Brian Lee Turner v. State

Opinion issued November 15, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00563-CR
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BRIAN LEE TURNER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Burleson County, Texas
Trial Court Case No. 14,833*
MEMORANDUM OPINION
Appellant Brian Lee Turner pleaded not guilty to aggravated assault with a
deadly weapon. After a bench trial, the trial court found Turner guilty and sentenced
*
Pursuant to its docket equalization authority, the Supreme Court of Texas
transferred this appeal from the Court of Appeals for the Tenth District of Texas to
this Court. See Misc. Docket No. 17–9066, Transfer of Cases from Courts of
Appeals (Tex. June 20, 2017); see also TEX. GOV’T CODE § 73.001 (authorizing
transfer of cases). We are unaware of any conflict between precedent of that court
and that of this court on any relevant issue. See TEX. R. APP. P. 41.3.
him to seven years’ imprisonment. On appeal, Turner asserts that the evidence was
insufficient to support his conviction. It was not. We therefore affirm.
Background
Turner lived with his girlfriend, Lori Griffin, in a camper located on his
mother’s property. Both Turner and Griffin used methamphetamine and planned to
go to rehabilitation treatment on April 1, 2015. The night before they were scheduled
to go to treatment, Turner expressed a desire to postpone treatment, and an argument
ensued. Turner began hitting Griffin while yelling at her. Turner’s mother, Linda
Turner, heard the argument from the main house and came to investigate. Turner
said that he was going to kill Griffin, so Turner’s mother allowed Griffin to stay in
her house (away from Turner) overnight.
Early the next morning, April 1, 2015, Turner sent a text message to Griffin
requesting a towel, washcloth, soap, and methamphetamine. He said that he would
like to come to the main house to get these items. Griffin told him not to come; she
instead agreed to leave the items on the hood of her car, located halfway between
the camper and the main house. She did not leave methamphetamine for Turner
because she believed they were going to rehabilitation treatment that day. When
Turner realized he did not receive methamphetamine, he became angry and started
banging around the camper. Griffin testified that it sounded like he was taking a
hatchet or hammer to the walls of the camper.
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At Turner’s mother’s request, Griffin reluctantly went to the camper to check
on Turner. Turner’s mother agreed to stay on the porch while Griffin did this, but
she instead left and took Turner’s child to school. When Griffin looked in the open
doorway of the camper, she saw Turner on his knees holding a pocket knife to his
throat. Turner demanded that Griffin admit she was having an affair or he would kill
himself. Griffin did not answer his question and turned away.
As Griffin turned away, she saw Turner stand and “sling” the pocket knife at
her. She testified that as she turned away from Turner, all she could think was, “I’m
going to feel [the knife] in my back.” She had a broken screw in her back and was
not sure she would be able to run fast enough to escape. She left because she “wasn’t
waiting around to find out what he was going to do; whether he was going to throw
the knife, whether he was going to come beat the [cr-p] out of me, try to kill me like
he had promised the night before.”
Griffin ran from the camper to Turner’s mother’s house, locked the door, and
called 911. Griffin told the 911 operator that she wanted a welfare check on Turner.
After Turner started banging on the doors and windows of the main house and
threatening to kill her, Griffin made a second call to 911, in which she expressed
fear that Turner was going to kill her.
When the police arrived, Turner was banging on the door to his mother’s
house. The investigator at the scene recovered the pocket knife on the floor next to
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the doorway in the camper. Turner was taken into custody. In an interview with
police, Turner identified the knife as his and admitted that he had threatened to take
his own life.
At trial, Griffin testified that she was in an abusive relationship with Turner
and that she feared for her life “multiple times a day” for at least five months before
the knife incident. She explained that Turner once made her write a letter to a
constable confirming his delusions and stating that people in the community were
“out to get him.” She wrote the letter, even though it was untrue, because she
believed Turner would beat her if she did not write it. She testified that when she
occasionally went places without Turner, Turner timed her and imposed
consequences if she did not return in the allotted time.
When asked why she requested a welfare check in the first 911 call, Griffin
said that she wanted someone to come and she was afraid no one would help her
because she had asked for help in the past and had not received it. She also worried
that Turner would retaliate if he heard her say something negative about him on the
phone. She explained that Turner’s arrest did not alleviate her fears because he had
been arrested before and then released. She worried that once he was released again,
he could “come after” her and kill her. When asked why she told several people,
including Turner, that she was not afraid, she stated that she lied because she was
afraid Turner would get out of jail and retaliate. She thought that if he believed she
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was helping him, he would be less likely to “come after” her when he got out of jail.
And she explained that the day she learned that he would be getting out of jail, she
packed her belongings and lived in her truck for a week.
The State presented an expert witness on domestic violence. The expert
testified that leaving an abuser places a victim of domestic violence in heightened
danger. Therefore, the expert often coaches victims to prepare for the abuse to
escalate when the relationship ends. For safety’s sake, she routinely advises victims
to continue telling the abuser they love them and following old routines.
In addition, Investigator Andrea Murray, the investigating officer, testified.
Investigator Murray said that Griffin looked scared and spoke in a whisper when
Murray interviewed her on the day of the incident. Murray observed that Griffin had
a black eye and a wrist brace. Griffin told her that the injuries were from other
altercations with Turner. Investigator Murray testified that she found the pocket
knife in the camper, just inside the doorway, next to the wall. The knife blade was
open. She explained that both Turner and Griffin described the knife that she found.
The knife was admitted into evidence.
Turner identified the knife as belonging to him. He also admitted that he made
threats to his life with the knife.
The defense, in turn, presented witnesses and recorded phone calls between
Turner and Griffin. One of the defense’s witnesses recalled Griffin saying that
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Turner did not throw the knife at her. In the recordings of the phone calls between
Turner and Griffin while Turner was in jail, Griffin can be heard professing her love
for him and denying that Turner threw the knife at her. The testimony and recordings
also indicated that Griffin told several people that she was not threatened by Turner
and was upset that Turner was going to “get in trouble.”
Following the presentation of evidence, the trial court found Turner guilty of
aggravated assault with a deadly weapon and sentenced him to seven years’
imprisonment. Turner appealed.
Sufficiency of the Evidence
In his sole issue, Turner asserts there was legally insufficient evidence to
support his conviction. Specifically, he argues that there was insufficient evidence
to establish that the knife he used was a deadly weapon or that he threatened another
with imminent bodily harm. We disagree.
A. Standard of Review
We review the sufficiency of the evidence in the light most favorable to the
prosecution and then determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Villa v. State, 514
S.W.3d 227, 232 (Tex. Crim. App. 2017); see also Robinson v. State, 466 S.W.3d
166, 172 (Tex. Crim. App. 2015) (stating that the standard applies both to jury and
bench trials). This standard of review requires the appellate court to defer to the “trier
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of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Id. (citing Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)). With respect to testimony
of witnesses, the factfinder is the sole judge of the testimony’s credibility and
weight, and when the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the verdict, and we defer to that
determination. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789). The weight given to contradictory
testimony is at the discretion of the trier of fact who evaluates demeanor and
credibility. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997).
In a sufficiency inquiry, direct and circumstantial evidence is equally
probative. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Deference to
the trier of fact extends to the inferences drawn from the evidence as long as the
inferences are reasonable ones supported by the evidence and are not mere
speculation. Id. Not every fact presented must directly show that the defendant is
guilty, so long as the cumulative force of the evidence is sufficient to support a
finding of guilt. Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015); see
also Villa, 514 S.W.3d at 232 (“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.”).
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B. Applicable Law
A person commits an assault if the person “intentionally or knowingly
threatens another with imminent bodily injury.” TEX. PENAL CODE § 22.01(a)(2). “A
person acts intentionally, or with intent, with respect to the nature of his conduct or
to a result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result.” Id. § 6.03(a). “A person acts knowingly, or with
knowledge, with respect to the nature of his conduct or to circumstances surrounding
his conduct when he is aware of the nature of his conduct or that the circumstances
exist.” Id. § 6.03(b). And “[a] person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably
certain to cause the result.” Id. Bodily injury is defined as “physical pain, illness, or
any impairment of physical condition.” Id. § 1.07(a)(8).
The offense is enhanced to aggravated assault, a second-degree felony, if the
person “uses or exhibits a deadly weapon during the commission of the assault.” Id.
§ 22.02(a)(2), (b). A deadly weapon is “anything 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).
C. Analysis
With the standard of review and the elements of the crime in mind, we turn to
the evidentiary record before us. Sufficient evidence supported the conviction. We
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reject Turner’s contentions that the evidence did not support the conclusions that
(1) he used a deadly weapon during the commission of the assault or (2) he
intentionally or knowingly threatened Griffin with imminent bodily injury. We
address each of Turner’s arguments in turn.
1. Deadly weapon
Turner argues that insufficient evidence supports the trial court’s
determination that he used or exhibited a deadly weapon during the commission of
the offense See TEX. PENAL CODE § 22.02 (a)(2). We disagree.
A knife is not per se a deadly weapon. See, e.g., Alvarez v. State, 556 S.W.2d
612, 614 (Tex. Crim. App. [Panel Op.] 1978); Hicks v. State, 723 S.W.2d 238, 240
(Tex. App.—Houston [1st Dist.] 1986, no writ.). But it can become one when “the
manner of its use or intended use is capable of causing death or serious bodily
injury.” TEX. PENAL CODE § 1.07(a)(17)(B); see also Johnson v. State, 509 S.W.3d
320, 323 (Tex. Crim. App. 2017) (not all knives are designed for the purpose of
inflicting serious bodily injury or death, so “the evidence is sufficient to support the
finding in this case only if the jury could have rationally found that [the defendant]
used the knife in such a way, or intended to use the knife in such a way, that it was
capable of causing serious bodily injury or death.”).
To determine whether the knife here was capable of being a deadly weapon
in its manner or intended use, we consider the size, shape, and sharpness of the knife,
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as well as its capacity to cause death or serious bodily injury, defendant’s proximity
to the victim, the manner in which the defendant used the knife, and the defendant’s
words or other threatening actions. See Johnson, 509 S.W.3d at 323. “These,
however, are just factors used to guide a court’s sufficiency analysis; they are not
inexorable commands.” Id. A knife does not need to inflict wounds nor is expert
testimony required before it can be determined to be a deadly weapon. Davidson v.
State, 602 S.W.2d 272, 273 (Tex. Crim. App. [Panel Op.] 1980).
Here, the knife was admitted into evidence. See Robertson v. State, 163
S.W.3d 730, 734 (Tex. Crim. App. 2005) (stating when knife is admitted into
evidence, the factfinder has “the opportunity to examine the weapon and ascertain
for itself whether the weapon had physical characteristics that revealed its deadly
nature.”). We presume the court observed the knife and its qualities, such as its size,
shape, and sharpness. See id. Investigator Murray testified that the blade was about
two inches long. See Johnson, 509 S.W.3d at 324 (“The video shows that [the
defendant] was holding the knife by its handle and that just the blade of the knife
appears to be a couple of inches long. Based on this, the jury could have reasonably
inferred that the knife was large enough and long enough such that it was capable of
causing serious bodily injury or death.”); Hicks, 723 S.W.2d at 239–40 (knife with
blade length of two and one-fourth inches was a deadly weapon). The trial court was
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free to evaluate the knife’s characteristics to determine whether it was capable of
causing death or serious bodily injury.
The trial court also had before it evidence concerning Turner’s words and
actions, the manner in which he used the knife, and his proximity to Griffin. Griffin
testified that she encountered Turner with the knife to his throat. When Griffin
opened the door, Turner was on his knees near the doorway. She explained that he
threatened to kill himself if she did not admit to having an affair. When she turned
to leave, he threw the knife in her direction. Griffin ran away and believed she would
feel the knife in her back. Investigator Murray’s testimony places the knife, blade-
open, near the entrance to the camper. Finally, Turner identified the knife and
admitted that he initially intended to use it to kill himself.
Based on the characteristics of the knife, Griffin’s testimony about Turner’s
words and actions, Turner’s proximity to Griffin, and Turner’s admission that he
intended to use the knife to kill himself, the trial court rationally could have found
that the knife was, in the manner of its use or intended use, capable of causing death
or serious injury.
2. Threat
We likewise hold that the trial court, as factfinder, could have found beyond
a reasonable doubt that Turner intentionally or knowingly threatened Griffin with
imminent bodily injury. The factfinder “may infer intent from any facts which tend
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to prove its existence, including the acts, words, and conduct” of the defendant. Hart
v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Dobbins v. State, 228 S.W.3d
761, 765 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d).
Here, there was sufficient evidence for the factfinder to conclude that Turner’s
actions of displaying a knife, threatening to use it, and throwing the knife at Griffin
were reasonably certain to place Griffin in fear or created an unacceptable risk that
she would be placed in fear (and was placed in fear). See, e.g., Keene v. State, No.
10-15-00389-CR, 2017 WL 1750073 at *2 (Tex. App.—Waco May 3, 2017, pet.
ref’d) (mem. op., not designated for publication) (citing Olivas v. State, 203 S.W.3d
341, 350 (Tex. Crim. App. 2006)). Again, when Griffin opened the door to the
camper, Turner was on his knees with a knife to his throat. When Griffin turned to
leave, Turner “came up off his knees and slung the knife at [her].” She ran to the
main house, locked the door, and called 911. He followed her to the house.
The trial court heard testimony from Griffin that she was afraid—and
reasonably so. She testified that, as she ran away, she was afraid she was going to
feel the knife in her back. The record is also replete with evidence that Turner
threatened Griffin on several occasions leading up to the incident. The court heard
testimony that he routinely placed her in fear of her life. At the time of the incident,
she had several other injuries from altercations with him. The night before the
incident, he threatened to kill her (and Turner’s mother therefore allowed Griffin to
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sleep in her home). And immediately before the incident, when Griffin did not give
Turner methamphetamine, he became irate and started “banging around his
house. . . . [I]t sounded like he was taking a hatchet or a hammer to the walls in
there.” See Olivas, 203 S.W.3d at 349 n.41 (Previous incidents with appellant
support logical inference that victim was in more cautious state of mind with
heightened awareness and was more likely to both perceive threat made by appellant
and perceive his acts as constituting threat.).
Turner argues that Griffin later made contrary statements, such as that he did
not throw the knife at her and that he was not trying to hurt her. But it is the duty of
the factfinder to weigh all evidence and testimony presented and assess credibility.
See, e.g., Thomas, 444 S.W.3d at 8. In addition to Griffin’s testimony at trial, the
court (as factfinder) heard the 911 call, Griffin’s interview with the responding
officer, and recorded conversations between the Griffin and Turner while he was
still in jail. The court also heard Griffin’s explanation that she told others that Turner
did not threaten her because she did not want to make the situation worse. A
domestic violence expert provided an explanation for her behavior and statements.
The court was free to examine all of the evidence, including the knife and its
location.
We presume that the trial court resolved the conflicting testimony in favor of
the verdict, and we defer to that determination. Id. This record contains sufficient
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evidence that Turner intentionally or knowingly threatened Griffin with imminent
bodily injury. See, e.g., Schmidt v. State, No. 10-07-00003-CR, 2008 WL 2454084,
at *4 (Tex. App.—Waco June 18, 2008, pet ref’d) (mem. op., not designated for
publication) (“[V]iewed in the light most favorable to the verdict, the evidence is
that Schmidt charged at Vercher brandishing a knife and a flashlight in a threatening
manner. This constitutes legally sufficient evidence to prove that Schmidt threatened
Vercher with imminent bodily injury.”); Keene, 2017 WL 1750073 at *2.
Conclusion
We affirm the judgment of the trial court.
Jennifer Caughey
Justice
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
Do not publish. TEX. R. APP. P. 47.2(b).
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