Opinion issued October 24, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01041-CR
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KELVIN BERNARD ALEXANDER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Case No. 1536145
MEMORANDUM OPINION
A jury convicted appellant, Kelvin Bernard Alexander, of the offense of
aggravated assault of a family member.1 Appellant pleaded true to two prior felony
1
See TEX. PENAL CODE § 22.02(a)(2); see also TEX. FAM. CODE § 71.004.
enhancements, alleging aggravated sexual assault of a child and burglary of a
habitation. The trial court found the enhancements true and assessed appellant’s
punishment at confinement for 25 years. The trial court also entered affirmative
findings that appellant committed an act of family violence and that he used or
exhibited a deadly weapon, namely, a knife, in the commission of the offense. In
his sole issue, appellant contends that the evidence is legally insufficient to support
his conviction.
We affirm.
Background
In 2017, appellant was living with the complainant, Alice Foster. On the night
of January 3, 2017, the complainant went out with friends to celebrate her birthday.
When she returned home, she and appellant got into an argument. Afterwards,
appellant told the complainant to come to bed. The complainant testified that, when
she refused, appellant “launch[ed]” at her, “pushed [her] down on the bed,” and
“started choking [her].” When the complainant tried to get up, appellant “reached
back behind him and grabbed a kitchen knife off the dresser” and “came at [her].”
Appellant got on top of the complainant and put the knife to her throat, piercing her
skin and drawing blood. She described the knife as a kitchen knife with an eight-
inch blade. The complainant testified that the knife hurt, that she remembered
hearing appellant say the words “kill you,” and that she felt threatened and scared.
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As soon as she freed herself, she grabbed her purse and ran to her car without her
shoes or her cellular telephone. She drove to a nearby motel, Classic Inn, where she
rented a room and called 911.
Houston Police Department (“HPD”) Officers L. Rogers and A. Lockett were
dispatched to the Classic Inn to investigate the assault. There, they met with the
complainant. Rogers testified that he noted a blood stain on a pillow in the room.
The complainant showed Rogers and Lockett a cut and blood on her neck. Lockett
testified that the complainant had a cut parallel to her jawline. The trial court
admitted into evidence photographs of the wound on the complainant’s throat.
Rogers testified that, based on his training and experience, the wound was consistent
with having been caused by a blade or a knife and that, when a person holds a knife
to another’s throat, the knife is being used as a deadly weapon. Lockett testified that
the complainant identified appellant as the person who assaulted her. He noted that
she seemed very scared, that she did not have any shoes with her, and that she had
driven to the motel to get away from appellant. Rogers and Lockett followed the
complainant back to her house to talk with appellant.
At the house, Rogers and Lockett detained appellant in the back seat of their
patrol car. Rogers noted that appellant was not under arrest at the time. The trial
court admitted into evidence at trial an excerpt of a videotape from Rogers’s body
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camera. In the video, appellant described his argument with the complainant and
admitted:
I just lost my cool. . . . She said something and I grabbed her . . . right
across the throat. . . . I grabbed and pulled her to the bed . . . and was
laying across the top of her . . . . I had a knife. I pulled the knife out
and said: You know what? Right about now, I should kill you and me.
Sufficiency of the Evidence
In his sole issue, appellant argues that the evidence is legally insufficient to
support his conviction for aggravated assault of a family member because the
evidence does not show that he “intentionally or knowingly threatened the
complainant with imminent bodily injury by using a deadly weapon.” Appellant
asserts that the “only evidence” of a threat came from the complainant’s own
testimony, the knife was not recovered, and blood was not found at the scene.
Standard of Review and Applicable Legal Principles
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We give deference to the
responsibility of the fact finder to fairly resolve conflicts in testimony, weigh
evidence, and draw reasonable inferences from the facts. Williams, 235 S.W.3d at
750. The jury, as the judge of the facts and credibility of the witnesses, may choose
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to believe or not to believe any witness or any portion of their testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
A person commits an assault if he “intentionally or knowingly threatens
another with imminent bodily injury.” TEX. PENAL CODE § 22.01(a)(2). A person
acts intentionally with respect to the nature of his conduct when it is his conscious
objective or desire to engage in the conduct. Id. § 6.03(a). A person acts knowingly
with respect to the nature of his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the circumstances exist. Id.
§ 6.03(b). Proof of a mental state almost always depends upon circumstantial
evidence. Smith v. State, 56 S.W.3d 739, 745 (Tex. App.—Houston [14th Dist.]
2001, pet. ref’d). A fact finder may infer intent or knowledge from any facts that
tend to prove its existence, including the acts, words, conduct of the accused, and
the method of committing the offense. Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim.
App. 2002). To support a conviction for assault by threat, “there must be some
evidence of a threat being made.” Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim.
App. 2006). For example, “[a]n actor might threaten to stab by holding a knife
overhead and telling the victim, ‘I’ll kill you,’ or by his conduct of waving the knife
in the air or making some other threatening gesture.” Id. at 349 n.40. The threat
must be “imminent,” or present, and not future. Devine v. State, 786 S.W.2d 268,
270 (Tex. Crim. App. 1989).
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The offense of assault is enhanced to aggravated assault if, inter alia, the
person uses or exhibits a deadly weapon during the commission of the assault. TEX.
PENAL CODE § 22.02(a)(2). A “deadly weapon” includes “anything that in the
manner of its use or intended use is capable of causing death or serious bodily
injury.” Id. § 1.07(a)(17)(B). The factfinder may consider such factors as (a) the
intended use of the object, (b) its size and shape, (c) the physical proximity of the
parties, (d) the manner in which the assailant allegedly used the object, (e) the
severity of any wounds inflicted, (f) the accused’s words, (g) any testimony that the
complainant feared death or serious bodily injury, and (h) any testimony as to the
weapon’s potential for causing death or serious bodily injury. Romero v. State, 331
S.W.3d 82, 83 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d).
“Family violence” includes “an act by a member of a family or household
against another member of the family or household . . . that is a threat that
reasonably places the member in fear of imminent physical harm, bodily injury, [or]
assault.” TEX. FAM. CODE § 71.004; see also TEX. CODE CRIM. PROC. art. 42.013.
Analysis
Here, the record shows that appellant, during the heat of an argument,
launched at the complainant, pushed her down on a bed, held a knife to her throat in
a manner that cut her and drew blood, and said, “Right about now, I should kill you.”
The record further shows that the complainant, once freed, fled the house without
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her shoes, drove to a motel, and called the police. The complainant testified that the
knife hurt and that she felt threatened and scared. From this evidence, the jury could
have reasonably concluded that appellant threatened the complainant with imminent
bodily injury using a knife and that he acted with intent. See TEX. PENAL CODE
§§ 6.03(a), 22.01(a)(2); Olivas, 203 S.W.3d at 345, 349 (holding evidence legally
sufficient to support conviction for assault by threat); Garcia v. State, 17 S.W.3d 1,
5 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding evidence that defendant
called complainant outside, threw her to ground, put razor-edged box cutter to her
throat, and threatened to stab her was sufficient to support conviction for aggravated
assault); Rogers v. State, 877 S.W.2d 498, 499–500 (Tex. App.—Fort Worth 1994,
pet. ref’d) (holding evidence legally sufficient to support conviction for aggravated
assault with pocketknife); see also Hart, 89 S.W.3d at 64 (holding fact finder may
infer intent from any facts that tend to prove its existence, including the acts, words,
conduct of accused, and method of committing offense); see, e.g., Deleon v. State,
No. 01-18-00525-CR, 2019 WL 1119210, at *4 (Tex. App.—Houston [1st Dist.]
Mar. 12, 2019, no pet.) (mem. op., not designated for publication) (holding evidence
legally sufficient to support conviction for aggravated assault with knife).
Further, the evidence supports that appellant used the knife as a deadly
weapon. See TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 22.02(a)(2); McCain v.
State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Officer Rogers testified that a
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knife held to the throat could cause death or serious bodily injury. The complainant
and appellant each testified about appellant’s close proximity to the complainant (he
was on top of her); the length of the knife blade (8 inches); the manner in which
appellant used the knife (against her throat), the wound on the complainant’s throat,
appellant’s threat to kill her “[r]ight about now,” and the complainant’s fear. See
Romero, 331 S.W.3d at 83; Garcia, 17 S.W.3d at 4 (holding that evidence
established knife as deadly weapon); Rogers, 877 S.W.2d at 499–500 (same); see,
e.g., Montalvo v. State, No. 01-98-00314-CR, 1999 WL 51789, at *1 (Tex. App.—
Houston [1st Dist.] Jan. 21, 1999, no pet.) (holding evidence that knife was ten
inches long, sharp, capable of causing serious bodily injury or death, caused
complainant pain, and “made him bleed” sufficient to establish knife as deadly
weapon).
The complainant testified that she and appellant were living together at the
time of the offense. See TEX. FAM. CODE § 71.004 (defining “family violence” to
include “an act by a member of a family or household against another member of
the family or household . . . that is a threat that reasonably places the member in fear
of imminent physical harm, bodily injury, [or] assault.”).
Appellant argues that the evidence is insufficient to establish that he
threatened the complainant because the only such evidence came from her own
testimony. He complains that the knife was not found and that there was no evidence
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of blood at the scene or on the complainant’s clothing. The jury is the sole judge of
the facts, the credibility of the witnesses, and the weight to be given the
complainant’s testimony. See Williams, 235 S.W.3d at 750. The State was not
required to introduce the knife into evidence at trial. Banargent v. State, 228 S.W.3d
393, 399 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).
Viewing the evidence in the light most favorable to the verdict, we conclude
that the jury could have reasonably concluded that appellant intentionally threatened
the complainant with imminent bodily injury using a deadly weapon. See TEX.
PENAL CODE § 22.02(a)(2). Accordingly, we hold that the evidence is legally
sufficient to support appellant’s conviction for aggravated assault of a family
member. See id.; see also TEX. FAM. CODE § 71.004.
We overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Goodman.
Do not publish. TEX. R. APP. P. 47.2(b).
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