Steve Cabello v. the State of Texas

NO. 12-22-00152-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
STEVE CABELLO, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
A jury convicted Appellant, Steve Cabello, of aggravated assault with a deadly weapon.
Appellant pleaded “true” to the enhancement allegation in the indictment, which alleged a prior
conviction for murder. The jury assessed Appellant’s punishment at imprisonment for ninety-
nine years. In one issue, Appellant challenges the sufficiency of the evidence to support his
conviction. We affirm.
BACKGROUND
On March 6, 2021, Bruce Collier lived in his home near Red Springs in Smith County.
Collier’s son, Joby, lived in a smaller dwelling on the same property. Joby’s friend, Susan Lee,
recently moved into a spare upstairs bedroom in Joby’s house. Bryan Brown, another of Joby’s
friends, was temporarily staying with Joby. All the residents knew that Lee moved into Joby’s
house to escape an intermittent and “volatile” relationship with Appellant. All concerned
believed that Appellant’s presence meant trouble.
Although Lee did not want to see Appellant, on March 6, 2021, Appellant drove onto the
Collier property to see Lee. From his front porch, Collier saw Appellant arrive and enter Joby’s
house. Suspecting trouble, Collier grabbed his shotgun and headed toward Joby’s house. Joby
intercepted Appellant and told him Lee did not want to see him. Appellant ignored the warning,
and according to Lee, kicked in the door to her room, threw her on the bed, held a knife to her
throat, and told her to give him his money or “Bitch, I’ll kill you.”
At this point, Joby and Collier burst into the room. Moments later, Brown arrived on the
scene and observed Collier pointing his shotgun at Appellant. Brown pulled Appellant off Lee.
Appellant left Joby’s house.
When Smith County Deputy Sheriff Tyrodrick Loftis arrived, Appellant had already left.
Deputy Loftis photographed a cut on Lee’s finger. The knife said to have been used in the
assault was never found.
SUFFICIENCY OF THE EVIDENCE
In his issue on appeal, Appellant contends that the evidence is insufficient to prove that
the knife used in the assault was, in the manner and means of its use and intended use, capable of
causing death or serious bodily injury.
Standard of Review
In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the
constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to
sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 316-17, 99 S. Ct. 2781,
2786-87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency challenge is
whether any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789. The evidence is examined in the
light most favorable to the verdict. Id. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.
Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). This familiar 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. See Jackson, 443 U.S. at 319,
99 S. Ct. at 2789.
Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence. See Dewberry
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v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899.
Instead, we defer to the factfinder’s resolution of conflicting evidence unless the resolution is not
rational. See Brooks, 323 S.W.3d at 899-900. When the record supports conflicting inferences,
we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore
defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor,
and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). The duty of the reviewing court is to ensure that the
evidence presented actually supports a conclusion that the defendant committed the crime
charged. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Applicable Law
A person commits an assault if the person intentionally or knowingly threatens another
with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2) (West Supp. 2022). The
offense becomes aggravated assault if the person uses or exhibits a deadly weapon during the
commission of the assault. Id. § 22.02(a)(2) (West Supp. 2022).
In the indictment, the State charged that Appellant used or exhibited a deadly weapon, a
knife, during the commission of the assault. Therefore, to establish Appellant’s guilt, the State
was required to prove that the knife used was a deadly weapon. The Penal Code defines a
“deadly weapon” as “(A) a firearm or anything manifestly designed, made, or adapted for the
purpose of inflicting death or serious bodily injury; or (B) 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)(A)(B)
(West 2021). A knife is not a deadly weapon under subsection (17)(A), because it is not
“manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily
injury.” McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App. 2000). Thus, in this case, the
State had the burden to prove that the knife Appellant used or exhibited during the offense was,
in the manner of its use or intended use, capable of causing death or serious bodily injury.
Where no actual injuries are sustained, the State must present evidence of other
circumstances to establish that a knife is a deadly weapon. Victor v. State, 874 S.W.2d 748, 751
(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Circumstances the factfinder may consider in
determining whether a knife is a deadly weapon include (1) the physical proximity of the knife to
the victim, (2) any threats or words used by the accused, (3) the size, shape, and sharpness of the
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knife, (4) the potential of the object to inflict death or serious bodily injury, and (5) the manner in
which the accused allegedly used the knife. Brown v. State, 716 S.W.2d 939, 946-47 (Tex.
Crim. App. 1986); In re D.L., 160 S.W.3d 155, 166 (Tex. App.—Tyler 2005, no pet.).
Analysis
Appellant contends that the State failed to establish that his knife was a deadly weapon.
He points out that the knife used was never introduced in evidence. Collier did not see a knife
while he held a shotgun pointed at Appellant. Joby saw Appellant putting away a “little
pocketknife” as he left the bedroom. Brown saw Appellant holding a knife with a two-inch
blade at Lee’s throat. But in Appellant’s view, Brown’s testimony is incredible, because he has a
prior theft conviction and two pending felony charges he was “wanting to get taken care of.”
Lee testified that Appellant put a knife to her throat and threatened to kill her. But Lee was still
serving probation for a tampering with evidence conviction. Although she told the court that she
feared for her life during the assault, she later spent several nights in a motel with Appellant
“trying to work things out.” She spoke to Appellant more than forty times after his incarceration.
She signed an affidavit of non-prosecution. Lee admitted lying under oath in a previous
unrelated case.
Other than Appellant, there were four witnesses present in the bedroom. Appellant
suggests that only two witnesses, Collier and Joby, were subject to no known motive or influence
that might have affected their testimony. But Collier saw no knife. And Joby, in Appellant’s
view, the only credible witness to see a knife, saw only a “little pocketknife,” an insufficient
description to prove the knife constituted a deadly weapon. Appellant insists that Lee’s conduct
after the assault is inconsistent with her trial testimony. That, taken together with her prior
felony conviction, he claims renders her testimony at trial unworthy of belief. He argues
Brown’s prior felony convictions makes his testimony similarly incredible. Appellant argues
that without the testimony of Lee and Brown, the evidence is insufficient to show the knife
employed was a deadly weapon.
However, the jury as trier of fact is the sole judge of the credibility of the witnesses and
the weight to be given their testimony. Meekins v. State, 340 S.W.3d 454, 461 n.32 (Tex. Crim.
App. 2011); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury may accept
or reject all or any part of any witness’s testimony and resolve any conflicts in the evidence.
Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998); Heiselbetz v. State, 906 S.W.2d
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500, 504 (Tex. Crim. App. 1995). Both Lee and Brown testified that the knife was at Lee’s
throat. According to Lee, Appellant ordered her to give him the “effing money” or “Bitch, I will
kill you.” Brown told the court he saw a folding pocketknife with a two-inch blade that cast a
“shiny reflection” on Lee’s throat. It was sharp enough to cut her knuckle in the struggle to get
Appellant away from her. The circumstances attending the assault justified the jury in believing
that Appellant’s threat to kill Lee was genuine, and that Appellant believed his knife was capable
of inflicting death.
The manner of use is the most important consideration in making a deadly weapon
determination. Jones v. State, 843 S.W.2d 92, 97 (Tex. App.—Dallas 1992, pet. ref’d).
According to Lee, Appellant kicked in the door to her bedroom breaking the door from its
hinges. Once inside, he threw her on the bed, put a knife to her throat and demanded his “effing
money” or “Bitch, I’ll kill you.” The only rational inference to be drawn from the manner in
which appellant wielded the knife and his threat to kill that accompanied the attack is that his
knife was capable of causing death or serious bodily injury. Considering all the factors relevant
to a deadly weapon finding, we conclude the evidence is sufficient to convince a rational jury
that the knife used in the assault was a deadly weapon. Appellant’s issue is overruled.
DISPOSITION
The judgment is affirmed.
BILL BASS
Justice
Opinion delivered March 31, 2023.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 31, 2023
NO. 12-22-00152-CR
STEVE CABELLO,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1230-21)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Bill Bass, Justice.
Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J.,
Twelfth Court of Appeals, sitting by assignment.