Mickey Ray Taylor Jr. v. the State of Texas ( 2022 )

Opinion filed December 1, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00233-CR
__________
MICKEY RAY TAYLOR JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR56540
MEMORANDUM OPINION
The State indicted Appellant, Mickey Ray Taylor Jr., for two felony offenses
involving aggravated assault with a deadly weapon. Count I alleged that Appellant
committed aggravated assault with a deadly weapon against Oneita Poor, his then-
fiancée, which caused her serious bodily injury, a first-degree felony offense.
Count II alleged that, on the same date, Appellant committed aggravated assault with
a deadly weapon against Dana Caldwell, his mother, a second-degree felony offense.
The jury found Appellant guilty of both offenses and assessed his punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of fifteen years on Count I and a term of five years on Count II.
This appeal followed.
Appellant raises two issues on appeal. First, Appellant contends that the
evidence was insufficient to support the deadly weapon finding in Count II. Second,
Appellant asserts that the trial court improperly assessed court-appointed attorney’s
fees against Appellant, an indigent individual. We modify and affirm.
Background
On the night of April 10, 2021, Appellant, Poor, and Caldwell were in
Caldwell’s home. Poor testified that Appellant’s demeanor “had been a little off”
that day. Caldwell testified that Appellant “was agitated” that night and that his
agitation escalated when the alarm on her cell phone rang to prompt her to begin
getting ready for work.
Caldwell testified that, when Caldwell’s alarm rang, Appellant “flew across
the room at [Caldwell]” with kitchen scissors, “wrapped his arm around” her, and
put the scissors “right at [Caldwell’s] throat,” stating, “I can’t believe it was my own
mother” that “did it.” Caldwell testified that Appellant, in this highly agitated state, 1
took her cell phone, “stabbed [the phone] three times on the front and flipped it over
and stabbed it three times on the back, and then hurled it at [the] television as hard
as he could.” Caldwell testified that Appellant then held Poor and Caldwell in the
home for approximately two hours. Appellant then threatened them and said that,
1
There is no testimony in the record that accounts for Appellant’s extreme behavior. However, on
cross-examination, Caldwell testified that her “son likes recreational drugs. And whenever he takes drugs
he is very paranoid”; however, she did not specifically state that he was on or taking drugs that day. During
the punishment phase, Caldwell testified that it is “like a demon” and that Appellant is “good until he’s on
that drug. And he is vicious when he’s on that drug.”
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“if they took him or killed him, he was going to take one or both of [them] with him
when he went.”
Caldwell testified that when Poor managed to escape the home and attempted
to run away, Appellant jumped up and turned around. As he did so, he hit Caldwell
with the scissors, which “stunned [her] for a minute.” Appellant’s acts against
Caldwell left a puncture wound on her cheekbone and scratch marks from the
scissors on her throat.
Poor testified that she attempted to escape by going down the front steps but
that Appellant “tackled” her from behind. Appellant then stabbed Poor in her ear
and on her back, face, and neck while on top of her. Appellant’s acts against Poor
resulted in numerous stab wounds and cuts that necessitated surgery and stitches.
Poor also lost feeling behind her ear and on her hand as a result of Appellant’s acts.
During Appellant’s assault on Poor, Caldwell escaped the house, hid behind
the cars in the driveway, and “crawled across the street to [her] neighbors’ house”
to ask one of the residents to call 9-1-1. Midland County Sheriff’s Deputies Brantley
Anderson and Steven Ramirez responded to the call to find Appellant “straddling”
Poor with “the blade [of the scissors] pointed out of the back of his [right] hand”
toward her. The deputies took Appellant into custody after numerous commands for
him to drop the scissors.
Discussion
I. Sufficient Evidence that the Scissors Were Used as a Deadly Weapon
In his first issue, Appellant contends that the evidence at trial was insufficient
to support the deadly weapon finding in the aggravated assault against Caldwell.
Appellant asks that we reverse his conviction for Count II and remand the case to
the trial court for a new trial.
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A. Standard of Review
We review a challenge to the sufficiency of the evidence, regardless of
whether it is framed as a legal or factual sufficiency challenge, under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288−89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Zuniga v. State, 551 S.W.3d
729, 732 (Tex. Crim. App. 2018); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
Viewing the evidence in the light most favorable to the verdict requires that
we consider all the evidence admitted at trial. Winfrey v. State, 393 S.W.3d 763, 767
(Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). As such, we defer to the factfinder’s credibility and weight determinations
because the factfinder is the sole judge of the witnesses’ credibility and the weight
to afford such testimony. Winfrey, 393 S.W.3d at 768; Brooks, 323 S.W.3d at 899.
The Jackson standard is deferential and accounts for the factfinder’s duty to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from the facts. Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 732; Clayton, 235
S.W.3d at 778. We may not reevaluate the weight and credibility of the evidence to
substitute our judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999). Therefore, if the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the verdict, and we
defer to that determination. Jackson, 443 U.S. at 326; Merritt v. State, 368 S.W.3d
516, 525−26 (Tex. Crim. App. 2012); Clayton, 235 S.W.3d at 778.
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Because the standard of review is the same, we treat direct and circumstantial
evidence equally. Isassi, 330 S.W.3d at 638; Clayton, 235 S.W.3d at 778; Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor and can, without
more, be sufficient to establish his guilt. Carrizales v. State, 414 S.W.3d 737, 742
(Tex. Crim. App. 2013) (citing Hooper, 214 S.W.3d at 13). A guilty verdict does
not require that every fact must directly and independently prove a defendant’s guilt.
Hooper, 214 S.W.3d at 13. Instead, the cumulative force of all the incriminating
circumstances may be sufficient to support the conviction. Id. Therefore, in
evaluating the sufficiency of the evidence, we must consider the cumulative force of
the evidence. Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).
The factfinder may consider a multitude of factors to determine whether the
evidence presented sufficiently supports a finding that a particular weapon
constitutes a deadly weapon. For example, a factfinder may consider the
(1) proximity of the weapon to the victim; (2) nature of any wounds sustained;
(3) words spoken by the defendant; (4) weapon’s size and shape; (5) weapon’s
ability to cause serious bodily injury or death; (6) manner in which the defendant
used the weapon; and (7) testimony that the victim feared serious bodily injury or
death. Babcock v. State, 501 S.W.3d 651, 655 (Tex. App.—Eastland 2016, pet.
ref’d); Hopper v. State, 483 S.W.3d 235, 239 (Tex. App.—Fort Worth 2016, pet.
ref’d); see also Brickley v. State, 623 S.W.3d 68, 76 (Tex. App.—Austin 2021, pet.
ref’d); Leal v. State, 527 S.W.3d 345, 348 (Tex. App.—Corpus Christi–Edinburg
2017, no pet.); Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d).
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B. Analysis
In Count II, the indictment charged Appellant with aggravated assault,
alleging that he intentionally, knowingly, and recklessly caused bodily injury to
Caldwell by cutting or striking her about the head or body with a deadly weapon, to
wit: scissors. The Texas Penal Code defines “deadly weapon” as “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)(B) (West 2021). The Penal Code’s
“plain language” does not require that the actor actually intend to cause death or
serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).
As an initial matter, Appellant asserts that the evidence “must be evaluated at
the time of the alleged assault against Caldwell,” thereby urging that we restrict its
review to Appellant’s specific acts against Caldwell. In response, the State contends
that, during our analysis, we can and should consider the manner in which Appellant
used the scissors against Caldwell and Poor because the assaults against both women
occurred in the same “criminal episode” or were at least “highly connected.” As
stated above, we are required to consider all the evidence admitted at trial. See
Winfrey, 393 S.W.3d at 767; Clayton, 235 S.W.3d at 778.
We are also required to consider the facts of the case and the particular manner
in which Appellant used or exhibited the scissors during the commission of the
offense. See PENAL § 22.02(a)(2) (West Supp. 2022); McCain, 22 S.W.3d at 502;
Johnson v. State, 509 S.W.3d 320, 324 (Tex. Crim. App. 2017). In McCain, the
Court of Criminal Appeals delineated a two-part test to determine whether “the
element of use or exhibition of a deadly weapon is satisfied.” Flores v. State, 620
S.W.3d 154, 158 (Tex. Crim. App. 2021) (citing McCain, 22 S.W.3d at 502). Under
McCain, we must first decide “whether the object ‘could be a deadly weapon under
the facts of the case’” based upon the defendant’s “particular manner of use or
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intended use of the object.” Id. at 158−59 (quoting McCain, 22 S.W.3d at 502).
Second, we must decide whether the deadly weapon was “used or exhibited . . .
during the criminal transaction to facilitate commission of the crime.” Johnson, 509
S.W.3d at 324 (emphasis added) (citing McCain, 22 S.W.3d at 503). Accordingly,
we consider all the facts and circumstances surrounding the defendant’s use or
exhibition of the scissors during the criminal transaction. Id.; see also Winfrey, 393
S.W.3d at 767; Clayton, 235 S.W.3d at 778.
We next turn to the factors that the jury could have considered in this case
during its determination. See Babcock, 501 S.W.3d at 655.
1. Proximity of the Weapon to the Victim
Caldwell and Poor testified that Appellant held the scisssors to Caldwell’s
neck during the commission of the assault while the women were held in Caldwell’s
home. Appellant hit Caldwell with the scissors, and the scissors left a puncture
wound on Caldwell’s cheekbone. Appellant left no distance between Caldwell and
the scissors during the commission of the assault.
2. Nature of Wounds Sustained
According to the testimony and photographic evidence, Appellant caused the
scissors to physically contact Caldwell’s neck and head during the commission of
the assault. The scissors left several scratch marks on Caldwell’s neck from
Appellant’s use and exhibition of the scissors during his assaults. Appellant’s use
of the scissors also left an approximate one-half-inch-long puncture wound on the
right side of Caldwell’s face after Appellant struck her with the scissors. Based on
Appellant’s use or intended use of the scissors, the wounds Caldwell sustained on
her neck and head demonstrate that the scissors were capable of causing serious
bodily injury or death during the commission of the assault.
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3. Words Spoken by Appellant
Caldwell testified that, after her cell phone alarm rang, Appellant put the
scissors against her throat and stated, “I can’t believe it was my own mother” that
“did it.” Caldwell testified that Appellant threatened her and Poor by stating that “if
they took him or killed him, he was going to take one or both of [them] with him
when he went.” Appellant’s words are consistent with the jury’s finding that the
scissors constituted a deadly weapon.
4. Size and Shape of Weapon
Investigator Anderson and Poor testified that the scissors were medium-sized
“kitchen type” scissors. Poor testified that the scissors also had a “pointy” part on
the handle of the scissors consistent with a bottle opener. According to the
photographic evidence, the scissors were approximately eight inches long and
consisted of a four-inch-long blade, a three-inch-long rubber grip, and a bottle
opener at the end of the grip. The size and the shape of the scissors weigh in favor
of the jury’s finding that the scissors constituted a deadly weapon.
5. Weapon’s Ability to Cause Serious Bodily Injury or Death
Appellant admits that “the scissors were used in such a manner as to constitute
a ‘deadly weapon’ in his later assault against Oneita Poor.” Accordingly, even if we
were to accept Appellant’s argument that we should isolate our evaluation of the
evidence to only the time of the alleged assault against Caldwell, how these same
scissors were used on the same night by the same assailant under the facts of the
case,2 including the assault upon Poor, is relevant to the issue of “[t]he weapon’s
ability to inflict serious bodily injury or death” upon Caldwell. See Babcock, 501
S.W.3d at 655 (factor number four). This is “more than a hypothetical capability of
causing death or serious bodily injury.” Johnston v. State, 115 S.W.3d 761, 764
2
Or “criminal episode.” See PENAL§ 3.01(1)
8
(Tex. App.—Austin 2003), aff’d, 145 S.W.3d 215, 225 (Tex. Crim. App. 2004).
Poor sustained extensive injuries that required surgery and stitches because of the
manner in which Appellant used the scissors against her. Eliana Villegas, a
registered nurse at Midland Memorial Hospital, confirmed that Poor’s life was
“absolutely” in danger from the injuries she sustained from Appellant’s use of the
scissors. The scissors Appellant used were capable of causing serious bodily injury
or death, regardless of to whom his assault was directed.
6. Manner in Which Appellant Used the Weapon
As stated above, Appellant held the scissors to Caldwell’s throat while
threatening her and Poor. Appellant hit Caldwell in the head with one of the sharp
ends of the scissors, creating a puncture wound on her cheekbone. Appellant
additionally destroyed Caldwell’s cell phone by stabbing it repeatedly with sufficient
force to cause the cell phone to separate from its case. The manner in which
Appellant used the scissors to threaten and injure Caldwell is consistent with the
jury’s finding that the scissors constituted a deadly weapon.
7. Testimony that the Victim Feared Serious Bodily Injury or
Death
Caldwell testified that, during the incident, she thought, “I’m going to die. I
thought all three of us were going to die that night. Because I didn’t see any way of
any of us getting out of that house alive.” Poor additionally testified that she “just
wanted to get out of there alive” and that she “didn’t know if any of [them] were.”
The testimony specifying that Caldwell feared serious bodily injury or death
supports the jury’s deadly weapon finding.
Considering the totality of the above factors, the jury had sufficient evidence
from which it could properly find that the scissors constituted a deadly weapon.
Even in an isolated review of Appellant’s acts against Caldwell, the record is clear
that the scissors constituted a deadly weapon because (1) the scissors, in the manner
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in which Appellant used or intended to use them, were capable of causing serious
bodily injury or death, and (2) Appellant used and exhibited such scissors during the
commission of his assault against Caldwell. See PENAL §§ 1.07(a)(17)(B);
22.02(a)(2); McCain, 22 S.W.3d at 502.
Moreover, the trial court’s charge included the lesser-included offense of
assault causing bodily injury against Caldwell. The jury, however, found Appellant
guilty of the greater offense of aggravated assault—an assault aggravated by
Appellant’s use or exhibition of the scissors, a deadly weapon, against her. Viewing
the evidence in the light most favorable to the verdict, there was sufficient evidence
upon which a rational trier of fact could have found the essential elements of
aggravated assault against Caldwell beyond a reasonable doubt.3 See McCain, 22
S.W.3d at 503; Johnson, 509 S.W.3d at 324; Dominique v. State, 598 S.W.2d 285,
286 (Tex. Crim. App. [Panel Op.] 1980) (suture scissors held to victim’s neck,
threats, and slashing motions sufficient to sustain deadly weapon finding); Green v.
State, 705 S.W.2d 403, 404 (Tex. App.—Fort Worth 1986, no pet.) (citing
Dominique, 598 S.W.2d at 286) (scissors to victim’s throat accompanied by threat
sufficient). We overrule Appellant’s first issue.
II. Erroneous Inclusion of Attorney’s Fees in the Costs Assessed Against
Appellant
In Appellant’s second issue, he asserts that the trial court improperly assessed
court-appointed attorney’s fees against Appellant, an indigent individual. The State
agrees. As a result, both parties request that we modify the judgment to delete the
court-appointed attorney’s fees assessed in this cause against Appellant.
3
Appellant does not challenge the sufficiency of the evidence supporting the remaining elements
of the aggravated assault against Caldwell.
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A. Applicable Law
We review an assessment of court costs to determine if there is a basis for the
cost, not to determine if there was sufficient evidence offered at trial to prove each
cost. Smith v. State, 631 S.W.3d 484, 500–01 (Tex. App.—Eastland 2021, no pet.)
(citing Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)). An indigent
defendant cannot be taxed the cost of his court-appointed attorney unless the trial
court finds that the defendant has the financial resources to repay those costs in
whole or in part. Id. at 501 (citing Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.
App. 2010)); see TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2022). A
defendant’s financial resources and ability to pay are explicit elements that the trial
court must consider in its determination of whether to order the reimbursement of
such costs and fees. Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013).
A defendant who has been determined by the trial court to be indigent is presumed
to remain indigent for the remainder of the proceedings in the case unless a material
change in the defendant’s financial resources is found to have occurred. CRIM. PROC.
art. 26.04(p); Cates, 402 S.W.3d at 251.
B. Analysis
Here, trial counsel was appointed to represent Appellant throughout the
proceedings because the trial court determined that Appellant was indigent. In his
motion to withdraw and have appellate counsel appointed, Appellant’s court-
appointed trial counsel explained that Appellant “does not have the funds to hire an
attorney” and “will not have the funds to hire an attorney” for the appeal.
Furthermore, on January 12, 2022, the district clerk certified that Appellant could
not afford the cost of a transcript of the clerk’s record and confirmed that it would
be provided at no cost to him.
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Because there is nothing in the record to indicate that (1) Appellant is no
longer indigent or that (2) the trial court made a subsequent determination that
Appellant’s circumstances had materially changed or that he had the financial
resources or ability to pay the court-appointed attorney’s fees that were assessed
against him, we hold that these costs were improperly assessed. See Cates, 402
S.W.3d at 252; Smith, 631 S.W.3d at 501. Accordingly, we modify the trial court’s
judgments to clarify that “all court costs, fines, fees, assessments and restitution”
does not include court-appointed attorney’s fees, and the district clerk’s amended
bill of costs to delete the court-appointed attorney’s fees in the amount of $13,510
that were assessed against Appellant.
This Court’s Ruling
As modified, we affirm the judgments of the trial court.
W. BRUCE WILLIAMS
JUSTICE
December 1, 2022
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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