 1993 WL

15487 at *5; see also Brown v. State, 917 S.W.2d 387, 390 (Tex.App.–Fort Worth

1996, pet. ref’d)(where judgment stated, “the Court having duly admonished the

Defendant as to the consequences of such plea, including the range of

punishment...,” appellant’s testimony that he was unaware of the consequences of

his plea was insufficient to rebut the presumption of regularity in the judgment).

Thus, even if this Court finds that Jimenez preserved his complaint for

appellate review, Jimenez’ first should issue should be overruled for this reason,

as well.

IV. Because Jimenez, represented by counsel, entered a plea to the
indictment at his trial on the merits, he waived his right to arraignment.

When a defendant, represented by counsel, enters a plea to the indictment at

the trial on the merits, he waives any right to arraignment. See Richardson, 508

-15-
S.W.2d at 381-82 (holding that appellant waived his right to be arraigned where,

subsequent to the jury being empaneled and sworn, the indictment was read to

appellant at the trial on the merits and appellant, represented by counsel, entered a

not-guilty plea thereto). Here, the record shows that, after the jury was empaneled

and sworn, and after the indictment was formally read before the jury, Jimenez,

who was represented by counsel, entered a plea of “not guilty.” (RR3:2, 5-6);

(CR:243). Thus, even if Jimenez preserved his complaint despite his failure to

object at any point during the trial-court proceedings, and even if Jimenez could

somehow overcome the presumption of regularity in the criminal proceedings, he

nonetheless waived his right to be arraigned. See id.

For this additional reason, Jimenez’ first issue should be overruled.

V. Because there was no issue of identity, and because Jimenez entered his
plea to the indictment at the trial on the merits, any error was harmless.

Without waiving any of the foregoing, even if Jimenez preserved error, did

not waive his right to arraignment, and somehow rebutted the presumption that he

was arraigned, for the same reasons discussed above, any trial-court error in

failing to arraign him was harmless.

The purpose of arraignment is simply to read the indictment to the accused,

hear his plea thereto, and fix his identity. See TEX. CODE CRIM. PROC. art 26.02

(Entitled “Purpose of Arraignment,” stating, “An arraignment takes place for the

-16-
purpose of fixing his identity and hearing his plea.”); Richardson, 508 S.W.2d at

381; Mejia, 2001 WL 1136138 at *2. Although a defendant may not be arraigned

any earlier than two days after having been served with a copy of the indictment,

statutory law does not specify a proper time for arraignment relative to trial on the

merits. See TEX. CODE CRIM. PROC. art 26.03 (Entitled, “Time of arraignment”);

Mejia, 2001 WL 1136138 at *2. However, “the very purpose of arraignment has

already been served in most instances if arraignment is delayed until the

commencement of trial.” Mejia, 2001 WL 1136138 at *2. While this makes the

ideal time for arraignment that long before trial, it also makes its delay until the

commencement of trial harmless. See Wood v. State, 515 S.W.2d 300, 303

(Tex.Crim.App. 1974)(noting that the purpose of arraignment has already been

served in most instances when it has been delayed until both sides announce ready

at trial); Mejia, 2001 WL 1136138 at *2.

As noted above, at his trial on the merits, the indictment was formally read

to Jimenez, and Jimenez entered his plea thereto. (RR3:5-6). Both Sgt. Santana

and D.O. Ortega positively identified Jimenez as the perpetrator, and Jimenez did

not dispute his identity as such. (RR3:19, 125-26). Jimenez does not contend

(much less demonstrate) that he was surprised by the allegations or that he needed

additional time to prepare for trial. Thus, because there was no issue of identity,

-17-
and because Jimenez entered his plea to the indictment at his trial on the merits,

the purpose of the indictment was fulfilled, such that any error in failing to arraign

Jimenez prior to trial was rendered harmless. See Richardson, 508 S.W.2d at 381-

82 (“There was no purpose for arraignment because appellant had already entered

his plea to the indictment at the trial on the merits and there was no question of

identity.”); Mejia, 2001 WL 1136138 at *2 (holding that, because appellant’s

identity was consistent with the indictment allegations, appellant’s presumed not-

guilty plea was formally confirmed at trial on the merits, and appellant did not

claim to have been surprised by the allegations in the indictment or denied

additional time to prepare, any error in failing to arraign appellant prior to trial

was harmless).

For this final reason, Jimenez’ first issue is without merit and should be

overruled.

-18-
 THE STATE’S REPLY TO JIMENEZ’ SECOND ISSUE

The trial court’s signed, competency-determination order, which shows that
the trial court undertook a formal determination of Jimenez’ competency to
stand trial, is entitled to a presumption of truthfulness and regularity. And
because Jimenez, who merely complains of his alleged deprivation of a
competency trial altogether and does not otherwise challenge the trial court’s
competency determination, has failed to produce affirmative evidence to
rebut the presumption of regularity in the proceedings establishing that a
bench trial on the issue of competency was, in fact, conducted, his claim
necessarily fails and should be overruled.

ARGUMENT AND AUTHORITIES

In his second issue presented for review, Jimenez complains that he was

denied a trial on the issue of incompetency, as “no record exists of a trial as

contemplated by [article 46B.005(b)].” See (Appellant’s Am. Br. at 10-11).

Because the record, which shows that a bench trial was conducted on the issue of

incompetency, directly refutes Jimenez’ complaint, and because Jimenez never

requested a jury trial on the issue, Jimenez’ claim is entirely without merit and

should be overruled.

I. Underlying Facts

In addition to the facts set out above, which the State herein relies on and

adopts, the record further shows that on March 22, 2016, prior to the

commencement of trial, the trial court entered an order transferring the case from

-19-
competency court back to the original court of jurisdiction. (CR:49–March 22,

2016, order entitled, “Order/Transfer”). The order stated, in pertinent part:

Be it remembered that on this date...came to be heard the question of
the present competency or incompetency of the Defendant.

The jury having been waived, and the parties having appeared in
Court, upon announcement of ready by both parties, the parties
presented evidence to the Court. Upon both parties resting and the
matter having been submitted to the Court, the Court after due
deliberation, made the following findings:

Defendant is competent to stand [trial] based on a report from Dr. Cynthia
Rivera.

(CR:49). In its order, the trial court further found that Jimenez had both “the

present ability to consult with his lawyer with a reasonable degree of rational

understanding” and “a rational understanding of the proceedings against him.”

(CR:49).8 Thereafter, the case proceeded to trial on the merits.

II. Texas’ competency statutes and applicable law on competency

Codifying the constitutional requirements that an incompetent defendant

may not be put to trial without violating due process, Texas’ statutory scheme

delineates the circumstances that require, and the procedures for making, a

determination on the matter of a defendant’s competency. See Turner v. State, 422

8
The order was signed by the trial-court judge, but the signature lines for the respective
parties were left blank. (CR:49).

-20-
S.W.3d 676, 689 (Tex.Crim.App. 2013). Article 46B.003 states that a person is

incompetent to stand trial if he presently lacks either: (1) a sufficient ability to

consult with his lawyer with a reasonable degree of rational understanding; or (2)

a rational and factual understanding of the proceedings against him. See TEX.

CODE CRIM. PROC. art. 46B.003(a)(1)-(2). Upon suggestion from any credible

source, including the trial court’s own observations, Chapter 46B requires the trial

court to conduct an “informal inquiry” to determine whether evidence exists to

justify a formal competency hearing. See TEX. CODE CRIM. PROC. art. 46B.004(a)-

(c-1); Turner, 422 S.W.3d at 691-92. If, after this first “informal inquiry,” setting

aside all evidence of competence, the trial court determines that there exists more

than a scintilla of evidence that may rationally lead to a conclusion that the

defendant is incompetent, unless the parties can agree without a trial that the

defendant is incompetent, the trial court must then conduct a formal competency

trial. See TEX. CODE CRIM. PROC. arts. 46B.004(c), (c-1); 46B.005(a)-(c); Turner,

422 S.W.3d at 692. However, unless a party, or the trial court on its own motion,

affirmatively requests a trial by jury, it is the trial court—not a jury—that makes

the determination of competency. See TEX. CODE CRIM. PROC. art. 46B.051(a),

(b); Turner, 422 S.W.3d at 692 n. 35 (noting that while the former statutory

scheme required that a jury be empaneled to determine competency, “under the

-21-
current statute, the trial court makes the ultimate determination with respect to

competency unless either of the parties or the trial court itself registers a

preference that ‘a jury shall make that determination.’”)(citing TEX. CODE CRIM.

PROC. art. 46B.051).

III. Because the trial court’s signed, written order shows that, upon a
formal hearing on the matter of competency, neither Jimenez, the State,
nor the trial court requested a jury trial on the issue of competency,
Jimenez has failed to demonstrate that he was unduly denied either a
competency trial by jury or a competency trial altogether.

Jimenez complains that he was “entitled to a formal adjudication of the

incompetency issue under Art. 46B.” See (Appellant’s Am. Br. at 11).9

Specifically, Jimenez asserts that because the trial court ordered a competency

examination, it must have had before it some evidence that could have supported a

finding of incompetency, thus meeting the threshold requirement for a formal

inquiry on the matter and entitling him to “a trial on the issue of incompetency

under subsection (b)” of Article 46B.005. See (Appellant’s Am. Br. at 11).

Relying on the lack of a reporter’s record of a competency trial in the record on

appeal, Jimenez asserts that no trial was conducted. See (Appellant’s Am. Br. at

11). Setting aside whether the trial court actually had before it any evidence to

9
Jimenez does not complain about the ultimate determination of competency, i.e., he
does not assert, let alone seek to establish, that he was actually incompetent to stand trial. See
(Appellant’s Am. Br. at 8-11).

-22-
meet the minimal threshold to initiate an informal inquiry in the first place,

Jimenez’ complaint that he was deprived of a trial altogether is entirely

unsupported by the record.

As discussed above, court documents filed in the trial court are entitled to a

presumption of regularity and truthfulness. See Breazeale, 683 S.W.2d at 450;

Keller, 125 S.W.3d at 605. Included in the record of this case is an order, signed

by the trial judge, establishing that a formal determination—albeit by the trial

court rather than a jury—was conducted on the matter of Jimenez’ competency to

stand trial. (CR:49–March 22, 2016, order entitled, “Order/Transfer”). In that

order, the trial judge noted that the parties “waived the jury,” “announced ready,”

“presented evidence,” and “rested” before submitting the issue to the trial court for

its determination, and that “after due deliberation,” the trial court determined that

Jimenez was competent. (CR:49). The trial court’s order (or competency

judgment) thus creates a presumption that the trial court actually undertook a

formal determination of Jimenez’ competency, and Jimenez has failed to present

any affirmative in the record to the contrary. See Breazeale, 683 S.W.2d at 450

(“[T]he formal judgment of the trial court carries with it a presumption of

regularity and truthfulness, and such is never to be lightly set aside.”); Keller, 125

S.W.3d at 605 (“A presumption of truthfulness and regularity applies to

-23-
documents filed in the trial court.”). And any “silence” in the record, by way of

the absence of a reporter’s record of the bench trial, cannot operate to rebut that

presumption. See Fields, 507 S.W.3d at 335-36 (relying on the presumption of

regularity in the judgment and holding that silence in the record on the

complained-of deficiency in the proceedings was insufficient to rebut that

presumption). As such, Jimenez’ complaint that he was denied “a trial” on the

issue of competency is without merit and directly refuted by the record.10 See

Breazeale, 683 S.W.2d at 450-51 (where judgment stated that appellant had

waived his right of trial by jury, no issue was made as to whether the jury had been

waived, appellant did not claim that he actually requested a jury trial, and the

record was otherwise silent as to appellant’s jury waiver, appellant failed to rebut

the presumption of regularity and truthfulness of the judgment).

10
To the extent that Jimenez’ complaint can be construed as complaining of his alleged
deprivation of a jury trial (rather than a trial altogether), any such complaint is without merit, as
Jimenez is required by statute to request a jury trial before he is entitled to one, and absent such a
request, it is the trial court that is the ultimate fact-finder on the issue of incompetency. See TEX.
CODE CRIM. PROC. art. 46B.051(a)(providing that “on the request of either party or the motion of
the court, a jury shall make the determination”)(emphasis added); TEX. CODE CRIM. PROC. art.
46B.051(b)(providing that “the court shall make the determination of incompetency if a jury
determination is not required by Subsection (a)”)(emphasis added); Turner, 422 S.W.3d at 692 n.
35 (noting that while the former statutory scheme required that a jury be empaneled to determine
competency, “under the current statute, the trial court makes the ultimate determination with
respect to competency unless either of the parties or the trial court itself registers a preference
that ‘a jury shall make that determination.’”)(emphasis added).

-24-
 For this reason, Jimenez’ competency-trial claim is meritless and

unsupported by the record, and this Court should thus overrule Jimenez’ second

issue.

-25-
 THE STATE’S REPLY TO JIMENEZ’ THIRD AND FOURTH ISSUES11

Because Jimenez failed to object to the State’s alleged impermissible pursuit
of both a conviction and a deadly-weapon finding on the basis of his
possession of the same deadly weapon, he has waived his right to complain on
that basis on appeal, and his third issue should be overruled for this reason
alone. But even if Jimenez preserved his complaint, because the evidence
showed that, rather than merely possessing the shank, Jimenez affirmatively
employed the shank for the specific purpose of inflicting, at the very least,
serious bodily injury on at least one of the officers attempting to remove him
from his cell, Jimenez’ use of the shank actually facilitated both his
commission of the underlying offense (possession of the shank) and his flight
therefrom, thus meeting the “facilitation-nexus” rule under Plummer and
making the entry of an affirmative deadly-weapon finding proper (Issue
Three). And because: (1) the manner of Jimenez’ use and intended use
created a threat of present physical harm to the officers in the vicinity; and
(2) the undisputed evidence showed that the shank was adapted for the
purpose of inflicting serious bodily injury or death, the evidence in support of
the affirmative-deadly weapon finding was legally sufficient (Issue Four). As
such, the trial court’s entry of a deadly-weapon finding was proper, and
Jimenez’ third and fourth issues should be overruled.

ARGUMENT AND AUTHORITIES

In his third issue, Jimenez asserts that the judgment’s affirmative deadly-

weapon finding was precluded by virtue of the type of offense for which he was

convicted. Specifically, Jimenez argues that because the offense (possession of a

prohibited item in a correctional facility) was complete upon his possession of the

prohibited weapon, his “mere possession” could not serve to facilitate the

11
Because Jimenez’ third and fourth issues both challenge the appropriateness of the
judgment’s deadly-weapon finding, the State will address both issues in a single reply.

-26-
prohibited-weapon offense, such that the deadly-weapon finding was entered in

error and should be deleted from the judgment. See (Appellant’s Am. Br. at 11-

12). And in his fourth issue, Jimenez asserts that the evidence was legally

insufficient to show that the manner in which he used or intended to use the

“shank” was capable of causing serious bodily injury or death, such that the

deadly-weapon finding should be deleted on this basis, as well. See (Appellant’s

Am. Br. at 12-13). But because Jimenez did more than merely possess the shank

(Issue Three), and because the evidence showed that Jimenez employed and

intended to use the shank for the specific purpose of inflicting serious bodily

injury or death, the very purpose for which the shank had been manifestly adapted,

(Issue Four), the deadly-weapon finding was properly entered and supported by

the evidence, and Jimenez’ third and fourth issues should be overruled.

I. Underlying Facts

In addition to the facts set out above, which the State herein relies on and

adopts, the record further shows that the indictment alleged that Jimenez used and

exhibited a deadly weapon, namely, a sharpened wire, during the commission of,

and immediate flight from, the charged offense. (CR:9).

At trial, the jury was charged that if it found beyond a reasonable doubt that

Jimenez, on or about the alleged date, intentionally or knowingly possessed a

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deadly weapon, to wit: a sharpened wire, that in the manner of its use and intended

use was capable of causing death or serious bodily injury, while in a correctional

facility, then it should find Jimenez guilty “as charged in the indictment.”

(CR:230). The court’s charge also defined “deadly weapon” as:

[A] firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury or anything in the
manner of its use or intended use that is capable of causing death or serious
bodily injury.

(CR:229-30). The jury returned a general verdict, expressly finding Jimenez

guilty “as charged in the [i]ndictment.” (CR:233). Thereafter, the trial court

entered in the judgment an affirmative deadly-weapon finding.

(CR:243–judgment reflecting “sharpened wire” under the deadly-weapon section

of the judgment).

II. Because the evidence showed that, rather than merely possessing the
shank, Jimenez affirmatively employed the shank for the specific
purpose of inflicting, at the very least, serious bodily injury on at least
one of the officers attempting to remove him from his cell, Jimenez’ use
of the shank actually facilitated both his commission of the underlying
offense (possession of the shank) and his flight therefrom, thus meeting
the “facilitation-nexus” rule under Plummer. As such, the trial court’s
entry of a deadly-weapon finding was proper (Issue Three).

Citing Plummer v. State, 410 S.W.3d 855 (Tex.Crim.App. 2013); Ex parte

Petty, 833 S.W.145 (Tex.Crim.App. 1992), abrogated on other grounds by Ex

parte Nelson, 137 S.W.3d 666 (Tex.Crim.App. 2004); Narron v. State, 835

-28-
S.W.2d 642 (Tex.Crim.App. 1992); and Patterson v. State, 769 S.W.2d 938

(Tex.Crim.App. 1989), Jimenez asserts that the deadly-weapon finding in his

judgment should be deleted because his mere possession of the shank cannot, as a

matter of law, facilitate his commission of a prohibited-weapon offense because

such an offense is not a “collateral, separate offense.” See (Appellant’s Am. Br. at

11). Specifically, Jimenez reasons that because the shank was the basis of both his

prohibited-weapon conviction and the deadly-weapon finding, this type of

“double-dipping” was impermissible under the Court of Criminal Appeals’ deadly-

weapon jurisprudence. See (Appellant’s Bt. at 12–wherein Appellant asserts that

“[t]he sharpened wire was the basis for his conviction and the deadly weapon

finding in his case....This is contrary to the holding in all the Tex. Crim. App.

cases cited above.”).

As will be discussed below, aside from the fact that Jimenez wholly failed

to preserve his complaint, Jimenez’ contentions are flawed in several respects.

First, Jimenez’ assertion that a deadly weapon cannot form both an element of the

underlying felony and the basis of the deadly-weapon finding itself has been flatly

rejected by the Court of Criminal Appeals and is thus without any merit. Second,

while it is true that under Narron, an affirmative deadly-weapon finding is barred

where the prohibition of the deadly weapon’s possession itself is the gravamen of

-29-
the offense and the deadly-weapon finding is based solely on the mere possession

of that very weapon, in this case, Jimenez did more than “merely possess” the

shank, and thus, Narron simply does not apply. And finally, under Narron,

Patterson, and Plummer, even “mere” possession can form the proper basis of a

deadly-weapon finding if it nonetheless “facilitates” the commission of the

underlying felony, and here, Jimenez’ employment of the shank facilitated his

commission of the prohibited-weapon offense because it enabled not only his

initial possession of it, but also his continued possession and flight therefrom.

A. Because Jimenez never objected to the State’s alleged improper
attempt to pursue both a conviction and a deadly-weapon finding
on the basis of the same deadly weapon, Jimenez failed to
preserve his complaint and presents nothing for review.

Jimenez complains that because the State sought to convict him for

unlawfully possessing a deadly weapon in a penal institution, the trial court was

precluded form entering an affirmative deadly-weapon finding upon the basis of

the very weapon he was convicted of illegally possessing. See (Appellant’s Am.

Br. at 12). The indictment in this case alleged that Jimenez illegally possessed a

prohibited weapon, to wit: a sharpened wire, and that he also used and exhibited a

deadly weapon—that very-same sharpened wire—during his commission of, and

flight from, the charged offense. (CR:9). Yet, Jimenez never objected to the

indictment on that basis or otherwise alerted the trial court that he believed the
-30-
State was precluded from seeking both a conviction and a deadly-weapon finding

on the basis of the same item possessed (the sharpened wire). It is a well-settled

principle of law that to preserve a complaint for appellate review, a defendant

must object timely to the trial court. See, e.g., TEX.R.APP .P. 33.1; Pena v. State,

285 S.W.3d 459, 463-64 (Tex.Crim.App. 2009); Rhoades v. State, 934 S.W.2d

113, 120 (Tex.Crim.App. 1996).12 By failing to alert the trial court that he

believed the State to be legally precluded from seeking a deadly-weapon finding in

addition to seeking a conviction for his illegal possession thereof, Jimenez failed

to preserve his complaint for review, and for this reason alone, this Court should

overrule his third issue. See Keller, 125 S.W.3d at 603 (where appellant

complained on appeal that it was legally impossible for him to be convicted of

using or exhibiting a deadly weapon during the course of the solicitation offense

because the offense was already complete when the weapon was recovered,

appellant waived any such claim when he raised no issue or otherwise alerted the

trial court to his objection to the legality of his guilty plea and conviction).

12
The State recognizes that legal-sufficiency claims are ordinarily exempt from the usual
preservation requirements. However, as discussed below, at least one Texas court of appeals has
regarded a claim such as the one brought forth by Jimenez in his third issue as the type that is
still subject to the general preservation and waiver rules.

-31-
 B. The Court of Criminal Appeals has expressly held that any felony
is theoretically susceptible to a deadly-weapon finding, even if the
use of the weapon itself also serves to fulfill one of the elements of
the offense.

While Jimenez contends that because the shank served to fulfill one of the

elements of the offense for which he was convicted, it could not then also supply

the basis of the deadly-weapon finding, the Court of Criminal Appeals has

expressly rejected such an argument. The appellant in Tyra, relying on Narron

and Ex parte Petty (like Jimenez does here), argued that a deadly weapon could

never be “used” within the meaning of Texas’ statutes unless is was utilized to

achieve the commission of a felony “separate and distinct” from “mere”

possession, i.e., if the weapon was used to commit the offense, then it could not

also be used to support a deadly-weapon finding. See Tyra v. State, 897 S.W.2d

796, 798 (Tex.Crim.App. 1995); see also (Appellant’s Am. Br. at 12). In rejecting

the appellant’s contention, the Court of Criminal Appeals reasoned that the phrase

“use or exhibition of a deadly weapon” under article 42.12 § 3g(a)(2)13 was subject

to the “broadest possible understanding in [the] context of which it was reasonably

13
Effective January 1, 2017, Chapter 42A of the Code of Criminal Procedure replaced
article 42.12 of the Code of Criminal Procedure, purporting to be a non-substantive revision of
article 42.12 in its entirety. TEX. H.B. 2299, 84TH LEG., R.S. (2015). Because Jimenez was
convicted on April 18, 2017, and the deadly-weapon finding was entered in the judgment on
April 24, 2017, article 42A.054(b), which makes the same provisions for deadly-weapon findings
as did its article 42.12 predecessor, applies here.

-32-
susceptible in ordinary English” and held that Narron and Ex parte Petty “do not

stand for the proposition that [the statutory phrase] necessarily means ‘used or

exhibited a deadly weapon during the commission of an offense which does not

otherwise require the use or exhibition of a deadly weapon.’” Tyra, 897 S.W.2d at

798 (emphasis added). The Court further explained that the fact that an offense

may, by its very nature, always involve the use of a deadly weapon does not

change the meaning of the statutory phrase “used a deadly weapon,” as “there is

simply nothing in the phrase...to imply that it must always be used to commit an

‘associated offense.’” Id.14

Thus, as will be discussed below, the question is not whether the deadly

weapon also served to fulfill an element of the offense (and was thus barred, as

Jimenez asserts), but rather, whether the use (including simple possession) or

exhibition of the weapon actually facilitated the commission of, or flight from, the

underlying felony.

14
In a concurring opinion, Judge Baird, reiterating that a deadly-weapon finding was not
barred per se in prohibited-weapon cases, elaborated on the Court’s holdings in Narron and Ex
parte Petty, stating that the fact that those cases involved an offense that sought to punish the
actual possession of a weapon “did not preclude an affirmative finding in a prosecution for illegal
possession of a firearm where the weapon is employed in some manner in addition to its mere
possession.” Id. at 801 (Baird, J., concurring).

-33-
 C. Narron, Ex parte Petty, Patterson, and Plummer—the “facilitation-
nexus” rule

In Narron, the defendant was convicted of possession of a prohibited

weapon, a short-barrel shotgun, and the trial court entered an affirmative deadly-

weapon finding. See Narron, 835 S.W.2d at 642. In a per curium opinion,

reasoning that the facts of that case were distinguishable from those in Patterson

(in which the defendant “used” the weapon to protect his possession of illegal

drugs in that it inherently facilitated his possession of the contraband, see

Patterson, 769 S.W.2d at 941-42),15 the Court of Criminal Appeals held that

“because there was no associated felony facilitated by appellant’s possession of

the [short-barrel shotgun],” appellant did not “use” the weapon to achieve his

commission of the felony offense “separate and distinct from ‘mere’ possession.”

See Narron, 835 S.W.2d at 644 (emphasis added); see Patterson, 769 S.W.2d at

941 (“use” of a deadly weapon in this context includes “simple possession” if it

facilitates the associated felony). And that same day, the Court of Criminal

Appeals likewise held in Ex Parte Petty that a deadly-weapon finding based

15
The Patterson Court, adopting the 2nd Circuit’s reasoning in United States v. La
Guardia, 774 F.2d 317 (8th Cir. 1985), that “weapons had undoubted utility in the protection of
the valuable supply and cash on hand,” reasoned that appellant’s simple possession of the firearm
had utility in his protection of the drugs, even though, when officers executed a search warrant
and found appellant sitting on the living-room sofa, all appellant did was inform the officers that
he had a gun in a gun boot situated between his left leg and the end of the sofa, but announced
that he “[was] not going to touch it.” See Patterson, 769 S.W.2d at 939, 941-42.

-34-
“solely on [appellant’s] unlawful possession of a handgun, the only offense with

which [he] was charged,” was entered in error. See Ex parte Petty, 833 S.W.2d at

145-46 (emphasis added).

But in its 2013 decision in Plummer, the Court of Criminal Appeals

clarified the Narron-Patterson rule, expressly recognizing three specific

expansions of the rule: (1) the deadly-weapon statutory definition “includes any

instrument that threatens or causes serious bodily injury, even when [it] is not

inherently or intentionally deadly”; (2) deadly-weapon findings are permitted

“when the jury [can] infer, in the absence of actual harm or threat, that the weapon

‘facilitated’ the associated felony;” and (3) deadly-weapon findings could be

proper even when the weapon is not found on or near the defendant, if such

passive possession of the weapon facilitated the commission of the offense. See

Plummer, 410 S.W.3d at 859 (emphasis in original). And in summarizing the

outer limits on permissible deadly-weapon findings, the Court of Criminal

Appeals reiterated its “facilitation-nexus” rule, requiring that the possession of the

weapon, be it active or passive (“mere”) possession, actually facilitate the

commission of the offense, even if the use or exhibition of the deadly weapon

operates to both fulfill an element of the offense and supply the basis of the

deadly-weapon finding itself. See Plummer, 410 S.W.3d at 860-61 (stating that a

-35-
weapon’s inherent “persuasive impact” can facilitate an offense, as in the case of a

solicitation-of-capital-murder offense, because the “mere” possession of the

weapon during the course of the defendant’s request “enhances” his solicitation

request; that a deadly-weapon finding is proper when the weapon facilitates the

underlying offense even though it was not overtly used; and that displaying,

without overtly using, a deadly weapon to threaten harm while committing a

felony “still provides intimidation value that assists the commission of the felony,”

explaining that “the determining factor is that the deadly weapon was ‘used’ in

facilitating the underlying crime)(emphasis in original).16

In short, the culmination of the Narron, Ex parte Petty, and Patterson line

of cases is this: without regard to whether the deadly weapon itself was an

instrumentality of the underlying offense, (1) “mere” possession of a deadly

weapon is sufficient to support a deadly-weapon finding if it nonetheless

facilitates the commission of the offense; and (2) conversely, overt “use” of the

16
Contrary to Jimenez’ assertions, the Plummer Court did not set out a bright-line rule
that “mere possession of a deadly weapon during a felony offense is not covered by the statute.”
See (Appellant’s Am. Br. at 12). Rather, based on the above-detailed discussion, the Court
ultimately found that there was “no facilitation connection” between the deadly weapon (the
mere wearing of a handgun on a holster belt) and the underlying offense (possession of body
armor), in that there was no evidence that the possession of one facilitated the other—in other
words, appellant did not “use” the handgun to contribute to the result of simply wearing the
prohibited body armor. See Plummer, 410 S.W.3d at 864. Thus, the Court’s decision hinged not
on whether appellant “merely possessed” the deadly weapon, but rather on whether his mere
possession of it facilitated the underlying felony.

-36-
weapon, despite being more than “mere” possession, does not support a deadly-

weapon finding if it nonetheless does nothing to facilitate the offense. See

Plummer, 410 S.W.3d at 863-64 (applying the facilitation-nexus rule to several

hypothetical scenarios, concluding that: a bank robber who tells the teller he has a

gun but does not display or otherwise employ the gun nonetheless has “used” the

gun as a deadly weapon because it facilitated his robbery; that a butcher that,

while prominently displaying an 18-inch knife, illegally dispenses cooking oil into

a nearby lake has not “used or exhibited” the knife because it in no way facilitated

the unauthorized-discharge felony; and that an intoxicated driver that prominently

displays his hunting rifle on a rack in the cab of his truck has not “used or

exhibited” a deadly weapon because the rifle’s display was wholly unrelated to the

commission of the DWI-felony offense).

As will be discussed below, Jimenez’ possession and use of the shank meets

Plummer’s facilitation-nexus rule.

D. Jimenez’ use of the shank actually facilitated both his commission
of the predicate offense (possession of the shank) and his flight
therefrom, thus meeting the facilitation-nexus rule.

Here, the record shows that Jimenez did more than merely possess the

shank; instead, Jimenez put the shank into action in a manner that increased the

risk of harm to any one of the officers in the vicinity and enabled, continued, and

-37-
enhanced his possession of the shank (the prohibited weapon), such that he “used”

and “exhibited” the shank to facilitate his commission of the underlying felony.

The testimony of Sgt. Santana and D.O. Ortega showed that Jimenez, in an

emotionally charged and agitated state, refused to cooperate with officers and

became physically violent, (RR3:21-25, 126-27); that when officers attempted to

transfer him to the jail’s violent cell, Jimenez retrieved a metal shank, secured it

onto his hand by wrapping a towel around it, held it with a clenched fist while the

sharp edge of the wire protruded out in front of him, and then threatened to “fuck

somebody up” as soon as the officers opened his cell door, (RR3:25-26, 77, 127-

31, 134); and that when officers repeatedly attempted to dissuade Jimenez and talk

him into giving up the shank, Jimenez continued to pace inside his cell with the

shank in hand, insisting that he simply did not care about the consequences of his

actions and repeatedly asserting that he was going to hurt one of the officers and

“fuck somebody up.” (RR3:26-27, 77, 134). And while Jimenez ultimately

relinquished the shank, he did not do so before repeatedly refusing D.O. Ortega’s

numerous instructions to give up the shank and, time and again, threatening to

“fuck up” one of the officers as soon as they opened his cell door. (RR3:26-27,

77, 134, 143). In doing so, Jimenez employed the shank to his advantage, using

the shank’s persuasive effect of creating a danger of death or seriously bodily

-38-
injury (by taking it into his hand and putting it into action for the purpose of

harming the officers), thus ensuring that the officers would not be able to

dispossess him of the shank—or at least not without risking serious bodily injury

or death. (RR3:37–wherein Sgt. Santana testified that the shank was a deadly

weapon because it could be used to stab someone in the neck, eye, head, or

elsewhere and cause serious bodily injury or death); (RR3:137–wherein D.O.

Ortega testified that Jimenez could have hurt or killed him with the shank); see

also Tyra, 897 S.W.2d at 798; Patterson, 769 S.W.2d at 940-41 (cases noting that

the verb “use” can mean a number of things, including “to have recourse to or

enjoyment of” a thing, “to put into action or service,” “to apply to advantage,” or

“to utilize”). In other words, in the course of threatening the officers with a shank

he demonstrated—by overt action—he was ready to deploy, Jimenez deterred the

officers from attempting to dispossess him of it, thus aiding and protecting (and

thereby facilitating) his continued possession of the shank. And in creating a risk

of harm to the officers, deterring them from attempting to physically apprehend

him, Jimenez’ use of the shank ultimately aided in his “flight” from the offense.

Indeed, by taking the shank into his hand, Jimenez caused D.O. Ortega to

immediately retreat and close the door to his cell, and D.O. Ortega never attempted

to re-enter the cell, even after Jimenez finally relinquished the shank. (RR3:25-26,

-39-
136-139). Simply, by arming himself with the shank in the manner that he

did—by holding it at the ready in his right hand and assuring the officers that he

would use it to “fuck them up” as soon as they opened his cell door—such that

anyone would be deterred from even attempting to dispossess him of it, Jimenez’

use of the shank actually facilitated his commission of the prohibited-weapon

felony and his immediate flight therefrom. See Dowdle v. State, 11 S.W.3d 233,

238 (Tex.Crim.App. 2000)(citing with approval the Austin Court of Appeals’

reasoning in Patterson that use “certainly refers to the wielding of a firearm with

effect, but it extends as well to any employment of a deadly weapon, even its

simple possession, if such possession facilitates the associated felony” and holding

that where a deadly weapon is deliberately situated for the convenient access by

the defendant for the specific purpose of assisting him in the unimpeded

commission of the offense, the defendant has “used” the deadly weapon); Tyra,

897 S.W.2d at 801 (citing Garner v. State, 864 S.W.2d 92, 103

(Tex.App.–Houston [1st Dist.] 1993, pet. ref’d), and explaining that where, exactly

like the situation in this case, “a felon possessing a firearm exposed the weapon to

prevent others from taking it, the weapon would have been ‘used’ for the purposes

of a deadly[-] weapon finding” in a possession-of-firearm-by-felon prosecution).

-40-
 For these reasons, because the evidence showed that Jimenez used and

exhibited the shank in order to facilitate his continued possession of the shank and

the commission of the prohibited-weapon offense and his flight therefrom,

Jimenez has failed to show that the deadly-weapon finding was barred as a matter

of law. Accordingly, Jimenez’ third issue should be overruled.

III. Because the evidence showed that Jimenez effectuated a threat of
present harm to the officers situated in close physical proximity to his
cell, and because the evidence established that the shank had been
adapted for the purpose of inflicting death or serious bodily injury, the
evidence was legally sufficient to support the deadly-weapon finding
(Issue Four).

In his fourth issue, Jimenez asserts that he was never “in a position to injure

anyone” because neither Sgt. Santana nor D.O. Ortega testified that they were “in

fear of bodily injury” and Jimenez remained at all times during the incident locked

in his cell, such that the evidence of his use and intended use of the shank was

insufficient to meet the statutory definition of a deadly weapon and the deadly-

weapon finding should be deleted from the judgment. See (Appellant’s Am. Br. at

13).17 In other words, Jimenez asserts that because he was incapable of actually

causing death or serious bodily injury with the shank, the evidence was

17
In his brief, Jimenez specifically prays only that the affirmative deadly-weapon finding
be deleted and does not otherwise challenge the sufficiency of the evidence of his conviction.
See (Appellant’s Am. Br. at 12-13)

-41-
insufficient to show that the shank was a deadly weapon. See (Appellant’s Am.

Br. at 13).

For the reasons that follow, Jimenez’ contention is without merit and should

be overruled.18

A. Generally applicable law and standard of review

The Texas Penal Code defines “deadly weapon” as:

(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.

18
In Jimenez’ argument section for issue four, he alludes to the fact that “in addition, a
deadly weapon special issue was not submitted to the jury as a special issue and [sic] neither in
the guilt-innocence jury charge nor the punishment charge.” See (Appellant’s Am. Br. at 13). To
the extent that Jimenez asserts that the trial court was barred from entering an affirmative deadly-
weapon finding unless the issue of a deadly weapon was specifically submitted to the jury as a
special issue, well-settled case law holds the contrary.
The record shows that the indictment contained a deadly-weapon allegation, specifically,
that Jimenez used and exhibited a deadly weapon, to wit: a sharpened wire, during the
commission of, and immediate flight from, the charged offense. (CR:9). The jury returned a
general verdict, expressly finding Jimenez guilty “as charged in the [i]ndictment.” (CR:233).
Thus, because the jury found Jimenez guilty as charged in the indictment, which indictment
contained a deadly-weapon allegation, pursuant to the jury’s general verdict, the trial court was
authorized to enter an affirmative deadly-weapon finding in the judgment. See, e.g., Crumpton v.
State, 301 S.W.3d 663, 665 (Tex.Crim.App. 2009)(where the indictment expressly alleges that
appellant committed the offense by using a deadly weapon, the jury’s guilty verdict finding
appellant guilty “as included in the indictment” was necessarily a finding that a deadly weapon
was used to commit the offense, authorizing the trial court to enter an affirmative deadly-weapon
finding in the judgment); Polk v. State, 693 S.W.2d 391, 394 (Tex.Crim.App. 1985)(“[I]f the
indictment by allegation specifically places the [deadly weapon] issue before the trier of fact...,
then an affirmative finding is de facto made when the defendant is found guilty ‘as charged in the
indictment.”). Any complaint by Jimenez in this regard is thus without any merit and should be
overruled.

-42-
TEX. PENAL CODE § 1.07(a)(17)(A)-(B)(emphasis added). “Serious bodily injury”

is, in turn, defined as “bodily injury that 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. PENAL CODE § 1.07(a)(46).

In reviewing the sufficiency of the evidence, in order to determine whether

any rational juror could have found all the elements of the charged offense beyond

a reasonable doubt, viewing the evidence in the light most favorable to the verdict,

a reviewing court considers the combined and cumulative force of all of the

evidence admitted, along with all reasonable inferences therefrom. See Johnson v.

State, 509 S.W.3d 320, 322 (Tex.Crim.App. 2017); Matlock v. State, 392 S.W.3d

662, 667 (Tex.Crim.App. 2013). Specifically, with respect to whether the State

has proven that an object is a deadly weapon (and contrary to Jimenez’ contentions

on appeal), the Court of Criminal Appeals has expressly rejected any notion that

the State must show that a weapon was “capable” (in the manner of its actual use)

of causing serious bodily injury or death. See Thomas v. State, 821 S.W.2d 616,

620 (Tex.Crim.App. 1991)(“It is not necessary to verify that the object was really

capable of causing death, either in the manner of its actual use or in the manner of

its intended use.”). After all, the manner of the defendant’s intended use of the

weapon, or its manifest design or adaptation, alone, can supply a sufficient basis

-43-
for finding that the item used by the defendant was, indeed, “deadly.” See

Johnson, 509 S.W.3d at 323 (stating that a deadly-weapon finding is sufficiently

supported by the evidence if the fact-finder could rationally find that the defendant

either “used the [weapon] in such a way, or intended to use [the weapon] in such a

way, that it was capable of causing serious bodily injury or death”)(emphasis

added); Thomas, 821 S.W.2d at 620 (holding that the State may prove that an

object is a deadly weapon “by adducing sufficient evidence that it was, in fact,

‘manifestly designed, made, or adapted for the purpose of inflicting death or

serious bodily injury[.]’ If the evidence is adequate for such purpose, then it is

sufficient to establish the object as a deadly weapon. No other proof is required.”);

Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App. 1986)(“The State must

prove the [weapon] alleged is capable of causing serious bodily injury or death in

the manner of its use or intended use.”)(emphasis in original); Denham v. State,

574 S.W.2d 129, 130 (Tex.Crim.App. 1978)(noting that the current penal-code

definition specifically includes the weapon’s “intended use”).

In determining whether a weapon is deadly in its manner of use or intended

use, a reviewing court considers, but is not necessarily bound by: (1) the words

and other threatening actions by the defendant, including the proximity to the

victim; (2) the weapon’s ability to inflict serious bodily injury or death, including

-44-
the size, shape, and sharpness of the weapon; and (3) the manner in which the

defendant used the weapon. See Johnson, 509 S.W.3d at 323 (listing the above-

mentioned factors but explaining that they “are just factors used to guide a court’s

sufficiency analysis; they are not inexorable commands”). Ultimately, each case

must be examined on its own facts to determine whether the manner of use or

intended use of the weapon was such as to allow the fact-finder to infer that a

weapon was deadly. See Brown, 716 S.W.2d at 946-47; Fisher v. State, 01-11-

00516-CR, 2013 WL 4680226, at *3 (Tex.App.–Houston [1st Dist.] Aug. 29, 2013,

pet. ref’d)(mem.op.)(not designated for publication).

B. Because, via his use and intended use of the shank, Jimenez
created a threat of present harm to the officers in the immediate
surrounding area, the evidence was sufficient to support an
affirmative deadly-weapon finding.

Jimenez appears to argue that because it was not possible for him to actually

injure any of the officers after they effectively prevented him from carrying out his

intended purpose (by closing his cell door upon discovering the shank in his hand

and ultimately persuading him to relinquish the shank), the shank was not a

“deadly” weapon. See (Appellant’s Am. Br. at 13). Jimenez’ contentions miss the

mark, as it is well-settled that a defendant need not actually inflict injury on

another in order for the weapon to constitute a “deadly” one, nor does the presence

of a physical barrier foreclose the infliction of a threat of present harm. See

-45-
Johnson, 509 S.W.3d at 323 (“[A] defendant need not have actually inflicted harm

on the victim”)(citing Brown, 716 S.W.2d at 946); Denham, 574 S.W.2d at 130;

Hillburn v. State, 627 S.W.2d 546, 548 (Tex.App.–Amarillo 1982, no

pet.)(holding that threat of bodily injury was imminent despite the fact that

appellant, who brandished a knife while threatening the victim, could not have

consummated his threat because “locked car doors negated any ability to cause

physical harm” to the victim); Black v. State, No. 2-05-338-CR, 2006 WL

2507325, at *4 (Tex.App.–Fort Worth Aug. 31, 2006, pet. ref’d)(mem.op.)(not

designated for publication)(holding that appellant had the present ability to carry

out his threat to “slice up” the victim even though appellant and the victim each

sat in separate cars when appellant made the threat).

Here, even though Jimenez was temporarily prohibited from carrying out his

threat to “fuck up” the officers with his shank after D.O. Ortega retreated from

Jimenez’ cell and locked the door (assuming that none of the officers were close

enough to the cell door or to Jimenez such that he could have stabbed any one of

them through the mesh lining or the food-transfer slot of the door), Jimenez

announced his intent to assault at least one of the officers as soon as they opened

his door—something that, as indicated by the officers’ deployment of the SRT,

would soon come to pass. (RR3:27, 134-35). Because D.O. Ortega and the

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remaining officers had an unconditional right to open Jimenez’ cell door, Jimenez’

threats to assault the officers as soon as they opened his cell door—something

Jimenez was aware the officers were certain to do so that they could transfer him

to the violent cell—were not contingent on some future, remote event. Indeed,

Jimenez, by retrieving the shank, holding it at the ready, and threatening to “fuck

someone up” as soon as they opened his door, demonstrated his present ability to

make good on his threats. See Tanksley v. State, 656 S.W.2d 194, 196

(Tex.App.–Austin 1983, no pet.)(because jailer had the unconditional right to open

the jail door at the time appellant, who held up a shank fashioned out of a

sharpened toothbrush to the glass window of the his cell door, threatened to stab

the jailer in the eye and pull it out the next time the jailer opened the door,

appellant still threatened the jailer with imminent bodily harm and was thus guilty

of aggravated assault, even though the cell door was locked); Black, 2006 WL

2507325 at *4 (because appellant did not condition his threat on some future,

remote event, a reasonable inference could be made that appellant would carry out

his threat when he accompanied the victims to their house, and appellant, who

held the knife so that the victims could see it, effectuated a threat of present harm

to the victims). Simply, contrary to Jimenez’ contention on appeal that he had no

present ability to carry out his threats (and thus did not possess a “deadly”

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weapon), because Jimenez had no right to prevent D.O. Ortega from opening his

cell door by means of his threats—which were made on the condition that D.O.

Ortega forego doing precisely what he had a right to do at the very instant of

Jimenez’ repeated threats—Jimenez’ threats did, in fact, pose a present threat of

physical harm to the officers at all times during his possession of the shank, as

well as his flight therefrom. See Tanksley, 656 S.W.2d at 196; Black, 2006 WL

2507325 at *4.

And, as discussed above, notwithstanding whether the manner of Jimenez’

actual use of the weapon was deadly, the manner of Jimenez’ express intended

use—to “fuck someone up” and hurt one of the officers with a shank that the

officers knew could be used to seriously hurt or kill someone—certainly was. See

Johnson, 509 S.W.3d at 323; Brown, 716 S.W.2d at 946; Denham, 574 S.W.2d at

130. For these reasons, Jimenez’ fourth issue should be overruled.

C. Even if the shank was not a deadly weapon in the manner of its
use or intended use, it was still a deadly weapon by adaptation.

As discussed above (and without waiving any of the foregoing), even if the

evidence of the manner in which Jimenez used or intended to use the shank was

insufficient to establish that the shank was a deadly weapon, because the

undisputed evidence established that the shank was adapted for the specific

purpose of inflicting serious bodily injury or death, the State was not required to

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prove either that the shank was actually capable of inflicting serious bodily injury

or death or that Jimenez had the present ability to carry out his express threats.

See Thomas, 821 S.W.2d at 620 (explaining that “it is not necessary to verify that

the object was really capable of causing death, either in the manner of its actual

use or in the manner of its intended use” and holding that the State may prove that

an object is a deadly weapon “by adducing sufficient evidence that it was, in fact,

‘manifestly designed, made, or adapted for the purpose of inflicting death or

serious bodily injury[.]’ If the evidence is adequate for such purpose, then it is

sufficient to establish the object as a deadly weapon. No other proof is required.”).

The testimony of Sgt. Santana and D.O. Ortega showed that the shank,

comprised of a piece of metal fencing, had obviously been sharpened to a point by

either Jimenez himself or someone else and that such could be easily

accomplished by rubbing and pressing the end of the wire against a variety of hard

surfaces accessible to inmates, such as the cement floors and walls in their cells.

(RR3:14, 54-55, 75-76, 121). Sgt. Santana and Sgt. Ende noted that the shank had

been adapted in a way as to contain a handle on one end, both in the alteration of

the edge of the wire itself and by Jimenez’ use of a white towel to aid in securing

it to his hand for its intended use. (RR3:35, 76, 91). Sgt. Santana’s and D.O.

Ortega’s testimony indicated that the “shank” used by Jimenez—a term reserved

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for make-shift items that had been adapted for the “unsafe” purpose of seriously

injuring or killing someone—could cause serious injury, even death, if used to

stab someone in the neck, eye, head, or anywhere on the body. (RR3:36-37, 42,

120-21, 137-38).

As such, even if the manner of Jimenez’ actual use or intended use of the

shank was not capable of causing serious bodily injury or death, the State proved

that the shank was nonetheless adapted for that very purpose, and thus, because

the shank constituted a deadly weapon by adaptation, the State was not required to

present any additional proof in support of the deadly-weapon finding. See Smith v.

State, 51 S.W.3d 806, 809 (Tex.App.–Texarkana 2001, no pet.)(a “shank”

comprised of a sharpened piece of metal lodged in the toilet of a cell, which was

described by a witness as an instrument used to cause serious death or bodily

injury, constituted a deadly weapon by adaptation); Shugart v. State, 32 S.W.3d

355, 360 (Tex.App.–Waco 2000, pet. ref’d)(holding that an ice-pick type weapon,

sharpened to a point with a cloth wrapped at one end for a handle, described as a

“shank,” was a deadly weapon by adaptation); Crittendon v. State, 923 S.W.2d

632, 635 (Tex.App.–Houston [1st Dist.] 1995, no pet.)(a “shank” found during a

search of appellant’s cell, which an officer described as a metal rod with a

sharpened tip and paper handle and a type of object used to inflict serious bodily

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injury or death, was a deadly weapon by adaptation); Basden v. State, No. 01-01-

00666-CR, 2002 WL 31771167, at *2 (Tex.App.–Houston [1st Dist.] Dec. 12,

2002, pet. ref’d)(not designated for publication)(evidence describing the shank

found in appellant’s cell as a metal object that was not in its original shape and

form, had been adapted to be capable of causing serious bodily injury or death,

was immediately recognized to be a deadly weapon in that it had been sharpened

to look like a knife, and could be used to stab somebody in the head or neck was

legally sufficient to prove the shank was a deadly weapon by adaptation); see also

TEX. PENAL CODE § 1.07(a)(17)(A); Thomas, 821 S.W.2d at 620.

The evidence was thus legally sufficient for the jury to have found that

Jimenez used or exhibited a “deadly weapon” during his commission of, or flight

from, the underlying offense, and Jimenez has failed to show that the trial court’s

entry of the affirmative deadly-weapon finding was made in error. For this final

reason, Jimenez’ fourth issue is without merit and should be overruled.

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 PRAYER

WHEREFORE, the State prays that Jimenez’ request to have the affirmative

deadly-weapon finding deleted from the judgment be denied and that his

conviction and sentence be affirmed.

Respectfully submitted,

JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT

/s/ Raquel López
RAQUEL LOPEZ
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY’S OFFICE
201 EL PASO COUNTY COURTHOUSE
500 E. SAN ANTONIO
EL PASO, TEXAS 79901
(915) 546-2059 ext. 4503
FAX (915) 533-5520
raqlopez@epcounty.com
SBN 24092721

ATTORNEYS FOR THE STATE

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 CERTIFICATE OF COMPLIANCE

The undersigned does hereby certify that the foregoing document contains

12,330 words.

/s/ Raquel López
RAQUEL LOPEZ

CERTIFICATE OF SERVICE

The undersigned does hereby certify that on May 25, 2018, a copy of the

foregoing State’s brief was sent by email via the e-file system to appellant’s

attorney: Peter R. Escobar, escobaroffice_mail@sbcglobal.net.

/s/ Raquel López
RAQUEL LOPEZ

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