Joseph Metcalfe v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-19-00389-CR
JOSEPH METCALFE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 45194-CR
MEMORANDUM OPINION
Appellant, Joseph Metcalfe, was convicted of two counts of aggravated assault
with a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2). In one issue, Metcalfe
challenges the sufficiency of the evidence supporting his convictions. We affirm.
Background
On August 18, 2017, Metcalfe grabbed the buttocks of a shopper at a Walmart store
in Waxahachie, Texas. After the shopper yelled for help, Metcalfe left the store. In
response to the shopper’s yelling, two other Walmart shoppers, Juan Ochoa and Stanley
Robinson, pursued Metcalfe.
Ochoa was ahead of Robinson in the pursuit of Metcalfe into the Walmart parking
lot. Metcalfe told Ochoa to “get away” and that he was “strapped.” Ochoa continued to
pursue Metcalfe. Metcalfe responded by lifting his shirt to show Ochoa something shiny
in his waistband. Based on his experience, Ochoa believed that the shiny object in
Metcalfe’s waistband was a knife. At this point, Ochoa discontinued his pursuit of
Metcalfe because he did not want to get hurt. Ochoa walked back to the Walmart store
and passed Robinson, who was also in pursuit of Metcalfe. Ochoa warned Robinson to
“watch out” and “the guy had a knife.”
Despite this warning, Robinson continued to pursue Metcalfe. Metcalfe turned
around and brandished a knife in one hand and, with his other hand, extended his middle
finger to Robinson. Metcalfe then told Robinson: “You’re threatening me. I’m a
concealed carrier. When I get to my truck, you’re going to get it.” Robinson, believing
that he could be seriously injured, stopped pursuing Metcalfe.
Metcalfe was indicted for two counts of aggravated assault as to Robinson (Count
I) and Ochoa (Count II) by the use or exhibition of a deadly weapon—a knife. After a
jury trial, Metcalfe was convicted of the charged offenses, and the jury assessed his
punishment at eight years’ incarceration for Count I and two years’ incarceration for
Count II. The trial court certified Metcalfe’s right of appeal.
Metcalfe v. State Page 2
Analysis
In his sole issue on appeal, Metcalfe contends that the evidence is insufficient to
support his convictions for aggravated assault against Robinson and Ochoa. We
disagree.
STANDARD OF REVIEW
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the
verdict, 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, 61 L. Ed. 2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to defer “to
the responsibility of the trier of fact fairly 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. We may not re-weigh
the evidence or substitute our judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
a sufficiency review must not engage in a “divide and conquer” strategy
but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of facts or
evidence, juries are permitted to draw any reasonable inferences from the
facts so long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson,
443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting inferences
from the evidence in favor of the verdict, and we defer to that resolution.
Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because
the jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone may be
sufficient to uphold a conviction so long as the cumulative force of all the
Metcalfe v. State Page 3
incriminating circumstances is sufficient to support the conviction. Ramsey
v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at
13.
We measure whether the evidence presented at trial was sufficient to
support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that “accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A person commits aggravated assault if the person commits assault and the person
“uses or exhibits a deadly weapon during the commission of the assault.” TEX. PENAL
CODE ANN. § 22.02(a)(2). An assault occurs when a person “intentionally or knowingly
threatens another with imminent bodily injury . . . .” Id. § 22.01(a)(2). Metcalfe takes issue
with whether Robinson or Ochoa were threatened with imminent bodily injury and
whether the knife allegedly used constituted a deadly weapon.
EVIDENCE OF AN IMMINENT THREAT
We first address Metcalfe’s contention that there is not sufficient evidence that he
threatened Robinson and Ochoa with “imminent” bodily injury. Although the Texas
Penal Code does not define “imminent,” the Court of Criminal Appeals has defined the
term to mean “ready to take place, near at hand, impending, hanging threateningly over
Metcalfe v. State Page 4
one’s head, menacingly near.” Garcia v. State, 367 S.W.3d 683, 689 (Tex. Crim. App. 2012);
Devine, 786 S.W.2d at 270. Thus, “imminent” bodily injury requires a threat of present,
rather than future harm. Devine, 786 S.W.2d at 270.
In the instant case, Ochoa testified that, while he pursued Metcalfe from
approximately six feet behind, Metcalfe turned around and threatened that he was
“strapped.” Metcalfe then showed Ochoa a shiny weapon that Ochoa believed to be a
knife. Ochoa stopped pursuing Metcalfe at this point because he did not want to get hurt.
Furthermore, Robinson testified that, during the pursuit, Metcalfe brandished a
knife, flipped off Robinson, and stated that he is a “concealed carrier. When I get to my
truck, you’re going to get it.” Robinson believed that he could be seriously injured and,
thus, stopped pursuing Metcalfe.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude
that the evidence is sufficient to support the jury’s determination that Metcalfe threatened
Robinson and Ochoa with imminent bodily injury. See TEX. PENAL CODE ANN. §
22.02(a)(2); Garcia, 367 S.W.3d at 689; Devine, 786 S.W.2d at 270; see also Jackson, 443 U.S.
at 318-19, 99 S. Ct. 2788-89; Zuniga, 551 S.W.3d at 732-33.
A KNIFE AS A DEADLY WEAPON
With respect to Metcalfe’s second contention regarding the deadly-weapon
element, we note that a “knife” is defined as “any bladed hand instrument that is capable
of inflicting serious bodily injury or death by cutting or stabbing a person with the
Metcalfe v. State Page 5
instrument.” TEX. PENAL CODE ANN. § 46.01(7). The Court of Criminal Appeals has held
that a knife is not a per se deadly weapon. See Robertson v. State, 163 S.W.3d 730, 732 (Tex.
Crim. App. 2005); see also Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991).
Generally describing an object “as a ‘knife’ does not by itself establish the object as a
deadly weapon by ‘design’ because many types of knives have an obvious other purpose
(e.g., butcher knives, kitchen knives, utility knives, straight razors, and eating utensils).”
Robertson, 163 S.W.3d at 732. Other types of knives, such as “[b]ayonets, scimitars, and
various kinds of swords,” are deadly by design “because they are designed to cause
death.” Id.Whether a particular knife is a deadly weapon by design, a deadly weapon by
usage, or not a deadly weapon at all depends on the evidence. Thomas, 821 S.W.2d at 620;
see Brown v. State, 716 S.W.2d 939, 947 (Tex. Crim. App. 1986). When determining the
deadliness of a weapon, the jury may consider all of the facts of a case. Blain v. State, 647
S.W.2d 293, 294 (Tex. Crim. App. 1983). In our review of the evidence, we consider the
following factors: (1) the size, shape, and sharpness of the blade; (2) the manner of its use
or intended use; (3) its capacity to produce death or serious bodily injury; (4) the physical
proximity of the parties; (5) the nature of any wounds inflicted; and (6) any words spoken
by the assailant, such as threats. Brown, 716 S.W.2d at 946-47; see Johnson v. State, 509
S.W.3d 320, 323 (Tex. Crim. App. 2017). “These, however, are just factors used to guide
Metcalfe v. State Page 6
a court’s sufficiency analysis; they are not inexorable commands.” Johnson, 509 S.W.3d at
323.
Additionally, the State need not introduce expert testimony to establish the deadly
nature of a knife, although such evidence could be useful. Denham v. State, 574 S.W.2d
129, 131 (Tex. Crim. App. 1978). Moreover, there is also no requirement that the victim
sustain any injury. Ford v. State, 828 S.W.2d 525, 527 (Tex. App.-Houston [14th Dist.] 1992,
pet. ref'd); see Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008) (noting that the
blade need not actually have caused any injuries for it to be considered a deadly weapon).
Here, the State’s evidence demonstrates that Metcalfe threatened that he was
“strapped” with a weapon, told Ochoa to “get away,” and then showed Ochoa what
Ochoa believed to be a knife when the two were approximately six feet apart. Based on
his familiarity with weapons, Ochoa recounted that the knife in Metcalfe’s waistband was
shiny, skinny, and resembled a fish-fillet knife without a point. Ochoa discontinued his
pursuit of Metcalfe at this point because he was scared of “[g]etting hurt or starting a
fight or something because I didn’t know him.”
Robinson testified that Metcalfe brandished a knife and flipped him off when the
two were approximately ten feet apart. Robinson recalled that the knife Metcalfe
brandished was silver in color and about four to five inches long, longer than Metcalfe’s
middle finger. Metcalfe then threatened Robinson by stating that he is “a concealed
carrier. When I get to my truck, you’re going to get it.”
Metcalfe v. State Page 7
As shown above, neither Ochoa nor Robinson testified that the knife Metcalfe used
was sharp. However, even a dull knife can be considered a deadly weapon if the knife is
used in conjunction with “threats and gestures” that cause the complainant to fear serious
bodily injury or death. See Williams v. State, 732 S.W.2d 777, 779 (Tex. App.—Corpus
Christi 1987, no pet.) (concluding that a “butter knife” with a “rounded tip” was a deadly
weapon based on its usage). Furthermore, the evidence demonstrates that Metcalfe was
only six feet from Ochoa and ten feet from Robinson when he showed or brandished the
knife and made threats or menacing gestures, which did not diminish Metcalfe’s
capability of using the knife to cause serious bodily injury or death to Ochoa and
Robinson. See Brown, 716 S.W.2d at 946-47; Hatchett v. State, 930 S.W.2d 844, 848-49 (Tex.
App.—Houston [14th Dist.] 1996, pet. ref’d); see also Alexander v. State, No. 10-10-00279-
CR, 2012 Tex. App. LEXIS 3125, at *9 (Tex. App.—Waco Apr. 18, 2012, pet. ref’d) (mem.
op., not designated for publication) (rejecting an argument that, because the defendant
and the victim were twenty feet apart, the knife used could not be considered a deadly
weapon).
Given the descriptions of the knife by Ochoa and Robinson, as well as the
testimony regarding Metcalfe’s menacing threats and gestures and his use or intended
use of the knife, the jury could have reasonably inferred that Metcalfe used the knife to
threaten to cause serious bodily injury to Ochoa and Robinson had they decided to
continue the pursuit. See Johnson, 509 S.W.3d at 324 (“A jury could have also reasonably
Metcalfe v. State Page 8
inferred from Kimp’s threats, his proximity to Amelia, and the brandishing of the knife,
that the manner in which he used the knife, or intended to use the knife, rendered it
capable of causing serious bodily injury or death.”); see also Billey v. State, 895 S.W.2d 417,
422 (Tex. App.—Amarillo 1995, pet. ref’d) (“[E]vidence is sufficient if a knife is capable
of causing death or serious bodily injury or if it is displayed in a manner conveying an
express or implied threat that serious bodily injury or death will be inflicted if the desire
of the person displaying the knife is not satisfied.”). Therefore, viewing the evidence in
the light most favorable to the jury’s verdict, a rational jury could have found beyond a
reasonable doubt that the knife used by Metcalfe in the commission of these offenses was
a deadly weapon.1 See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Zuniga, 551 S.W.3d
at 732-33; Thomas, 821 S.W.2d at 620; Brown, 716 S.W.2d at 946-47; see also Johnson, 509
S.W.3d at 324. We overrule Metcalfe’s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
1 In arguing that the evidence is insufficient to establish that the knife he used was a deadly
weapon, Metcalfe relies on two decisions from the Court of Criminal Appeals. See Davidson v. State, 602
S.W.2d 272, 274 (Tex. Crim. App. 1980); Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978).
However, both Davidson and Alvarez are distinguishable from the case at bar. In Davidson, although many
of the facts are similar, the evidence established that the length of the blade was two-and-a-half to three
inches, which is approximately half the size of the knife used by Metcalfe. 602 S.W.2d at 274. In Alvarez,
the State did not present any testimony about the size of the knife’s blade. 566 S.W.2d at 614. This is
important because the complainant did not suffer any wounds and the only other evidence the Court of
Criminal Appeals appeared to consider was that the complainant thought the knife was sharp and that he
was in fear of serious bodily injury or death when the knife was brandished. Id. And perhaps more
importantly, the Court of Criminal Appeals held more recently in Johnson that a knife with a blade “a couple
of inches long” was a deadly weapon when brandished at victims while threatening them to “get back.”
Johnson v. State, 509 S.W.3d 320, 324 (Tex. Crim. App. 2017).
Metcalfe v. State Page 9
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed September 29, 2021
Do not publish
[CR25]
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