No. 05-03-01415-CR.
Opinion Filed March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-81350-03. Affirmed.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
Opinion By Justice FITZGERALD.
A jury found Derrick Wayne Tyler guilty of aggravated assault with a deadly weapon. The trial court assessed punishment at six years confinement. In one issue, appellant claims the evidence is factually insufficient to support the conviction. We affirm the trial court's judgment.
Facts
Karen Elsafty testified that she was visiting a friend on April 7, 2003. The two had returned to the friend's apartment complex from a grocery store between 6:45 p.m. and 7:00 p.m. on that date. While Elsafty was helping the friend unload his groceries, she saw a woman in the parking lot with her arms in the air and screaming, "somebody call the police." The woman appeared frantic and distressed. Elsafty went into her friend's apartment and called 911. She described the incident to the dispatcher and remained on the telephone until the police arrived. Although she could not hear what was being said, Elsafty said the woman's body language led Elsafty to believe the woman was hurt. The woman was "dangling" her right hand as if it hurt. Elsafty testified that she had seen a man near the woman, but he had walked away. The man and woman were separated by the length of a car, with the man at the front of the car and the woman at the back. Elsafty did not see a confrontation between the man and woman and she did not see a knife. Donna Harrison, the complainant, testified that she and appellant had lived together off and on for more than eight years. They were living together on April 7, 2003. Harrison was upset because appellant had been away from home three to five days. When he returned on April 7, 2003, the two began to argue about his absence. After about five minutes, Harrison tried to leave the apartment. Appellant, however, would not allow Harrison to leave. He slapped her face, then he held an exacto knife "millimeters" from her eye and threatened to "cut out [her] eyeball with the exacto knife" if she tried to leave. Harrison described the exacto knife as a razor sharp blade, almost rectangular in shape, that fits into a groove on the handle. The blade was not new, but it was still sharp. The length of the entire exacto knife was about five inches. Harrison testified she was very afraid for her life. She told herself she was not going to be "abused" any longer and began struggling with appellant. At some point during the struggle, the two fell to the floor. Appellant was not very mobile because he wore a leg brace. Harrison bit appellant and testified he may have received some scratches during the struggle. Harrison was able to get away from appellant and out of the apartment. She went down the stairs to the parking lot. She saw that neighbors were around, and asked someone to call 911. Harrison testified that appellant followed her down the stairs to the parking lot, where he tried to take Harrison's car keys from her. The two struggled over the keys. However, after Harrison asked neighbors to call the police, appellant went back upstairs. The keys disappeared, but Harrison found them two days later in some bushes by the stairway. When Harrison got downstairs, she saw blood on her, and testified she had cuts on her right thumb and forearm that were consistent with razor cuts. There were no broken objects on the floor in the apartment that could have caused the cuts, and Harrison did not believe the keys could have caused the cuts. Harrison realized the cuts came from the exacto knife because she saw blood on the stairway coming down from the apartment. After the police and paramedics arrived, they took Harrison to the hospital, both because of the injuries and because of concerns about Harrison's heart. Harrison has a scar on her forearm from that wound. Harrison testified she did voluntarily sign an affidavit of non-prosecution prepared by appellant's attorney. However, Harrison signed the document because she wanted to put the incident behind her, not because the assault did not happen. Plano police officers Renea Glasser and Mark Jones responded to a disturbance call at about 6:45 p.m. on April 7, 2003. The fire department had already arrived, and Harrison was in the back of an ambulance. Glasser spoke with Harrison about the incident. Glasser testified that Harrison was calm, but became upset and cried when she talked about the incident. Glasser saw cuts on Harrison's thumb and arm that were one to one-and-a-half inches in length. The wounds appeared to have been made by a sharp object like an exacto knife. The wounds did not appear consistent with cuts received through a rough struggle on the floor. Glasser also testified that the wounds appeared to be defensive in nature, like Harrison had been trying to block an object. Glasser further testified an exacto knife can be a deadly weapon — that it is possible to kill someone with such a knife. After speaking with Harrison, Glasser determined she would arrest appellant. Glasser saw appellant in the apartment; however, appellant would not open the door. After about thirty minutes, the officers gained entry to the apartment. Appellant was in the apartment alone, lying on the bed. The officers searched the area immediately around appellant, but did not find an exacto knife. Glasser testified there would have been time to hide a weapon. Plano police sergeant Mary Beth Jones testified she responded to the scene after Glasser and Mark Jones requested a supervisor due to the nature of the call. Sgt. Jones testified there was blood on the stairway wall. The officers did not do a full search of the apartment after appellant was arrested. They asked Harrison if she knew where the exacto knife was, and Harrison said no. Sgt. Jones did see an exacto knife in a pencil cup that was sitting on a kitchen cart. She said that because she saw no blood on it, she did not collect that knife. It was not obvious it was the weapon involved in the assault. Sergeant Jones testified that it was possible cuts could have been made without leaving blood on the knife and, in hindsight, she should have collected the exacto knife from the pencil cup. Appellant did not testify or present any defense witnesses. Applicable Law
In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The jury is the exclusive judge of the facts provided and of the weight to be given to the testimony. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Edwards v. State, 106 S.W.3d 833, 839 (Tex. App.-Dallas 2003, pet. ref'd). While the reviewing court has some authority to disregard evidence that supports the verdict, it may not substitute its own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim. App. 2002), cert. denied, 123 S.Ct. 1901 (2003); Scott v. State, 934 S.W.2d 396, 399 (Tex. App.-Dallas 1996, no pet.). A person commits the offense of aggravated assault with a deadly weapon if he intentionally, knowingly, or recklessly causes bodily injury to another, and uses or exhibits a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2004). A deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004); McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). It is not necessary that the actor actually intend death or serious bodily injury; "an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury." McCain, 22 S.W.3d at 503. A knife is not a deadly weapon per se, but can be found to be a deadly weapon based on the nature of its use or intended use. McCain, 22 S.W.3d at 502-03; Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). Whether a particular knife is a deadly weapon depends upon the evidence. Thomas, 821 S.W.2d at 620. Factors to consider in determining whether a knife is a deadly weapon in its use or intended use include: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony about the knife's life-threatening capabilities. Thomas, 821 S.W.2d at 619; Garcia, 17 S.W.3d at 4. Analysis
Appellant contends the evidence regarding the conviction for aggravated assault is so weak as to be clearly wrong or manifestly unjust and that the jury's finding of a deadly weapon is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Appellant argues Glasser's testimony that the knife was capable of causing death or serious bodily injury was mere speculation. Appellant further asserts the complainant's wounds were minor in nature, consistent with accidental cuts sustained during a struggle. The State responds that the evidence is factually sufficient to support the conviction. We agree with the State. Although he sets out the standard of review for factual sufficiency, appellant reviewed the evidence in the light most favorable to the defense. However, in reviewing the factual sufficiency of the evidence, we review all of the evidence in a neutral light, not favoring either party. See Johnson, 23 S.W.3d at 7. There was evidence in the record that the exacto knife had a razor sharp blade. The blade was not new, but it was still sharp. There was no evidence as to the length of the blade, but the total length of the knife was five inches. Harrison testified appellant used the knife in a threatening manner trying to prevent her from leaving the apartment. He held the knife close to her eye and threatened to cut out her eyeball if she left. Harrison then struggled with appellant and received cuts to her thumb and forearm during the struggle. Harrison did not realize she had been cut until she had gotten out of the apartment and down to the parking lot. The cuts required medical attention, and Harrison's forearm bears a scar from that wound. Glasser testified the wounds appeared to be defensive in nature, as if Harrison was trying to block an object. Harrison further testified an exacto knife is capable of causing death. No weapon was recovered. Having reviewed the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support the jury's finding that the manner of the knife's use or intended use was capable of causing death or serious bodily injury. See McCain, 22 S.W.3d at 503; Thomas, 821 S.W.2d at 518; Charleston v. State, 33 S.W.3d 96, 100 (Tex. App.-Texarkana 2000, pet. ref'd); Garcia, 17 S.W.3d at 5. We further conclude a reasonable fact finder could find appellant knowingly, intentionally, or recklessly caused bodily injury to Harrison with the deadly weapon. Therefore, we conclude the evidence is factually sufficient to support the conviction for aggravated assault with a deadly weapon. We overrule appellant's sole issue. We affirm the trial court's judgment.