No. 05-08-01683-CR
Opinion issued November 1, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F08-01154-H.
Before Justices MORRIS, FitzGERALD, and FRANCIS.
Opinion By Justice MORRIS.
The trial court convicted appellant of escape with a deadly weapon. We concluded on original submission that the trial court had violated the Interstate Agreement on Detainers act when it tried appellant. The Texas Court of Criminal Appeals, however, determined that appellant had not met his burden of proving a violation of the IADA and remanded the cause to us to address appellant's remaining issues. We now affirm the trial court's judgment.
Factual Background
While he was in jail, appellant appeared to have a seizure and was transported to Parkland Hospital in Dallas for treatment and observation. He was shackled to the hospital bed in his room, and his leg shackles were moved to his ankles only when he used the restroom. Appellant used the restroom several times, and a private security guard assigned to him had to lock and unlock his shackles each time. Upon appellant's last return from the restroom, he was lying down as the guard unlocked the shackles from one of his ankles to reattach it to the bed. Appellant popped up in the bed, grabbed the guard's right wrist while holding a weapon in his right hand, and threatened to kill her if she did not unlock the shackle around his other ankle. The guard explained to appellant that she could not unlock the shackles with her left hand, and after failing to do so himself with the hand that was holding the weapon, he insisted that she do it. At one point, a nurse came into the room to check on appellant, but the guard did not indicate that anything was wrong because appellant had threatened her. After appellant was out of the shackles he asked the guard for her clothing, saying he was not going to rape her but needed her clothing for his escape. At that point, the guard claimed, she tackled appellant and cried out but he ran down the hall of the hospital and got in one of the elevators before he could be apprehended. The guard described the weapon appellant used as metal, thin, pointy, and sharp. She could not identify how the weapon was made or what it was, but she suspected it was "manmade." She was scared that appellant was going to cut her throat with it and kill her. She said that appellant told her he was "fixing to do life" and if she did not let him go he was going to kill her. Much of appellant's escape was recorded on a hospital camera located above the bed. On the recording, appellant can be seen and heard forcing the guard to let him out of his shackles. Much of what he says cannot be understood because he is speaking so quietly, but he can be heard telling the guard that she is doing a good job and urging her to get the shackles off his ankle. A pointed weapon can also be seen in appellant's right hand, but it is difficult to see it in any detail. The weapon remains in appellant's right hand from the time he pulls it out from under his bedding while the guard is unlocking one of his shackles to the time he is off the camera. At one point, he hides it from view when a nurse comes into the room. After appellant and the guard are out of the camera's view, there is a voice crying out for security and a thumping noise. The guard had initially testified that appellant had held the weapon at her neck, but she acknowledged after seeing the video that he had not actually done so. Discussion
In two of his remaining three issues, appellant challenges both the legal and factual sufficiency of the evidence showing he used a deadly weapon during the escape. We are directed, however, to review the evidence only under the legal-sufficiency standard of Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). In his challenge to the evidence, appellant contends the State failed to prove beyond a reasonable doubt that the weapon used was manifestly designed, made, or adapted for the purpose of inflicting death or seriously bodily injury as required by penal code section 1.07(a)(17)(A) or that the weapon was deadly by virtue of its use or intended use as required by penal code section 1.07(a)(17)(B). The only evidence before the jury relating to a weapon was the video recording of appellant's escape and the guard's testimony. Although her testimony varied somewhat, the guard was unequivocal in her assertions that appellant had a sharp metal object in his hand when he threatened to kill her and she feared for her life. The recording shows a small pointed item in appellant's hand, although it is difficult to determine from the recording what the item actually is. In making a determination about whether an object is a deadly weapon, we may consider the physical proximity between the complainant and the object, threats or words used by the defendant, the size and shape of the object, the object's ability to inflict death or serious injury, and the manner in which the defendant used the object. See In re S.B., 117 S.W.3d 443, 446 (Tex. App.-Fort Worth 2003, no pet.). Here, it is clear from the video that when appellant popped up in the bed to initiate his escape, he was close enough to harm the guard with a weapon. He had her right wrist in his hand, and he was close enough to talk to her in a low voice. He threatened to kill the guard and mentioned that he was doing "life." The guard described the weapon as sharp, metal, and pointy. The recording does not refute this testimony even if it does not enhance it. The guard also believed the weapon could kill her, and it is clear from the recording that the appellant was relying on that belief to accomplish his escape. He held the weapon the entire time the guard took to free him and did not move it from his right hand while his shackles were being unlocked. After viewing all the evidence in the light most favorable to the verdict, we conclude the evidence showing appellant used a deadly weapon during the offense is legally sufficient. We resolve appellant's second and third issues against him. In his fourth issue, appellant complains the trial court erred in denying his request for a jury instruction on the lesser-included offense of escape without the enhancing element of a deadly weapon. The State agreed to appellant's request for the lesser-included-offense instruction but the trial court refused to give the instruction. Appellant now argues the evidence in his case raises a fact issue about whether the object he used was a deadly weapon. A defendant is entitled to a jury instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser-included-offense instruction. See Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly pertinent to a lesser included offense for the jury to consider before an instruction on a lesser included offense is warranted. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994). As discussed above, the video recording of appellant initiating the escape shows he was holding some type of weapon in his hand as he gripped the guard's wrist and talked to her in hushed tones. The guard claimed the object was a sharp metal weapon and claimed appellant threatened to kill her. The recording does not refute the guard's claim. We conclude the trial court did not err in refusing to instruct the jury on the lesser included offense of escape without the use of a deadly weapon. We resolve appellant's fourth issue against him. Appellant's four issues have now been decided against him either by this Court or the court of criminal appeals. Accordingly, we affirm the trial court's judgment.