STEVEN ALLEN HARRELL v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

STEVEN ALLEN HARRELL, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–10–01322–CR

Decided: January 20, 2012

Before Chief Justice Wright and Justices Richter and Campbell

OPINION

Opinion By Justice Campbell 1

Appellant entered a plea of not guilty before the trial court to the offense of aggravated assault with a deadly weapon.   The trial court found appellant guilty and assessed his punishment at five years' confinement.   On appeal, appellant raises a single point of error, contending the evidence is insufficient to support the conviction because the State failed to prove that a butter knife was a deadly weapon.   We disagree and affirm.

Relevant Facts

A rather detailed rendition of the facts is necessary to the disposition of appellant's claim.   Viewed in a light most favorable to the verdict, appellant and his wife Luisa were involved in a stormy marriage at the time of the incident in question.   In fact, Luisa was living with an adult daughter, Blanca, at the time of the offense.

On the day at issue, appellant and Luisa attended a barbecue at the home of appellant's friend, John, who was the maintenance man at the apartment complex where Luisa lived with her daughter.   Appellant drank alcoholic beverages heavily, and at some point in the evening, accused Luisa of having an affair with John. Appellant's accusation surprised Luisa and John, who barely knew each other.   Appellant verbally abused both John and Luisa, and John went to his bedroom and locked the door.   Appellant badgered Luisa about an affair until he finally passed out.   The next morning, appellant and Luisa returned to her apartment.

Appellant passed out on the floor, so Luisa lay down to take a nap.   She was awakened by appellant punching and kicking her and hitting her with an exercise weight.   Appellant retrieved a butter knife from the kitchen and returned to attack Luisa again.   He grabbed her with one hand and stabbed at her with the knife that was in his other hand.   She tried pushing him away, but he kept grabbing her and stabbing at the front portion of her torso.   As she was fighting back, he stabbed her on the back of her leg.   Appellant went to the kitchen and dropped the knife in the sink.   When Luisa told him he was going to jail for assault, he punched her in the stomach so hard that she urinated on herself.   She attempted to flee appellant's grasp and shouted to neighbors for help.   Appellant responded to her call for help by yelling that they were just playing.   Luisa grabbed him in the groin area, so he released her and fled the apartment complex on a bicycle.

Luisa then called the Irving Police Department.   Irving Police Officer Holbert responded to the call and proceeded to the apartment complex, where he encountered Luisa.   She was visibly upset, crying and distraught.   Holbert noticed she had urinated on herself.   She recounted to Holbert the events of the assault as outlined herein.   Holbert collected the knife from the kitchen sink, and testified in this trial that a knife, depending on its use, could be a deadly weapon.

The following morning, Irving Police Officer Aussen responded to a call at the same apartment complex where appellant assaulted Luisa.   Aussen met Blanca outside her front door, and both of them heard noises in a storage closet next to Blanca's front door.   Aussen opened the closet and found appellant, who Blanca identified as the person who created the disturbance.   Aussen detained appellant, finding a pocketknife in the storage shed with him.   As officers handcuffed appellant and placed him in the police car, he told Blanca and her boyfriend that he would “get them” and that he was going to “kill them.”

Appellant's and State's Arguments

Appellant contends the State failed to prove an essential element in the indictment, to-wit, that appellant used or exhibited a deadly weapon during the course of assaulting Luisa.   See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).   Specifically, appellant argues the State failed to prove the butter knife used in the assault was a deadly weapon.   He contends he is entitled to an acquittal or a reformation of the judgment to reflect a conviction for the lesser included offense of assault.

The State responds that appellant's close proximity to Luisa, the violent swinging of the knife, other physical force used before, during, and after the assault, and Luisa's fear of serious bodily injury or death, considered together, were enough to show the commission of an aggravated assault beyond a reasonable doubt.   We agree with the State.

Standard of Review

When reviewing a challenge to the sufficiency of the evidence, an appellate court considers all the evidence in the light most favorable to the 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, 319 (1979);  Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010).

Applicable Law

The indictment alleged appellant caused bodily injury by stabbing and cutting Luisa and that he used and exhibited a deadly weapon, to-wit, a butter knife, during the assault.   See Tex. Penal Code Ann. § 22.02(a)(2).   The State was required to prove that appellant intentionally, knowingly, or recklessly caused bodily injury to another and used or exhibited a deadly weapon during the commission of the assault.   See id. at § 22.01(a)(1), (2).   A deadly weapon is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.   See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp.2011).

In this case, the question to be answered is whether the butter knife appellant wielded was, in the manner of its use or intended use, capable of causing death or serious bodily injury.   Whether a knife is “capable” enough to constitute a deadly weapon depends less on opinion evidence and more on what the evidence in a given cases shows as to “the manner of its use or intended use.”   See Tisdale v. State, 686 S.W.2d 110, 116–17 (Tex.Crim.App.1985) (op. on reh'g) (Clinton, J. concurring);  see also Blain v. State, 647 S.W.2d 293, 294 (Tex.Crim.App.1983).

Although a knife is not a deadly weapon per se, the State can, even without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape, sharpness, the manner of its use or intended use, and its capacity to produce death or serious bodily injury.  Blain, 647 S.W.2d at 294.   In determining the deadliness of a weapon, the jury may consider all of the facts of a case, including words spoken by the accused.  Id. Additional factors the State can show are the physical proximity of the parties, the nature of any wounds inflicted, and threats and gestures made by the assailant.   See Brown v. State, 716 S.W.2d 939, 946 (Tex.Crim.App.1986).

Some fifteen years after the decision in Tisdale, the court of criminal appeals reaffirmed its position in Tisdale by stressing that the legislature's placement of the word “capable” in section 1.07(a)(17)(B) was critical in determining whether an object was a deadly weapon.   See McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000).   That Court explained that the plain language of section 1.07(a)(17)(B) does not require 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.   The placement of the word “capable” in the statute enables it to cover conduct that threatens deadly force, even if the actor has no intent of actually using deadly force.  Id. at 503;  see also Ortiz v. State, 993 S.W.2d 892, 895–96 (Tex.Crim.App.1999).

Application Of Law To Facts

In the instant case, it is undisputed that appellant and Luisa attended a barbecue hosted by John. Appellant became very intoxicated and belligerent toward Luisa and John, accusing them of having an affair.   John was so apprehensive of appellant that he locked himself inside his bedroom.   This left Luisa with a drunken appellant for the remainder of the night.   The next morning, after sleeping on the floor at Blanca's apartment, appellant, who was still intoxicated, awoke and began punching and kicking Luisa, and hitting her with an exercise weight.   He then went to the kitchen and grabbed the butter knife.   He returned, wielding the butter knife in question.   Luisa attempted to push him away, but he stabbed her in the leg, after swinging toward her torso.   Appellant went to the kitchen and dropped the knife in the sink.   When he returned, he punched her in the stomach with enough force to cause her to urinate on herself.   He then fled the scene, but was found with a knife the next morning in a storage closet outside Blanca's apartment.

These facts show the size and shape of the knife in the picture that was admitted in evidence;  the fact that appellant was close enough to Luisa to stab, kick, and hit her;  threats and gestures made by appellant;  the nature of the wound to Luisa's leg;  and Holbert's testimony that a butter knife could be a deadly weapon and was capable of causing death or serious bodily injury in the right circumstance.   We conclude the evidence in this case was sufficient beyond a reasonable doubt to prove to the trial court that appellant used and exhibited a deadly weapon capable of causing death or serious bodily injury while he was in the course of assaulting Luisa.   Appellant's sole point of error is overruled.

The judgment of the trial court is affirmed.

FOOTNOTES

FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment..  FN1. The Honorable Charles F. Campbell, Senior Appellate Judge, Texas Court of Criminal Appeals, sitting by assignment.

CHARLES F. CAMPBELL JUSTICE, ASSIGNED

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