Billy Joe Stofan v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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BILLY JOE STOFAN, No. 08-14-00166-CR
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Appellant, Appeal from the
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v. 109th Judicial District Court
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THE STATE OF TEXAS, of Crane County, Texas
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Appellee. (TC# 1655)
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OPINION
Billy Joe Stofan was convicted of two counts of aggravated assault with a deadly weapon
and sentenced to six years’ imprisonment on each count. In one issue, he challenges the
sufficiency of the evidence supporting his convictions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Stofan was charged with two counts of aggravated assault with a deadly weapon and two
counts of unlawful restraint.1 These charges arose from a series of events transpiring in the early
morning hours of October 28, 2012. At approximately 1:15 a.m. that morning, Dawn Barrow
returned home from a costume party. When Barrow entered the mobile home she shared with
Stofan, her boyfriend, and B.S., her then-twelve-year-old son, Stofan attacked her. Angry with
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The trial court rendered judgments of acquittal on the unlawful restraint counts.
Barrow for not having come home earlier, Stofan grabbed her, threw her onto the bed in their
room, and pinned her down. While on top of Barrow, Stofan put a knife to Barrow’s face and
threatened “to cut [her] from ear to ear.”
Barrow’s hysterical crying woke B.S., who, upon discovering the reason for his mother’s
cries, suffered an asthma attack. After B.S. received treatment, Stofan dragged him and his
mother back to the room, where he taped them to a chair. While B.S. was bound, Stofan grabbed
his hand and asked him which one he wanted. When Barrow asked Stofan what he “mean[t] by
that[,]” Stofan responded, “I’m going to get – I’m going to cut one of his fingers off.” Barrow
broke free and clutched B.S.’s hands. Incensed, Stofan seized Barrow by the throat and shoved
her to the back of the closet. Barrow passed out, but when she regained consciousness, Stofan
hauled her into the bathroom. While choking Barrow, Stofan “raised the knife above [her] like he
was going to stab [her] in [her] heart, but he changed his mind at the last minute and stabbed [her]
bathroom wall.” The ordeal ended a few minutes later, however, when Stofan gave the
knife—and four others—to B.S. Barrow and B.S. eventually escaped to a neighbor’s house, and
the police were summoned. The responding officer, Luis Navarette, discovered several knives in
B.S.’s room. After B.S. pointed out the knife Stofan used, Officer Navaratte photographed it and
collected it as evidence. The photograph shows three kitchen steak knives lying next to a pair of
men’s work boots (SX-2).
At trial, Barrow could not identify the specific steak knife brandished by Stofan, but she
was certain it was one of those depicted in State’s Exhibit No. 2. B.S., on the other hand, was
more certain than his mother in identifying the knife wielded by Stofan:
[PROSECUTOR]: Okay. And can you identify the knife that Mr. Stofan had in
the bedroom when he had you tied –
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[B.S.]: This one.
[PROSECUTOR]: Okay. Does it kind of look like the other knife?
[B.S.]: Yes, ma’am. But it is a little bit longer.
On cross-examination, B.S. confirmed that the particular knife brandished by Stofan was depicted
in State’s Exhibit No. 22:
[DEFENSE COUNSEL]: And Ms. Holguin was showing you a photo there. The
knives that you were talking about in that photo -- Was the knife that you think that
you saw Billy have in that picture; or was it -- was it one of the longer ones that’s
not in that picture?
[B.S.]: It was in the picture, the long one on the picture.
This steak knife was admitted into evidence as State’s Exhibit No. 19 and shown to the jury.3
DEADLY WEAPON
Stofan contends that the State failed to prove the knife he wielded was a deadly weapon.
We disagree.
Standard of Review
The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in
determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323
S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency of the evidence to
support a criminal conviction, we view the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and reasonable inferences therefrom, a rational juror
could have found the essential elements of the offense beyond a reasonable doubt. Hooper v.
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B.S.’s testimony refutes the claim made by Stofan that “no witness ever specifically identified the knife used.”
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Stofan incorrectly claims that “[o]nly exemplars were shown to the jury.”
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State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at
2788-89.
Under a legal sufficiency review, we may not substitute our judgment for that of the jurors,
who are the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given
to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore
defer to the jurors’ resolution of these issues and to their responsibility to draw reasonable
inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S.
at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences
may be drawn from them, the jurors may accept one version of the facts and reject another, and
they may reject any part of a witness’s testimony, even if uncontradicted. See Margraves v. State,
34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275
S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston
[1st Dist.] 2000, pet. ref’d).
Applicable Law
A person commits an assault if he intentionally, knowingly, or recklessly causes bodily
injury to another. TEX.PENAL CODE ANN. § 22.01(a)(1)(West Supp. 2014). The assault
becomes aggravated when the person: (1) causes serious bodily injury to another; or (2) uses or
exhibits a deadly weapon during the commission of the assault. TEX.PENAL CODE ANN.
§ 22.02(a)(1), (2)(West 2011). 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.”4 TEX.PENAL CODE ANN.
§ 1.07(a)(17)(B)(West Supp. 2014). Although a knife is not a deadly weapon per se, it becomes
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“Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
TEX.PENAL CODE ANN. § 1.07(a)(46)(West Supp. 2014).
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one if the person brandishing it, uses it, or intends to use it in a manner capable of causing death or
serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000).
The capacity of a knife to cause death or serious bodily injury is evaluated in light of the
facts surrounding the particular offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.
1991). When, as here, the knife does not cause death or serious bodily injury, to support the
finding that the offense was aggravated by the display of the knife, the State must adduce evidence
establishing that the knife was capable of producing these results. Id. Pertinent evidence
includes: (1) the knife’s size, shape, and sharpness; (2) the manner of its use or intended use; (3)
its life-threatening capabilities; (4) the physical proximity between the victim and the knife; (5) the
words, if any, spoken by the person brandishing the knife; and (6) the nature or existence of
inflicted wounds. Magana v. State, 230 S.W.3d 411, 414 (Tex.App.--San Antonio 2007, pet.
ref’d). No single factor is determinative. Bailey v. State, 46 S.W.3d 487, 491
(Tex.App.--Corpus Christi 2001, pet. ref’d).
Discussion
When viewed in the light most favorable to the verdict, the evidence is sufficient to support
the jury’s finding that the steak knife displayed by Stofan was capable of inflicting death or serious
bodily injury based on the manner of its use or intended use, and was therefore a deadly weapon.
Relying primarily on evidence concerning the manner of the knife’s use or intended use,
the physical proximity between the victims and the knife, the words spoken by Stofan, and the
existence of inflicted wounds, the State established that—by deed and word—Stofan threatened to
seriously injure Barrow and B.S. with the knife and—by deed—injured Barrow with the knife.
Barrow testified that Stofan put the steak knife to her face and threatened to cut it. According to
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Barrow, the abrasions to her cheeks depicted in State’s Exhibits Nos. 3 and 4 were caused by the
knife. Barrow also testified that Stofan acted as if he was going to stab her heart with the knife.
Both Barrow and B.S. related that Stofan put the steak knife to B.S.’s hand and threatened to cut
off one of his fingers. As the exclusive judge of the credibility of witnesses, the jury was free to
believe Barrow’s and B.S.’s version of the facts. By finding Stofan guilty, the jury apparently
chose to believe them, and their testimony supports the jury’s finding that Stofan assaulted them
and used or exhibited a deadly weapon, i.e., the steak knife, while doing so.
In challenging the sufficiency of the evidence supporting his conviction, Stofan raises three
arguments. None are persuasive.
First, he contends that the absence of testimony regarding the knife’s size, shape, and
sharpness or its capacity to cause serious bodily injury means that “the State wholly failed . . . to
present . . . evidence of the dangerousness of the knife.” But Stofan’s contention is without merit
because it is belied by the record and case law.
The record refutes Stofan’s contention. The knife and photographs of it were introduced
into evidence. These photographs depict the knife’s size, shape, and sharpness. The knife has an
approximate overall length of six inches, and its blade is longer than its handle, is serrated, and
ends in a sharp point. Plainly, the knife is capable of causing death or serious bodily injury.
The soundness of Stofan’s contention is likewise negated by existing authority. It is
well-settled that expert testimony is not required to establish that a specific knife is a deadly
weapon. Davidson v. State, 602 S.W.2d 272, 273 (Tex.Crim.App. [Panel Op.] 1980). Nor is the
State required to elicit testimony concluding that the weapon was capable of producing serious
bodily injury. Williams v. State, 575 S.W.2d 30, 32 (Tex.Crim.App. 1979). Thus, to support the
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finding that the offense was aggravated by the display of the steak knife, the State was not required
to adduce testimony, lay or otherwise, establishing that the steak knife was a deadly weapon.
And, as noted earlier, no single factor is determinative. See Bailey, 46 S.W.3d at 491.
Accordingly, even if the record contained no evidence of the knife’s size, shape, and sharpness, the
jury could have relied on the other evidence adduced by the State to conclude that the knife was
capable of inflicting death or serious bodily injury based on the manner of its use or intended use.
Second, Stofan argues that the State failed to prove “that the knife was used as a deadly
weapon” because the evidence does not demonstrate that he displayed the knife “in a manner
conveying an express or implied threat of serious bodily injury or death.” [Emphasis omitted].
In support of his argument, Stofan cites the aforementioned Davidson and Tisdale v. State, 686
S.W.2d 110 (Tex.Crim.App. 1984). But Stofan’s reliance on these cases is misplaced. In
Davidson, the knife in question was not introduced in evidence and the testimony established that
it was held no closer than five feet from the complaining witness. See Davidson, 602 S.W.2d at
274. Here, by contrast, the knife was introduced into evidence and the testimony established that
it was held to Barrow’s face and to B.S.’s hand. In Tisdale, there was no evidence of any
threatening words or gestures by the appellant. See Tisdale, 686 S.W.2d at 111-12. The
converse is true here. Stofan threatened to cut Barrow’s face and B.S.’s finger and acted as if he
was going to stab Barrow in the heart.
Third, Stofan asserts that “[t]he State failed to provide the jury evidence that either Barrow
or [B.S.] suffered serious bodily injury.” But the State was not prosecuting Stofan for aggravated
assault under that theory. Rather, as the indictments make clear, the State was proceeding under
the theory that Stofan was guilty of aggravated assault because he used or exhibited a deadly
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weapon while assaulting Barrow and B.S.:
[C]ause [sic] bodily injury to Dawn Barrow, by grabbing her face and choking her
and placed a knife to her face threatening to cut her face, and the defendant did then
and there use and exhibit a deadly weapon, to wit, a knife, during the commission
of said assault, which in the manner of its use and intended use was capable of
causing death or serious bodily injury . . . .
. . .
[C]ause [sic] bodily injury to [B.S.] by grabbing him and throwing him, and
threatening to cut his finger off, and the defendant did then and there use and
exhibit a deadly weapon, to wit, a knife, during the commission of said assault,
which in the manner of its use and intended use was capable of causing death or
serious bodily injury . . . .
This was the theory of responsibility submitted to the jury in the trial court’s charge. And this was
theory of responsibility supported by the evidence.
Stofan’s issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
July 10, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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