Brian Lancaster v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

Nos. 10-08-00025-CR, 10-08-00026-CR, 10-08-00027-CR, 10-08-00028-CR,

10-08-00029-CR, 10-08-00030-CR, and 10-08-00058-CR

Brian Lancaster,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court Nos. 07-01488-CRF-272, 07-01490-CRF-272,

07-03055-CRF-272, 07-03056-CRF-272, 07-03057-CRF-272,

07-3058-CRF-272, and 07-01489-CRF-272

ABATEMENT ORDER

            Appellant’s brief is overdue, and after notice to appellant’s counsel to file a brief or extension request, none has been filed.  Therefore, we abate these causes to the trial court for a hearing to determine: (1) why a brief has not been filed on appellant’s behalf; (2) whether counsel has abandoned the appeal; (3) whether appellant still desires to proceed with the appeal; and (4) whether appellant desires self-representation.  See Tex. R. App. P. 38.8(b)(3); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order).

            The trial court shall conduct the hearing within 30 days after the date of this order.  The trial court clerk and the court reporter shall file supplemental records within 45 days after the date of this order.  See Fewins, 170 S.W.3d at 296-97.

                                                                                    PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeals abated

Order issued and filed December 17, 2008

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i>See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  Reviewing all the evidence in a light favorable to the verdict, the evidence is legally sufficient to prove that Martinez threatened to stab Hotelling.  Martinez’s first issue is overruled.

            Hotelling also testified that the knife Martinez used to threaten her was a folding knife, also referred to as a pocket knife, which he unfolded to reveal a 4 inch blade.  Martinez argues in his second issue that because no knife was introduced into evidence and because a knife is not a deadly weapon, per se, the jury was unable to determine whether or not the knife Hotelling testified about was capable of causing serious bodily injury or death.  But Hotelling stated she was afraid that he would hurt her and that the knife was capable of killing her.  Further, Detective Rozyskie, of the Waco Police Department, testified that a pocket knife with a 4 inch blade could be capable of causing serious bodily injury or death by stabbing, slicing, or cutting. 

            It is true that a knife is not a deadly weapon per se.  Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003).  However, 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 v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Tex. Penal Code Ann. § 1.07 (a)(17)(B) (Vernon Supp. 2007).  Objects used to threaten deadly force are deadly weapons. Herring v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006); McCain, 22 S.W.3d at 503.  The State need only show that the weapon used was capable of causing serious bodily injury or death in its use or intended use.  Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App. 2002).

            Reviewing all the evidence in the light most favorable to the verdict, the evidence was sufficient to prove the use or display of a deadly weapon.  Martinez’s second issue is overruled.

            Having overruled each issue presented to us, we affirm the trial court’s judgment.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed February 6, 2008

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