HAROLD LOWDINS v. THE STATE OF TEXAS (2025)

OPINION

Affirmed and Opinion filed October 21, 2025.

Appellant Harold Lowdins appeals his conviction for aggravated sexual assault. In five issues, he argues that the evidence is legally insufficient to support the conviction, that the trial court's jury-charge errors regarding a deadly weapon allegation harmed him egregiously, and that he received ineffective assistance of counsel. We hold that the evidence is legally sufficient, that the charge did not contain errors or did not cause egregious harm, and that the record does not support the ineffective-assistance claim. We affirm the trial court's judgment.

Background

In downtown Houston one night, appellant approached the complainant and asked her to walk with him along a trail under a freeway overpass. Appellant attacked the complainant and “pulled a knife on [her].” The knife, which was a folding pocket knife of a type similar to a box-cutter, “already had the blade out.” Appellant would not allow the complainant to leave, and she feared for her life. Appellant made the complainant bathe with water before forcing her to perform various sexual acts. Appellant penetrated the complainant's mouth and vagina with his penis. The complainant testified that the assault occurred “over and over all night long until he said he had to go to work at 4 a.m.” The complainant complied “because [she] was in fear for [her] life.” After the complainant promised to come back the following night, she managed to escape.

Emotionally distraught, the complainant “flagged down” Harris County Constable's Office Deputy Donald McCullough, who was on patrol. Deputy McCullough contacted emergency services personnel, who took the complainant to a hospital.

Stephanie De Jongh, a forensic nurse examiner, examined the complainant, who had bruising on her arms and her left breast and a contusion on her head. The complainant provided the following narrative to De Jongh:

I was walking to the store. I bought tea and chips. He started talking to me. Then he took me under the bridge. He grabbed me, grabbed my head and hit the concrete pillar. I felt he had a knife and I begged him not stab me. I was saying, please, please, please don't kill me. Please don't kill me․

I told him, I do whatever he wanted me to do if he wouldn't kill me. He knows what he is doing. He made me wash. He has a 5-gallon bucket of water there and made me wash․

I had to suck his dick. He fucked me. I sucked his dick, and he fucked me again.

All I know is Harold. He lives at the bridge at Bridge 76․

He had a knife, I told you. I was scared he was going to kill me.

De Jongh took numerous forensic swabs from the complainant's body and underwear. Several months later, during an unrelated investigation, appellant voluntarily provided two buccal swabs. Appellant's DNA matched the contributor of the DNA collected from the complainant's body and underwear during her sexual assault exam.

Law enforcement arrested appellant, who had a folding pocket knife in his pants pocket at the time of arrest. At trial, the complainant identified a photo of the knife as an accurate depiction of the knife appellant used during the assault.

A grand jury charged appellant with committing the felony offense of aggravated sexual assault. The jury convicted appellant as charged in the indictment. Appellant did not file a motion for new trial but timely appealed.

Analysis

Appellant presents five issues for review. In his first and second issues, he argues that the evidence is legally insufficient to sustain the conviction, and the trial court erred in denying his motion for directed verdict, because there is no evidence allowing a rational fact finder to believe that appellant used or exhibited a deadly weapon. In his third issue, appellant argues that the trial court erred in failing to include a definition of “deadly weapon” in the jury charge and this error caused egregious harm. In his fourth issue, appellant argues that certain language in the charge impermissibly constituted a comment on the evidence. Finally, Appellant argues that he was deprived of constitutionally effective assistance of counsel.

A. Evidentiary Sufficiency Complaint

We address appellant's first two issues together because they raise the same legal question. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (motion for directed verdict is an attack on the sufficiency of the evidence to support a conviction and its denial is reviewed under the same standard used in a sufficiency review). In these issues, appellant challenges the legal sufficiency of the evidence to support the jury's finding that he used or exhibited a deadly weapon during the offense.

When assessing the sufficiency of the evidence to support a criminal conviction, reviewing courts consider the evidence in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found that the State has proven the essential elements of the crime beyond a reasonable doubt. See Baltimore v. State, 689 S.W.3d 331, 341 (Tex. Crim. App. 2024). This standard gives full responsibility to the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Reviewing courts consider the cumulative force of all evidence to determine whether the evidence was sufficient to establish each element of the offense. Id.

When considering a claim of evidentiary sufficiency, reviewing courts may not substitute their judgment for that of the fact finder by re-evaluating the weight and credibility of the evidence. Id. at 342. A jury is permitted to draw reasonable inferences from the evidence presented at trial, so long as each inference is supported by the evidence produced at trial. Id. Juries may use common sense, common knowledge, personal experience, and observations from life when drawing those inferences. Id. Juries are not, however, permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Id.

As relevant here, a person commits the offense of aggravated sexual assault:

(1) if the person:

(A) intentionally or knowingly:

(i) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; [or]

(ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; [and] ․

(2) if:

(A) the person: ․

(iv) uses or exhibits a deadly weapon in the course of the same criminal episode.

Tex. Penal Code § 22.021.

“A knife is not a deadly weapon per se, but the State may ‘prove a particular knife to be a deadly weapon by showing its size, shape, and sharpness, the manner of its use or intended use, and its capacity to produce death or serious bodily injury.’ ” Clark v. State, 444 S.W.3d 671, 678 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (quoting Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983)). Expert testimony is not required. Id. A jury may consider all of the facts of the case in determining the deadliness of a weapon. Id.

Here, the arresting officer testified that the knife found on appellant and allegedly used during the assault was “a black-and-silver, folding pocket knife, brand Husky.” A picture of the knife was introduced and published to the jury. It is of a type commonly known as a “box-cutter.” Further, the complainant testified that appellant held the knife, blade out, “on [her] at all times.” She told De Jongh that she had been afraid that appellant was going to stab and kill her. The complainant testified that she feared for her life and only complied with his demands because of the knife.

Accordingly, we conclude the evidence is sufficient to support the finding that appellant used or exhibited a deadly weapon in the assault. A reasonable juror could have found or inferred from the evidence that appellant used the knife in such a manner as to be capable of causing death or serious bodily injury. Tex. Penal Code § 1.07(a)(17)); see McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (“[O]bjects used to threaten deadly force are in fact deadly weapons.”); Sauls v. State, No. 14-17-00239-CR, 2019 WL 2535995, at *4 (Tex. App.—Houston [14th Dist.] June 20, 2019, no pet.) (mem. op., not designated for publication) (“Evidence is sufficient if a knife is displayed in a manner conveying an express or implied threat that serious bodily injury or death will be inflicted if the desire of the person displaying the knife is not satisfied.”) (citing Billey v. State, 895 S.W.2d 417, 422 (Tex. App.—Amarillo 1995, pet. ref'd)); see also Poree v. State, No. 03-16-00561-CR, 2017 WL 5983922, at *4 (Tex. App.—Austin Nov. 28, 2017, no pet.) (mem. op., not designated for publication) (upholding deadly-weapon finding because jury could have rationally found that appellant used box-cutter knife in such a way, or intended to use the knife in such a way, that it was capable of causing death or serious bodily injury); Hernandez v. State, No. 14-07-01017-CR, 2009 WL 909595, at *4 (Tex. App.—Houston [14th Dist.] Apr. 7, 2009, no pet.) (mem. op., not designated for publication) (same).

We overrule appellant's first and second issues.

B. Jury Charge Complaint

In his third issue, appellant argues that the trial court erred in failing to include in the charge the statutory definition of “deadly weapon.”

There are two standards of review for jury-charge-error claims. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). If a defendant timely objects to alleged jury-charge error, the record need only show “some harm” to obtain relief. Id. If, as here, there was not a timely objection, the record must show “egregious harm.” Id. Harm is assessed “in light of the entire jury charge, the state of the evidence, including the contested issues and weight of [the] probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id. An erroneous jury charge is egregiously harmful if it affects the very basis of the case, deprives the accused of a valuable right, or vitally affects a defensive theory. Id. A finding of egregious harm must be based on “actual harm rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Egregious harm is a difficult standard to meet, and the analysis is a fact-specific one. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Neither party bears the burden to show harm. Marshall v. State, 479 S.W.3d 840, 842-43 (Tex. Crim. App. 2016).

The trial court has a statutory obligation to instruct the jury on “the law applicable to the case.” See Tex. Code Crim. Proc. art. 36.14. That obligation “requires that each statutory definition that affects the meaning of an element of the offense must be communicated to the jury.” Villareal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009). The Legislature defined “deadly weapon” to mean:

(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.

Tex. Penal Code § 1.07(a)(17)). The court, however, failed to include this definition in the jury charge. The State concedes that the court erred but argues that the error did not cause egregious harm. We agree with the State.

The statutory definition of “deadly weapon” is neither complex nor unusual, and it closely resembles and imparts the common meaning of the phrase. See Villanueva v. State, 194 S.W.3d 146, 154 (Tex. App.—Houston [1st Dist.] 2006) (discussing definition of “deadly weapon”), aff'd in part, rev'd in part on other grounds, 227 S.W.3d 744 (Tex. Crim. App. 2007). When the term “deadly weapon” is viewed in the factual context of the charge, its statutory meaning is apparent. For instance, the application paragraph states that appellant compelled the complainant “to submit or participate by threatening to use force or violence against [the complainant], and [the complainant] believed that the defendant had the present ability to execute the threat, and in the course of the same criminal episode, the defendant used or exhibited a deadly weapon, namely, a knife. ․” Therefore, the jury found that appellant threatened to use force or violence against the complainant and the complainant believed, because of the knife, that the defendant could use force or violence. The relevant charge language substantially tracks the statutory definition of “deadly weapon.” Examining the court's charge as a whole, we conclude that the context in which the term “deadly weapon” was used, and its relation to other words and terms used in the charge, adequately conveyed to the jury the meaning of the term “deadly weapon” under the facts in this case. See id.

Further, a review of the entire record reveals that the characterization of the knife as a deadly weapon was not a contested issue at trial. Appellant has not shown that the jury was confused about the definition or that he would have benefitted from the definition's inclusion in the charge. See, e.g., Mosley v. State, 686 S.W.2d 180, 182 (Tex. Crim. App. 1985) (finding that jury was not misled by omission of definition of “bodily injury” because no issue was presented by evidence or arguments to suggest either that bodily injury was in dispute or that there was confusion about what was meant by term). A picture of the knife was before the jurors, who viewed it and could use their common sense to determine whether it was capable of being used as a deadly weapon. See Baltimore, 689 S.W.3d at 342 (jurors can use common sense when drawing inferences).

We conclude that appellant did not suffer egregious harm from the omission of the definition of “deadly weapon” in the jury charge. See Villanueva, 194 S.W.3d at 158 (appellant did not show egregious harm from omission of deadly weapon definition). We overrule appellant's third issue.

C. Comment on the Weight of the Evidence Complaint

In his fourth issue, appellant argues that the trial court impermissibly submitted a charge that commented on the weight of the evidence. This complaint also focuses on the deadly weapon issue. According to appellant, the charge “assumed the truth” that the knife was a deadly weapon.

In pertinent part, the charge provided:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of December, 2021, in Harris County, Texas, the defendant, Harold Lowdins, did then and there unlawfully, intentionally or knowingly cause the sexual organ of [the complainant] to contact the sexual organ of Harold Lowdins, without, the consent of [the complainant], namely the defendant compelled [the complainant] to submit or participate by threatening to use force or violence against [the complainant], and [the complainant] believed that the defendant had the present ability to execute the threat, and in the course of the same criminal episode, the defendant used or exhibited a deadly weapon, namely, a knife, then you will find the defendant guilty of aggravated sexual assault, as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict “Not Guilty.” (Emphasis added.)

In an analogous case, the defendant argued that the charge erroneously assumed the truth that a pellet pistol was a deadly weapon:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of July, 1986, in Harris County, Texas, the defendant, Leonard Nathaniel Francis, acting alone or with another person as a party to the offense, as that term is hereinbefore defined, did then and there unlawfully while in the course of committing theft of property owned by [the complainant], and with intent to obtain or maintain control of the property, intentionally or knowingly threaten or place [the complainant] in fear of imminent bodily injury or death, by using or exhibiting a deadly weapon, namely, a pellet pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict “Not Guilty.”

Francis v. State, 746 S.W.2d 276, 277-78 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). This court did not agree that the charge assumed that the pistol was a deadly weapon. Rather, the charge, reasonably construed, required the jury to believe each of the elements beyond a reasonable doubt before it could convict. Id. at 278.

More recently, we explained that identifying a particular object in apposition to “a deadly weapon” does not amount to an improper comment on the weight of the evidence. See Ostrander v. State, No. 14-20-00286-CR, 2021 WL 2470390, at *5 (Tex. App.—Houston [14th Dist.] June 17, 2021, pet. ref'd) (mem. op., not designated for publication). By stating that “the defendant, during the alleged assault, used or exhibited a razor blade attached to a handle, a deadly weapon,” the court did not declare or assume that the razor blade was a deadly weapon. Id. Instead, the prosecution had the burden to prove beyond a reasonable doubt that the defendant used a deadly weapon. Id.

The same is true here. The charge permitted the jury to convict only if it believed beyond a reasonable doubt that each of the elements, including the use or exhibition of a deadly weapon, was proven by the evidence. See id.; Francis, 746 S.W.2d at 278.

We overrule appellant's fourth issue.

D. Ineffective Assistance of Counsel Complaint

In his last issue, appellant argues that his trial counsel provided constitutionally ineffective assistance by failing to object to the omission of the statutory definition of “deadly weapon” from the charge.

To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different—deficient performance resulting in prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). An ineffective-assistance claim must be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Trial counsel “should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593.

Appellant did not file a motion for new trial raising ineffective assistance of counsel; therefore, we have no record evidence of counsel's reasoning behind his actions or inactions. Because counsel's reasons for his conduct do not otherwise appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we defer to counsel's decisions. See, e.g., Hernandez v. State, 198 S.W.3d 257, 270-71 (Tex. App.—San Antonio 2006, pet. ref'd) (“Absent a record to indicate defense counsel's strategy and tactics, we may not speculate as to why counsel failed to ․ request a definition [ ] in the charge.”).

Further, we have also already concluded that the omission of a deadly weapon instruction in the charge did not cause egregious harm to appellant. If a jury charge error does not amount to egregious harm, a defendant cannot show that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. See Goffney v. State, No. 01-19-00282-CR, 2020 WL 7349496, at *11 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, pet. ref'd) (mem. op., not designated for publication) (citing Tottenham v. State, 285 S.W.3d 19, 34 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).

For these reasons, we overrule appellant's last issue.

Conclusion

Having overruled appellant's issues, we affirm the trial court's judgment.

Kevin Jewell Justice