Gabriel Joseph Brown v. State ( 2012 )

MEMORANDUM OPINION
No. 04-11-00413-CR
Gabriel Joseph BROWN,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR11285
Honorable Melisa Skinner, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: August 1, 2012
AFFIRMED
Gabriel Joseph Brown was convicted of aggravated assault with a deadly weapon and
sentenced to forty-two years in prison as a repeat offender. Brown appeals the judgment,
arguing the evidence is legally insufficient to support the jury’s verdict as to the use of a deadly
weapon and the trial court erred in not submitting a jury instruction on a lesser-included offense.
We affirm the judgment.
04-11-00413-CR
BACKGROUND
The complainant, Myrna Medina, testified she met Brown at her place of employment
and eventually allowed him to move into the house Medina shared with her mother, Gloria
Acosta. The night before the attack, Medina and Brown had gone to a nightclub with another
couple. After returning home, Medina began watching television in the living room. Brown
wanted her to go to their bedroom, but Medina declined. Medina testified Brown got angry and
began pulling her towards the bedroom. Medina got away and went into her mother’s bedroom.
Brown followed her into Acosta’s bedroom and continued the argument. Acosta told Brown to
leave Medina alone and go back to his room. Both women testified that throughout the morning
Brown would return to Acosta’s bedroom and attempt to get Medina to go with him. Acosta
testified that at around 5:00 a.m., she got up to prepare for work and went to take a shower.
Medina was ironing her mother’s work clothes when she noticed Brown walk into the room
wearing white “medical” gloves. Medina testified this frightened her and she went to tell her
mother. Medina walked through the kitchen and noticed the gas on the stove was on, but there
was no flame. As she went to turn the gas off, Brown stabbed her in the back of her neck. When
she turned to confront Brown, he stabbed her in the arm. Medina testified blood began
“squirting” from her arm. She saw the weapon and described it as a steak knife with a serrated
edge. She testified the knife was “that long,” but neither party clarified Medina’s hand gesture
indicating the length of the knife for the record. Medina stated the attack continued and Brown
stabbed her several more times before pushing her to the floor. Medina screamed for her mother.
Acosta testified she was in the shower when she heard her daughter calling for her.
Acosta wrapped herself in a towel and went to investigate. As she entered the kitchen, she saw
Brown wearing surgical gloves and holding a steak knife. Acosta asked “what’s going on,” and
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Medina responded that Brown had stabbed her. Acosta tried to help Medina, but Brown pushed
her to the floor. Acosta noticed her daughter was bleeding and saw Brown continue to “poke”
Medina with the knife. Acosta also testified that it was hard to breathe because gas was coming
from the stove.
Both women testified that Brown then left the room and returned with a container of
gasoline. He poured the gasoline over Medina’s head. Medina testified that, fearing for her life,
she mustered the strength to get up and struggle with Brown, and he eventually left the house.
The police were called and Medina was taken to a hospital where she received treatment for her
injuries. Dr. Helen Skaggs testified that Medina received at least seven stab wounds — two on
the chest, one on the arm, two on the lower neck on either side of the spine, one on the front
shoulder and one on her “flank.” Dr. Skaggs testified that although no wound penetrated the
chest or abdominal cavities, many of the wounds were near major blood vessels. She told the
jury that special procedures were used to determine if any blood vessels in the neck were
compromised because of the location of the neck wounds. She also stated her opinion that a
knife could be a deadly weapon, but she was not asked her opinion about the particular knife
used in this case. Finally, Medina’s medical records were placed into evidence, including a
report by the EMS technicians. In that report, the knife is described as being six inches long.
SUFFICIENCY OF THE EVIDENCE
In a challenge to the legal sufficiency of the evidence to support a jury’s verdict, we
review all of 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. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962
(2005). “The jury is the sole judge of credibility and the weight to be attached to the testimony
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of the witnesses.” Merritt v. State, No. PD-0916-11, 2012 WL 1314095, at *8 (Tex. Crim. App.
Apr. 18, 2012). We resolve any inconsistencies in the testimony in favor of the verdict. Curry v.
State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We defer to the jury’s determination of the
weight to be given to contradictory testimonial evidence because resolution of the conflict is
often determined by the jurors’ evaluation of the witnesses’ credibility and demeanor. Johnson
v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).
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 2011). The assault is aggravated
when the person uses or exhibits a deadly weapon during the assault. Id. § 22.02(a)(2). A
deadly weapon is one that “in the manner of its use or intended use is capable of causing death or
serious bodily injury.” Id. § 1.07(a)(17)(B). “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.” Id. § 1.07(a)(46).
“Bodily injury” is “physical pain, illness, or any impairment of physical condition.” Id.
§ 1.07(a)(8). Brown challenges only the sufficiency of the evidence that he used a deadly
weapon during the assault.
“Although a knife is not a deadly weapon per se, it has been held that it can qualify as
such through the manner of its use, its size and shape and its capacity to produce death or serious
bodily injury.” Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. [Panel Op.] 1978); see
Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991) (holding that kitchen knives,
utility knives, straight razors, and eating utensils are not deadly weapons per se); see also TEX.
PENAL CODE ANN. § 1.07(a)(17)(B). An object is a deadly weapon if the injuries produced result
in death or serious bodily injury. See Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App.
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1995). But if a knife did not cause serious bodily injury or death, to qualify as a deadly weapon
the evidence must prove “the actor intend[ed] a use of the [knife] 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). “Even without expert testimony or a description of the weapon, the injuries suffered by
the victim can by themselves be a sufficient basis for inferring that a deadly weapon was used.”
Tucker v. State, 274 S.W.3d 688, 691-92 (Tex. Crim. App. 2008). The State may establish a
knife was capable of causing death or serious bodily injury through witnesses’ descriptions of the
knife’s size, shape, and sharpness; testimony of the knife’s life-threatening capabilities; the
manner in which the knife was used; the words spoken by the defendant; the physical proximity
between the victim and the knife; and the nature of any wounds caused by the knife. See Lowe v.
State, 211 S.W.3d 821, 828 (Tex. App.–Texarkana 2006, pet. ref’d); Victor v. State, 874 S.W.2d
748, 751-52 (Tex. App.–Houston [1st Dist.] 1994, pet. ref’d). Expert testimony is not required,
but may be useful when the evidence on the deadly nature of the knife is meager. Davidson v.
State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.] 1980). Clearly, whether a particular
knife is a deadly weapon depends upon the evidence. Thomas, 821 S.W.2d at 620.
Discussion
Here, the evidence did not establish that Medina suffered serious bodily injury resulting
from the attack. Therefore, resolution of the issue turns on whether the knife and the manner of
use and intended use during the assault was capable of causing serious bodily injury or death.
According to the medical records, the knife was six inches long. Both Acosta and Medina
testified Brown used the knife to “stab” Medina. The jury could infer from such testimony that
the knife was used in a plunging manner rather than a slicing motion. Dr. Skaggs testified many
of the wounds were near major blood vessels, and at least two of the wounds were in the chest
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and two were on the lower neck or back. Based on this testimony, a rational jury could have
concluded that the use of a six-inch knife in a plunging or stabbing manner near major blood
vessels in the neck and chest was capable of causing serious bodily injury or death. See Tucker,
274 S.W.3d at 692 (holding stab wound to the back of the neck near the spine — a vulnerable
area — “would seem to carry at least some potential for resulting in a serious bodily injury such
as paralysis or death”). We hold the evidence was legally sufficient to support the jury’s verdict.
LESSER-INCLUDED OFFENSE
Brown also argues the trial court erred when it refused to charge the jury on the lesser-
included offense of assault (bodily injury). We begin our analysis by determining whether
assault (bodily injury) is a lesser-included offense of the charged offense. Goad v. State, 354
S.W.3d 443, 446 (Tex. Crim. App. 2011). If so, we then decide whether the instruction is
warranted by the evidence, that is, whether the evidence “permits a rational jury to find the
defendant guilty only of the lesser-included offense.” Id. “[I]t is not enough that the jury may
disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some
evidence directly germane to the lesser-included offense for the finder of fact to consider before
an instruction on a lesser-included offense is warranted.” Hampton v. State, 109 S.W.3d 437,
441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State, 298 S.W.3d 644
(Tex. Crim. App. 2009). “Anything more than a scintilla of evidence is sufficient to entitle a
defendant to a lesser charge.” Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
Here, Brown was charged with aggravated assault in that he “did use and exhibit a deadly
weapon, NAMELY: A KNIFE, THAT IN THE MANNER OF ITS USE AND INTENDED USE
WAS CAPABLE OF CAUSING DEATH AND SERIOUS BODLIY INJURY, and [Brown] did
intentionally, knowingly and recklessly CAUSE BODILY INJURY to Myrna Medina, . . . by
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CUTTING AND STABBING THE COMPLAINANT WITH SAID DEADLY WEAPON . . . .”
The offense of assault (bodily injury) is clearly within the charged offense in that Brown was
accused of causing bodily injury to Medina while using and exhibiting a deadly weapon.
We next consider whether the evidence would permit the jury to rationally conclude that
Brown was guilty only of assault rather than aggravated assault. Brown argues that the jury
could have determined that the knife was not a deadly weapon based in part on the fact Medina
suffered only bodily injury resulting from the attack. Brown contends there is “some evidence
from which a rational jury could have found [he] did not use or exhibit” a deadly weapon.
We disagree with Brown’s analysis. First, Brown points to no evidence that suggests he
is guilty only of the lesser offense. Although the jury could have found the knife was not a
deadly weapon, there is no affirmative testimony or other evidence that the knife was not a
deadly weapon. See Hampton, 109 S.W.3d at 440-41. And rather than looking only at the
resulting injuries, as Brown suggests, we review all the evidence to determine how the knife was
used and its intended use during the attack and the life-threatening capabilities of the knife. See
Lowe, 211 S.W.3d at 827. Here, there is no evidence that suggests Brown is guilty only of the
lesser offense of assault (bodily injury) because the knife was not a deadly weapon. See Ferrel,
55 S.W.3d at 590-91 (holding defendant not entitled to lesser-included offense instruction of
assault when no evidence existed to suggest victim did not suffer serious bodily injury); Dobbins
v. State, 228 S.W.3d 761, 769-70 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d, untimely
filed) (defendant not entitled to lesser-included offense jury instruction where no evidence
indicated defendant did not use vehicle in manner capable of causing serious bodily injury or
death). The trial court did not err in refusing the requested instruction.
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CONCLUSION
The judgment of the trial court is affirmed.
Steven C. Hilbig, Justice
DO NOT PUBLISH
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