Dennis Michael Gosdin v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-274-CR
DENNIS MICHAEL GOSDIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Dennis Michael Gosdin appeals his conviction for two counts of
aggravated sexual assault with a deadly weapon. In two points, he challenges
the legal and factual sufficiency of the evidence to support the jury’s finding
that the knife he used or exhibited during the assaults was a deadly weapon.
We affirm.
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… See Tex. R. App. P. 47.4.
Background
The complainant, “Erica” (a pseudonym), is a prostitute. She testified
that Appellant picked her up off the street in his pick-up truck, drove her to a
secluded location, and—when she insisted that he pay her “before anything else
went on”—pulled out a knife. Erica described the knife as “[l]ike a Bowie knife,
a long one,” “a huge knife,” with “spikes” on the back edge. She testified that
Appellant leaned toward her with the knife in a threatening manner, pointed the
knife at her stomach, and ordered her to undress. She said that she believed
the knife could cause serious bodily injury or death, that Appellant had the
present ability to cause serious bodily injury or death, and that she was afraid
Appellant was going to kill her. The knife was admitted into evidence and
shown to the jury, and a photograph of the knife appears in the record. The
knife has a blade seven and three-quarter inches long, a barbed or deeply
serrated spine, and “knuckles” on the grip.
Appellant forced Erica to perform oral sex on him; then he penetrated her
female sexual organ with his penis. Afterwards, Appellant allowed Erica to get
out of his truck. She memorized his license plate number and reported the
assault to the police.
A grand jury indicted Appellant for two counts of aggravated sexual
assault, alleging that Appellant “used or exhibited a deadly weapon, to-wit: a
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knife, that in the manner of its use or intended use was capable of causing
death or serious bodily injury.” A jury convicted Appellant on both counts. The
trial court found a repeat-offender allegation to be true and sentenced Appellant
to two life sentences.
Standards of Reviews
When reviewing the legal sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution in order to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
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determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.
Discussion
Although a knife is not a deadly weapon per se, the court of criminal
appeals has held that an object, such as a knife, can be a deadly weapon if the
actor intends to use the object in a way in which it would be capable of causing
death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 502–03 (Tex.
Crim. App. 2000); Russell v. State, 804 S.W.2d 287, 290 (Tex. App.—Fort
Worth 1991, no pet.); see also Tex. Penal Code Ann. § 1.07(17)(B) (Vernon
2002) (defining “deadly weapon” as “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury”). Serious
bodily injury means 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). Factors considered in determining whether a knife is
capable of causing death or serious bodily injury include the physical proximity
of the parties; the threats or words used by the defendant; the size, shape, and
sharpness of the weapon; the manner in which the defendant used the weapon;
and the wounds inflicted on the victim. Brown v. State, 716 S.W.2d 939, 946
(Tex. Crim. App. 1986); Bailey v. State, 46 S.W.3d 487, 491–92 (Tex.
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App.—Corpus Christi 2001, pet. ref’d) (op. on remand); Garcia v. State, 17
S.W.3d 1, 4–5 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); see also
McCain, 22 S.W.3d at 503 (“[T]he mere carrying of a butcher knife during such
a violent attack as occurred in the present case was legally sufficient for a
factfinder to conclude that the ‘intended use’ for the knife was that it be
capable of causing death or serious bodily injury.”).
In this case, Appellant pointed a knife with a blade over seven inches long
at Erica’s stomach within the close confines of his pick-up’s cab and ordered
her to undress. Erica testified that, in her opinion, the knife was capable of
causing death or serious bodily injury and that she was afraid Appellant was
going to kill her with it. The knife was admitted into evidence, and the jury
could assess the size, shape, and sharpness of the knife for itself. From the
black and white photograph in the reporter’s record, we can see that the knife
is a combat-style weapon with a long, curved blade, a barbed spine, and a
knuckled grip.
Appellant cites several cases in which appellate courts deemed the
evidence insufficient to prove that a knife was a deadly weapon. Those cases
are easily distinguishable because the knives in question were not offered into
evidence and, in some cases, not even clearly described by testimony. See,
e.g., Blaine v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983) (holding
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evidence insufficient to prove defendant used a deadly weapon when
complainant testified that defendant displayed “something like a kitchen knife”
during robbery but could not say whether it had a sharp edge or how long the
blade was); Davidson v. State, 602 S.W.2d 272, 274 (Tex. Crim. App. 1980)
(holding evidence insufficient to establish that knife was a deadly weapon when
witnesses estimated the blade’s length to be anywhere from two-and-a-half to
five inches, the knife was not introduced into evidence, and the State offered
no testimony about the knife’s potential to inflict death or serious bodily injury);
Turner v. State, 688 S.W.2d 698, 701 (Tex. App—Houston [1st Dist.] 1985)
(holding evidence insufficient when knife was not introduced into evidence;
there was no testimony about the knife’s size or blade or even whether the
blade was open; and there was no testimony of threats or fear of death or
serious bodily injury), vacated on other grounds, 720 S.W.2d 533 (Tex. Crim.
App. 1986). In the case before us, unlike the cases upon which Appellant
relies, the knife was thoroughly described, and the actual knife was admitted
into evidence, allowing the jury to assess whether the knife was capable of
causing death or serious bodily injury.
Considering the evidence in the light most favorable to the prosecution,
we hold that a rational trier of fact could have found beyond a reasonable doubt
that Appellant’s knife was, in the manner of its use or intended use, capable of
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causing death or serious bodily injury and was, therefore, a deadly weapon.
Thus, the evidence is legally sufficient to support the jury’s verdict. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
We overrule Appellant’s first point.
Considering the evidence in a neutral light, it is not so weak that the
jury’s verdict is clearly wrong and manifestly unjust. See Lancon, 253 S.W.3d
at 704. Nor is there any conflicting evidence whatsoever. Therefore, the
evidence was also factually sufficient, and we overrule Appellant’s second
point.
Conclusion
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 2, 2009
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