Marshall Tyrone Odom v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00455-CR
MARSHALL TYRONE ODOM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NO. 1352853D
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MEMORANDUM OPINION1
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A jury convicted Appellant Marshall Tyrone Odom of aggravated assault
with a deadly weapon, to wit: a knife, and the trial court assessed his punishment
at twenty years’ confinement. In two issues, Appellant asserts that the evidence
is insufficient to support the deadly weapon finding and that the trial court abused
its discretion by excluding evidence. We affirm.
1
See Tex. R. App. P. 47.4.
The Indictment
In the indictment, the State alleged that Appellant intentionally or knowingly
caused bodily injury to the complainant (Pamela) by cutting her with a knife, by
hitting her face with his hand, or by squeezing her neck with his hand, and that
Appellant used or exhibited a deadly weapon during the commission of the
assault, to-wit: a knife, that in the manner of its use or intended use was capable
of causing death or serious bodily injury. The indictment also contained a deadly
weapon notice in which the State alleged that a deadly weapon, to-wit: a knife—
that in its manner of use or intended use was capable of causing death or serious
bodily injury—was used or exhibited during the commission of the felony offense
set out earlier in the indictment, and that Appellant used or exhibited the deadly
weapon.
The Evidence2
Pamela testified that she moved in with Appellant to avoid an abusive
relationship with another man. One day when she was returning home, she saw
another woman, Jocelyn, running out of Appellant’s house and found Appellant
wearing just boxers, which made her think that Appellant and Jocelyn were
having a relationship. Pamela asked Appellant about Jocelyn. At that point in
her testimony, Pamela said, “Something ticked him off. I don’t know what it was.
Something just ticked him off.” According to Pamela, Appellant responded by
2
Because Appellant contests only the deadly weapon finding, we have
simplified the facts considerably.
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accusing Pamela of being with someone else. Appellant started pulling on her
clothes, punching her in the chest, striking her face with the back of his hand,
and choking her. Pamela testified that she eventually escaped through the front
door, but she said Appellant grabbed her by the back of her shirt and tried to pull
her back into the house. Pamela grabbed a bush in front of the house and held
on “for dear life.” Pamela said Appellant eventually went back into the house,
came back out with a knife, and put the knife to her neck. She described what
happened next:
And I kept saying, “Tyrone, I can’t breath[e], I can’t breath[e], I can’t
breath[e], I can’t breath[e”]. And at that point in time, he was, like,
[“J]ust come back in the house, just come back in the house. I’m not
going to do anything to you. Just come back in the house.[”]
And I’m like, [“]I don’t want to go back into the house. I don’t want to
go back into the house.[”] And he started cutting my neck with the
knife. And then I could feel—I could feel the skin was splitting. And
I was like, he’s cutting my neck with the knife. That’s when I started
screaming even more.
The State admitted into evidence a picture showing a cut on Pamela’s throat.
Pamela also cut her hand when she tried to pull the knife away from her throat,
which required six stitches. She explained that she grabbed the knife because
she could not breathe. Pamela agreed that when Appellant put the knife to her
throat, she was in fear that Appellant could have caused her serious bodily injury
or death.
Neighbors came over to help Pamela. One of the neighbors testified and
described Pamela holding on to a bush, Appellant pulling her in an effort to get
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her into the house, and Appellant holding a knife to Pamela’s neck. After the
neighbor persuaded Appellant to release Pamela, Appellant threw the knife back
into his house.
Appellant testified that Pamela was upset with him because he had just
had sex with Jocelyn before she arrived, but he described their conversation as
friendly. Appellant stated that at some point someone hit him on the head and
then on his toe. It was dark inside the house, so Appellant could not see, and
Appellant acknowledged being disoriented from the blow to the back of his head.
Although Appellant did not think Pamela was the person who hit him, he was not
sure; he thought someone else was in the house. He said he saw Pamela run
out of the house, so he grabbed a knife and followed her outside, where he saw
a number of people had gathered in his yard. When asked if he grabbed the
knife to defend himself, Appellant answered, “Sir, it was too many people in my
front yard that I did not know, you see.” Appellant acknowledged trying to get
Pamela back in the house and explained, “I’m thinking . . . I’m going to help her.
That’s what I’m really thinking, you know. Because I don’t know these people. I
don’t know these people. And Pam was—Pam was who I know. So I . . . figure I
need to get her back in the house with me.” Appellant was confused by
Pamela’s reaction to his efforts to help her. Appellant said that a neighbor from
across the street was walking towards him telling him to let her go and
threatening him, but he had no idea why Pamela was screaming or why his
neighbor was threatening him. Appellant said he then went back inside his
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house. Appellant denied putting the knife to Pamela’s neck and denied cutting
her neck. Appellant admitted getting in fights with three other women and
admitted pleading guilty to assaulting one of the other women in 2005.
The Deadly Weapon Finding
In Appellant’s first issue, he argues that the evidence is insufficient to show
the knife was a deadly weapon. He argues that a knife is not a deadly weapon
per se but may qualify as such through the manner of its use, its size and shape,
and its capacity to produce death or serious bodily injury. See Tex. Penal Code
Ann. § 1.07(a)(17)(B) (West Supp. 2015); Thomas v. State, 821 S.W.2d 616, 620
(Tex. Crim. App. 1991); Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App.
[Panel Op.] 1978). “[A]n object is a deadly weapon if the actor intends a use of
the object 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). Appellant
contends there was no serious bodily injury, that 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,”
and, therefore, he maintains that the jury could not have concluded that the knife
caused serious bodily injury. Appellant further argues that the State failed to
prove an intent to cause serious bodily injury and points to the fact that Appellant
said, “I’m not going to do anything to you.” Appellant states that his goal was to
get Pamela back into the house. Appellant also stresses that he threw the knife
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back into the house. Appellant concludes there was insufficient evidence to
show his intent was to cause serious bodily injury with the knife.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v. State, 457 S.W.3d 446,
448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). The trier of fact is the
sole judge of the weight and credibility of the evidence. See Tex. Code Crim.
Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.
Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188,
192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary
inferences are reasonable based upon the cumulative force of the evidence
when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at
448. We must presume that the factfinder resolved any conflicting inferences in
favor of the verdict and defer to that resolution. Id. at 448–49.
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Texas courts have repeatedly held that a deadly weapon finding will be
sustained when a knife is targeted at a victim’s neck or throat. See Banargent v.
State, 228 S.W.3d 393, 399 (Tex. App.—Houston [14th Dist] 2007, pet. ref’d)
(holding that knife was a deadly weapon when used to inflict wounds to neck);
Revell v. State, 885 S.W.2d 206, 208, 210 (Tex. App.—Dallas 1994, pet. ref’d)
(holding that knife was a deadly weapon when assailant held knife to victim’s
throat and when victim cut hand and finger while pulling assailant’s hand away,
requiring stitches); see also Azouz v.State, No. 04-09-00759-CR, 2010 WL
5141360, at *3 (Tex. App.—San Antonio Dec. 15, 2010, pet. ref’d) (mem. op., not
designated for publication) (holding that “a reasonable jury could conclude that
Azouz used the tool to attack Hafsi in the face and head and that when so used,
with the blade extended, the tool was capable of causing serious bodily injury”);
Pena v. State, No. 08-09-00095-CR, 2010 WL 4523762, at *6–7 (Tex. App.—El
Paso Nov. 10, 2010, no pet.) (not designated for publication) (rejecting argument
that absence of a neck wound rendered evidence insufficient); Denson v. State,
No. 02-09-00001-CR, 2009 WL 4757276, at *1, 3–4 (Tex. App.—Fort Worth Dec.
10, 2009, no pet.) (mem. op, not designated for publication) (holding knife was
deadly weapon when defendant motioned it towards victim’s throat). Pamela and
the neighbor testified that Appellant held the knife to her throat. Pamela had a
bleeding cut on her throat. The jury was within its discretion to believe her
testimony and this evidence. Appellant denied putting the knife to her throat and
denied any intent to hurt Pamela. The jury was within its discretion not to believe
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Appellant. Based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict and deferring to the factfinders’ resolution of
the conflicting evidence in favor of the verdict, we hold that a rational trier of fact
could have made the deadly weapon finding beyond a reasonable doubt. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule Appellant’s first issue.
Excluded Testimony
In Appellant’s second issue, he argues that the trial court abused its
discretion and committed reversible error when it excluded evidence that
Appellant proffered. Specifically, Appellant wanted Pamela to testify regarding
how she had called the police on January 11, 2012, when another man, Matthew,
abused her physically after accusing her of cheating on him. Appellant claimed
that he “sought to show that Pamela was a biased witness and had a motive to
testify falsely because of an animus toward boyfriends who claimed that she
cheated.” See Tex. R. Evid. 613(b); Billodeau v. State, 277 S.W.3d 34, 39–40
(Tex. Crim. App. 2009) (“Rule of Evidence 608(b) provides that a witness’s
credibility may not be impeached with specific instances of the witness’s conduct
other than a criminal conviction as provided in Rule 609(a). . . . Rule of Evidence
613(b), which creates an exception to rule 608(b), provides that a witness may
be impeached by using extrinsic evidence to show bias or interest.”); Lagrone v.
State, 942 S.W.2d 602, 613 (Tex. Crim. App.) (stating that specific instances of
conduct prohibited except to expose bias, correct any affirmative
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misrepresentations made on direct examination, or show lack of capacity), cert.
denied, 522 U.S. 917 (1997).
We disagree with Appellant for two reasons. First, Appellant’s proffered
testimony showed that Matthew accused Pamela of cheating on him, but it did
not show that she responded by falsely accusing him of physically abusing her.
The proffered testimony did not show a bias or interest to testify falsely against
Appellant. See Tex. R. Evid. 613(b)(1). Second, even assuming error, any error
was harmless. Pamela testified without objection that she had previously lived
with another man who was very abusive, and there was one instance where she
called the police after he had assaulted her. That testimony differed from the
proffered testimony only in that it did not disclose what caused Matthew’s anger.
Finally, Appellant’s version of the events suggested that the dispute had nothing
to do with any concerns over Pamela’s alleged infidelity. Even assuming that the
trial court erred, we hold any error was harmless. See Preston v. State, 481
S.W.2d 408, 409 (Tex. Crim. App. 1972) (“This Court has consistently held
reversal is not required by exclusion of evidence where same testimony was later
admitted without objection.”); Montgomery v. State, 383 S.W.3d 722, 727 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (“Although the trial court may have
initially excluded this evidence, the later admission renders harmless any
possible error.”). We overrule Appellant’s second issue.
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Conclusion
Having overruled Appellant’s issues, we affirm the trial court’s judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 4, 2016
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