No. 14-09-00015-CR
Opinion filed December 31, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas, Trial Court Cause No. 1161578.
Panel consists of Justices FROST, BOYCE, and SULLIVAN.
KEM THOMPSON FROST, Justice.
Appellant Jesse Charles Aught appeals his conviction for aggravated assault with a deadly weapon, challenging the legal and factual sufficiency of the evidence to show he used a deadly weapon. Appellant also challenges the legal sufficiency of the evidence in rejecting his claim of self-defense. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A police officer responded to a dispatch call involving a man who had been cut by another person. At the scene, the officer observed the complainant receiving treatment from paramedics. The responding officer learned that appellant had cut the complainant with a knife in an altercation that occurred under a downtown bridge. Although appellant was not on the scene at the time, the officer located and arrested appellant later that evening. The officer did not recover any knives from the scene or from appellant. Appellant was charged by indictment with the offense of aggravated assault, to which he pleaded "not guilty." Appellant waived a trial by jury and chose the trial court as the finder of fact. At trial, the complainant testified that at the time of the incident, he was homeless and lived under a bridge in downtown Houston. According to the complainant, he knew appellant and the two had a previous misunderstanding over cigarettes. On the night in question, the complainant saw appellant under another nearby bridge. The complainant saw appellant use his hands to motion for the complainant to visit and indicated that the complainant's radio was too loud. The complainant walked over to meet appellant. According to the complainant, without saying anything more, appellant "stuck" him in his stomach with a rusty knife. The complainant testified the knife was approximately fifteen inches long and used his hands to show the length of the knife. On cross-examination, however, the complainant admitted that he had not seen the knife. The complainant testified that a friend notified authorities, and he received treatment for the injuries at a hospital. The complainant's medical records, which were admitted into evidence at trial, reflect that the complainant suffered two lacerations of unknown depth. As reflected in the records, the complainant told medical responders that he was stabbed with a six-inch knife. Appellant testified that he knew the complainant from a previous dispute over money for a sandwich. According to appellant, the complainant was hysterical. Appellant claimed that the area around the bridge caused him to be afraid of people. Appellant testified that the complainant and two other men acted aggressively toward him on the morning of the incident when the complainant asked for help lighting his cigarette; in this instance, appellant claimed to have scared the complainant away by using profanity. Appellant testified that later that evening, under the bridge, he encountered the complainant. Appellant testified that he held a small pocketknife with a blade that measured an inch or an inch and one half. Appellant testified that he was scared of the complainant because he feared the complainant would "con" him out of money. He testified that the complainant moved "casually" toward him. Appellant claimed to have made a "sticking" motion with the open knife. Appellant testified that after the complainant left the scene, appellant hoped he had not killed the complainant. The trial court found appellant guilty as charged and sentenced him to five years' confinement. Appellant now challenges the legal and factual sufficiency of his evidence to support his conviction. II. STANDARDS OF REVIEW
In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the fact finder's resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes, 991 S.W.2d at 271. In conducting a factual sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). III. ANALYSIS
A. Is the evidence legally and factually sufficient to support a finding that appellant used a deadly weapon in the commission of the assault?
In his second and third issues, appellant asserts that the evidence is legally and factually insufficient to show that appellant used a deadly weapon in the commission of the offense of aggravated assault. A person commits the offense of assault if that person intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon Supp. 2009). The offense becomes aggravated assault if the person committing the assault uses a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon Supp. 2009). A deadly weapon is defined as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury" or "anything that in the manner of its use of intended use is capable of causing death or serious bodily injury." TEX. PENAL CODE ANN. § 1.07(a)(17) (Vernon Supp. 2009). A knife is not a deadly weapon per se or by design. See Thomas v. State, 821 S.W.2d 616, 619, 620 (Tex. Crim. App. 1991). A knife becomes a deadly weapon if its use or intended use renders it capable of causing death or serious bodily injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Whether a particular knife is a deadly weapon by design, a deadly weapon by usage, or not a deadly weapon at all depends on the evidence of each individual case. Thomas, 821 S.W.2d at 620. We consider whether there is sufficient evidence to show that the actor used the knife or intended to use the knife in such a way that it was "capable of causing death or serious bodily injury." Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978). Factors considered in determining whether a knife is a deadly weapon in its use or intended use include (1) the dimensions of the knife, (2) the manner of its use or intended use, (3) the nature or existence of inflicted wounds, and (4) the testimony of the knife's life-threatening capabilities, if used. Thomas, 821 S.W.2d at 619. Other surrounding circumstances as to the knife's usage are relevant, such as any threats made by the accused, the distance between the accused and the complainant, and any witness's description of the knife. Wade v. State, 951 S.W.2d 886, 892 (Tex. App.-Waco 1997, pet. ref'd). There is no requirement that the complainant sustain any injury in order to find that the knife was a deadly weapon. Ford v. State, 828 S.W.2d 525, 527 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd). In this case, responding officers did not recover a knife from the scene, and the record contains varying descriptions about the size of the knife appellant used. The complainant's medical records suggest that the complainant told emergency responders that the knife was six inches long. At trial, the complainant motioned with his hands and testified that the rusty knife was about fifteen inches long; however, the complainant also acknowledged on cross-examination that he had not seen the knife. Appellant admitted possessing a knife that he described as a small pocketknife with a one to one-and-one-half inch blade. The trial judge was the sole trier of fact and, as such, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). In this capacity, the trial judge is authorized to accept or reject any or all of the witnesses' testimony. Id. When faced with conflicting evidence, we presume that the trier of fact resolved conflicts in favor of the prevailing party. See Turro, 867 S.W.2d at 47. The responding officer testified that a knife is considered a deadly weapon because it can cause bodily injury or death. The officer confirmed at trial that a knife that is stabbed in a person's stomach can cause injury or death. The complainant testified that the men were about one foot apart when the incident occurred. The complainant testified that appellant "stuck" him in the stomach; similarly, appellant described his actions as a "sticking motion." The complainant testified that the knife left a hole in his shirt and that he was bleeding. The complainant testified that he "felt death" after he was stabbed, and appellant testified that following the incident, he expressed hope that he had not killed the complainant. The medical records reflect that the complainant was stabbed twice. The complainant's testimony as to the manner in which appellant used the knife and the complainant's medical records describing his wounds support a finding that the knife was a deadly weapon. See Thomas, 821 S.W.2d at 619; see also Wade, 951 S.W.2d at 892 (providing that surrounding circumstances, including distance between the accused and the complainant, verbal threats, and any witness description of the knife are relevant to a deadly-weapon finding). Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have concluded the knife appellant used to stab the complainant was a deadly weapon. See McDuff, 939 S.W.2d at 614; Ford, 828 S.W.2d at 526-27 (holding that evidence was sufficient to establish that knife with blade that was two-and-one-half inches long was a deadly weapon). Moreover, the record shows that the finding of a deadly weapon is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Accordingly, we conclude the evidence is legally and factually sufficient to sustain appellant's conviction. We overrule appellant's second and third issues. B. Is the evidence legally sufficient to reject appellant's claim of self-defense?
In his first issue, appellant challenges the legal sufficiency of the evidence to support his conviction for aggravated assault, claiming that the State did not disprove appellant's affirmative defense of self-defense. According to appellant, he acted in self-defense because he feared the complainant would steal his belongings or hurt him. A person is justified in using force against another person when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use of or attempted use of unlawful force. See TEX. PENAL CODE ANN. § 9.31(a) (Vernon Supp. 2009). A person has the right to defend against a reasonable appearance and apprehension of apparent danger to the same extent as actual danger. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). An accused bears the burden of proving his claim of self-defense by a preponderance of the evidence by producing some evidence in support of that claim. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); see TEX. PENAL CODE ANN. § 2.04(d) (Vernon 2003). Once the accused produces such evidence, the burden of persuasion falls upon the State to disprove evidence of the defense. Id. at 913-14. The State's burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. at 913. The issue of self-defense is a fact issue for the fact finder and a verdict of "guilty" is an implicit finding rejecting an accused's self-defense theory. Id. at 913-14. After viewing all of the evidence in the light most favorable to the prosecution, we consider whether any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Id. at 914. The record reflects that the complainant testified that appellant stabbed him with a knife without any further words, threat, or provocation. The officer testified that a knife used to stab a person in the stomach, as in this case, can be a deadly weapon. The complainant's medical records show that he sustained two lacerations of unknown depth. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact reasonably could have concluded beyond a reasonable doubt that appellant committed aggravated assault against the complainant. See Yarborough v. State, 178 S.W.3d 895, 903 (Tex. App.-Texarkana 2005, pet. ref'd) (concluding evidence was legally and factually sufficient to support determination that an accused committed aggravated assault). Contrary to appellant's contention, the evidence does not establish that appellant was reasonable in believing that the use of force was necessary to protect himself from the complainant. See id. at 904. Appellant presented no evidence that the complainant threatened him with any amount of force or provoked him at the time of the incident. See id. Appellant testified at trial that the complainant walked toward him in a casual manner and did not "square off." Although appellant testified that he feared the complainant would hurt him or steal his belongings, an accused's testimony alone will not conclusively prove self-defense as a matter of law. See Denman v. State, 193 S.W.3d 129, 133 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). Appellant characterizes the complainant's testimony as confusing and disjointed and asks this court to contrast the complainant's testimony with appellant's testimony that he feared for his safety and property. It is the fact finder's role to evaluate the defense evidence and accept or reject it. See Saxton, 804 S.W.2d at 914. By finding appellant guilty, the trial judge implicitly rejected appellant's self-defense theory and necessarily chose not to believe appellant's testimony. See id. Under the applicable standard of review and based on the evidence adduced at trial, a rational trier of fact could conclude beyond a reasonable doubt that appellant committed the offense of aggravated assault and also could have found against appellant on the self-defense issue. See id.; Yarborough, 178 S.W.3d at 904. Accordingly, the evidence is legally sufficient to support appellant's conviction for aggravated assault. See Yarborough, 178 S.W.3d at 904. Therefore, we overrule appellant's first issue. Having overruled appellant's three issues, we affirm the trial court's judgment.