Opinion
No. 10-04-00364-CR
Opinion delivered and filed November 9, 2005. DO NOT PUBLISH.
Appeal fromthe 40th District Court, Ellis County, Texas, Trial Court No. 28044CR. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Michael Anthony Caraway of aggravated robbery and assessed his punishment at sixty years' imprisonment. Caraway contends in six points that: (1) the indictment is "constitutionally insufficient" to vest the trial court with jurisdiction; (2) the evidence is legally insufficient to prove that the pocket knife used in the robbery was a deadly weapon; (3) the evidence is factually insufficient to prove that the pocket knife was a deadly weapon; (4) the evidence is factually insufficient to establish his guilt; (5) he received ineffective assistance of counsel; and (6) the brevity of the jury's deliberations at guilt-innocence "denied his constitutional right to a fair trial." We will affirm.
The Indictment
Caraway contends in his first point that the indictment is "constitutionally insufficient" to vest the trial court with jurisdiction because it states on its face that it was presented by a grand jury whose term did not commence until several months after his trial concluded. The indictment recites in pertinent part that it was presented by a grand jury which was "impaneled as such for the County of Ellis, State of Texas, at the December 2004 Term of the 40th Judicial District Court for said County." The indictment was filed by the district clerk in February 2004. Caraway was tried in August 2004. An error in the designation of the grand jury's term is an error of form. See Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App. 1995). If a defendant fails to object before trial to a defect of form in an indictment, the defendant "waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding." Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005). Caraway raises this complaint for the first time on appeal. Because he failed to object before trial, he has failed to preserve this issue for appellate review. See id.; Rodriguez, 899 S.W.2d at 664. Accordingly, we overrule his first point.Deadly Weapon
Caraway contends in his second and third points respectively that the evidence is legally and factually insufficient to prove that the pocket knife used in the robbery was a deadly weapon. When reviewing a legal insufficiency complaint, we consider all the evidence in the record and ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004) (quoting Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). When reviewing a factually insufficiency complaint, we ask whether the evidence supporting the verdict is "too weak to support the finding of guilt beyond a reasonable doubt" or whether the contrary evidence is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Here, the issue is whether there is legally and factually sufficient evidence to support a finding that the pocket knife was "in the manner of its use or intended use . . . capable of causing death or serious bodily injury." See TEX. PEN. CODE ANN. § 1.07(1)(17)(B) (Vernon Supp. 2005); McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). To determine whether a knife was used as a deadly weapon, we examine: • the size, shape, and sharpness of the knife; • the manner of its use or intended use; • the nature or existence of inflicted wounds; and• any testimony of the knife's life-threatening capabilities.See Thomas v. State, 821 S.W.2d 616, 619 (Tex.Crim.App. 1991); Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.-Waco 2002, pet. ref'd). If admitted in evidence, we may also consider the knife itself in evaluating the deadly weapon finding. Cf. Robertson v. State, 163 S.W.3d 730, 734 (Tex.Crim.App. 2005) (if admitted in evidence, knife itself should be considered by appellate court in determining whether it is a deadly weapon by design). In this case, the complainant Trent Pasano was returning home to St. Louis, Missouri from San Antonio where he had been working for several weeks. Pasano stopped at a rest area on Interstate 35 to get some sleep before continuing his journey. He was awakened when the driver's side window "exploded" on him. Two African-American men were standing there demanding that he give them his money. Pasano struggled with them as he started his pickup. One of the attackers, whom Pasano identified as Caraway, "slit [Pasano's] wrist" with a pocket knife. As a result, he was bleeding profusely. The wound required stitches. Pasano testified that he believed the knife to be capable of causing death or serious bodily injury. The State offered photographs depicting Pasano's injuries which corroborated his testimony about the nature of the injuries and the extent of the bleeding. The knife was admitted in evidence. Trooper Bobo, the officer to whom Pasano first reported the robbery, testified that Pasano "was bleeding" and "there was quite a bit of blood inside [his] vehicle and on his person." An in-car video from Trooper Bobo's patrol car was also admitted in evidence. On this video, an unidentified trooper is heard stating that Pasano was "bleeding profusely." Trooper Bobo testified that the knife is "something that in the manner of its use or intended use could cause death or serious bodily injury." Another trooper testified that the knife, "depending on the manner in which it is used, [is] capable of causing death or serious bodily injury." Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that the knife was "in the manner of its use or intended use . . . capable of causing death or serious bodily injury." See Morales v. State, 633 S.W.2d 866, 868-69 (Tex.Crim.App. [Panel Op.] 1982); Nickerson, 69 S.W.3d at 670. Viewing the evidence in a neutral light, we cannot say that the evidence is "too weak to support the finding" that the knife was "in the manner of its use or intended use . . . capable of causing death or serious bodily injury." See Zuniga, 144 S.W.3d at 484. Accordingly, we overrule Caraway's second and third points.