Jose Deleon Hernandez v. State ( 2009 )

Affirmed and Memorandum Opinion filed April 7, 2009

Affirmed and Memorandum Opinion filed April 7, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-01017-CR

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JOSE DELEON HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 45,818A

M E M O R A N D U M  O P I N I O N

A jury found appellant Jose Deleon Hernandez guilty of aggravated assault and assessed punishment at 99 years= confinement.  In his sole issue on appeal, appellant contends that the evidence is insufficient to show that the weapon used in the aggravated assault was a deadly weapon.  We affirm.

Background

Appellant and the complainant Sharla Helms were social acquaintances.  Appellant began showing up at the complainant=s house and workplace unannounced and uninvited.  On November 18, 2006, appellant came to the complainant=s house uninvited wearing a blue jumpsuit, gloves, ski cap, and sunglasses.  When the complainant questioned appellant=s attire, appellant became angry; grabbed the complainant=s hair; punched her several times in the face; pulled out a box cutter knife; and told her, AToday is going to be your day to die.@

The complainant tried to calm appellant down, but he continued to grab her hair, hit her, hold the knife to her throat, and tell her that he was going to kill her.  Appellant tried to lay the complainant=s head on the coffee table so he could cut her throat.  After about 90 minutes, the complainant convinced appellant to go with her to a store to get gas. 

Appellant and the complainant left in the complainant=s car.  The complainant was driving at first, but halfway to the store, appellant told the complainant to pull over so he could drive.  They  stopped near Justin Kalinowski=s ranch.  As appellant was going around the car to sit in the driver=s seat, the complainant saw people on the ranch, leaned outside the passenger window, screamed for help, and honked the horn. Kalinowski=s employee, Nickalos Pavlock, heard the complainant=s cry for help and saw appellant grabbing the complainant=s hair and jerking her back into the car.  Appellant started choking her and cut her throat. 

Kalinowski, who was with Pavlock, approached the car and saw the complainant laying in appellant=s lap.  Appellant had one hand on the complainant=s chest and the other on her throat choking her.  When Kalinowski inquired if everything was all right, the complainant struggled to sit up.  Appellant pushed her back down and cut her throat with a box cutter knife.  The complainant asked Kalinowski for help and said, AHe=s going to kill me.@ 

Kalinowski retrieved his rifle from his truck, went back to the car, and pointed his rifle at appellant through the passenger door.  Appellant told the complainant, AThis is your last day,@ and cut her throat.  Pavlock approached the car from the opposite side and grabbed appellant=s head.  Appellant cut the complainant=s throat one last time before he started swinging the knife at Pavlock.  Kalinowski managed to grab the complainant, jerked her out of the car, and instructed her to stay behind his truck.  Pavlock let go of appellant because he continued trying to cut Pavlock.

Appellant stepped out of the car and kept approaching Kalinowski with the box cutter. Kalinowski fired a warning shot, but appellant continued to approach Kalinowski with the box cutter.  Pavlock hit appellant in the face with a stick.  Appellant then started walking away, and Kalinowski called 9-1-1.  Three police officers C Sergeant Scott Soland, Deputy Charles Scott, and Officer Chris Murphy C ultimately subdued and arrested appellant, and retrieved the box cutter.

At trial, the complainant testified that appellant had threatened to kill her more than a dozen times on November 18, 2006.  She testified that she received ten to fifteen stitches for multiple cuts appellant inflicted with the box cutter. The complainant stated that she was in the hospital for approximately eight hours, and that three doctors inspected her wounds because the cuts were so deep and near a main artery.  The complainant and Kalinowski identified State=s Exhibit # 1 as the box cutter appellant used to threaten and cut the complainant.  Sergeant Soland and Deputy Scott also identified State=s Exhibit # 1 as the box cutter knife appellant held in his hand at the time of his arrest.

At trial, the complainant testified that the box cutter appellant used to cut her is capable of causing serious bodily injury or death.  Pavlock testified that the box cutter could be used in such a way as to Aeasily@ kill someone. Kalinowski agreed that the box cutter is capable of being used to kill a person.  Further, Sergeant Soland testified that the box cutter could be used to Akill someone@ or Ahurt someone bad;@ and Deputy Scott testified that the box cutter can Ahurt someone@ or Akill someone.@

Analysis

In his sole issue, appellant argues that the evidence is insufficient to show that the box cutter knife used in the assault was a deadly weapon.  Appellant argues that a box cutter is not a deadly weapon per se and that the injuries inflicted upon the complainant were not serious bodily injuries so as to render the box cutter a deadly weapon in this case.  Appellant also contends that the State failed to provide the jury with expert testimony establishing that Athe weapon was used or intended to be used in such a way that it was >capable of causing death or serious bodily injury.=@ 

Appellant=s issue and argument do not indicate whether he challenges the legal or factual sufficiency of the evidence.  The argument contains no indication of the standard of review, nor does the argument conclude with a prayer for relief by acquittal or reversal and remand for a new trial. However, his brief concludes with a request that we order an acquittal or, in the alternative, reverse and remand for a new trial.  In the interest of justice, we evaluate the evidence under both legal and factual sufficiency standards.

In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  When reviewing legal sufficiency of the evidence, the court may not re‑evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder.   Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414‑15 (Tex. Crim. App.  2006).  The appellate court reviews the evidence in a neutral light in a factual sufficiency review.  Id. at 414.  An appellate court should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  Due deference still must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is only appropriate to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004).

A person commits aggravated assault if he commits assault and either (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) (Vernon Supp. 2008); Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).  ASerious bodily injury@ is Abodily 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) (Vernon Supp. 2008).  A deadly weapon is A(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 Ann. ' 1.07(a)(17) (Vernon Supp. 2008).

In this case, the court=s charge instructed the jury to find the defendant guilty if it found from the evidence that appellant Adid intentionally or knowingly cause bodily injury to [complainant] and . . . use or exhibit a deadly weapon, namely a box cutter or a sharp object.@  Both the indictment and the application paragraph of the aggravated assault charge indicate that appellant was charged with committing the aggravated assault by using or exhibiting a deadly weapon, rather than by causing serious bodily injury. 

A box cutter knife is not a deadly weapon per se.  See Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008); Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003) (en banc); Thomas v. State, 821 S.W.2d 616, 619‑20 (Tex. Crim. App. 1991) (en banc).  Consequently, the State had to prove that the box cutter was, in the manner of its use or intended use, capable of causing death or serious bodily injury.  See Tex. Penal Code Ann. ' 1.07(a)(17). Factors to consider in determining whether a knife qualifies as a deadly weapon include (1) the size, shape, and sharpness of the knife; (2) the manner in which appellant used the weapon; (3) the nature of any inflicted wounds; (4) testimony concerning the knife=s life‑threatening capabilities; and (5) the words appellant spoke.  See Thomas, 821 S.W.2d at 619; Tisdale v. State, 686 S.W.2d 110, 111 (Tex. Crim. App. 1984) (en banc).  Expert testimony is not required to prove that a weapon is deadly; both expert testimony and lay testimony may be independently sufficient to establish that a weapon is deadly.  See English v. State, 647 S.W.2d 667, 668‑69 (Tex. Crim. App. 1983) (en banc); Banargent v. State, 228 S.W.3d 393, 398-99 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).          Appellant asserts that (1) the complainant=s injuries were not serious, and that she was treated and released from the hospital after a few hours; and (2) the State provided no expert testimony establishing that Athe weapon was used or intended to be used in such a way that it was >capable of causing death or serious bodily injury.=@ 

The actual infliction of serious bodily injury or death is not the test for determining whether an object is a deadly weapon.  See Tucker, 274 S.W.3d at 691.  AThe State is not required to show that the >use or intended use causes death or serious bodily injury= but that the >use or intended use is capable of causing death or serious bodily injury.=@ Id. (emphasis in original).  Accordingly, we reject appellant=s argument that a box cutter is not a deadly weapon if the complainant did not suffer serious bodily injury.  See  Davidson v. State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.]1980) (wounds need not be inflicted before a knife can be determined to be a deadly weapon).

While the complainant did not testify how long and sharp the blade of the box cutter was, she identified the weapon at trial; it was admitted into evidence; and the jury was able to see how long and sharp the knife was.  The complainant testified that appellant held the box cutter to her throat almost continually for approximately two to three hours and threatened to kill her more than a dozen times. 

She testified that appellant cut her several times, and that she received ten to fifteen stitches for the multiple wounds appellant inflicted with the box cutter.  The State also introduced pictures of the complainant showing the length of the cuts on her throat.  The complainant testified that she was in the hospital for approximately eight hours, and that three doctors inspected her wounds because the cuts were so deep and near a main artery.

Further, the complainant testified that the box cutter appellant used to cut her is capable of causing serious bodily injury or death.  Pavlock testified that the box cutter could Aeasily@ kill someone.  Kalinowski agreed that the box cutter is capable of killing a person and stated, ADamn near killed [the complainant].@  Kalinowski also agreed that the way appellant was using the box cutter Amost definitely@ could have killed the complainant.

Finally, two police officers also testified that the box cutter was a deadly weapon. Sergeant Soland testified that the box cutter could be used to Akill someone . . . by slitting their throat@ or Ahurt someone bad.@  And Deputy Scott confirmed that the box cutter can Ahurt someone@ or Akill someone . . . if you use it on a throat.@

Reviewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to show that the weapon used in the assault was a deadly weapon.  Viewing the evidence in this case in a neutral light, we conclude that the evidence is factually sufficient to show that appellant used a deadly weapon during the assault.

Conclusion

We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/      William J. Boyce

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R. App. P. 47.2(b).