No. 05-03-00662-CR
Opinion Filed January 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F02-73716-Ql. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
Opinion By Justice FRANCIS
Timothy Dale Lane waived a jury trial and pleaded not guilty to aggravated assault with a deadly weapon. The trial court found appellant guilty, sentenced him to twenty years confinement, assessed a $10,000 fine, and made an affirmative finding that appellant used or exhibited a deadly weapon, a knife, during the commission of the offense. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
On the morning of October 15, 2002, appellant went to the apartment of Lashima Davis and banged on the door. Appellant is the father of Davis's son. Davis refused to open the door and called police. The officers gave appellant a criminal trespass warning to stay away from Davis's residence, then let appellant go. Two hours later, Davis walked from her apartment to a nearby bus stop. She was carrying her new-born son and was with a cousin. Davis testified she saw appellant walking toward her. She handed her son to the cousin and told her to run and call the police. Appellant grabbed Davis, hit her several times in the face with his fist, and knocked her down into the street. Davis got up and tried to run, but appellant grabbed her. Appellant then held a "pocket knife" to Davis' neck and said, "Bitch, I'm fixin' to cut your throat. Bitch, I'm fixin' to stick you in the stomach." Appellant did not cut Davis with the knife. Davis testified that although a woman came to help her, Davis was never able to break free from appellant's grip. Appellant let her go and ran away from the scene because he knew police were on the way. Davis testified she was afraid appellant would stab her with the knife. Debra Williams testified she was driving her children home when she saw appellant beating a young woman. Appellant was hitting the woman and backing her into the street. Williams swerved her vehicle to avoid hitting the woman, then turned around and parked on the sidewalk. Williams walked up to appellant and the woman and asked if she needed help. The woman was yelling for help. Appellant had the woman in a "bear hug" and continually hit her. Williams testified she told appellant to stop, but he continued. Appellant let the woman go and walked away. Williams took her into the rental office of a nearby apartment complex and waited for police. Williams testified she saw appellant hitting the woman in the face with a closed fist, but she did not see a weapon. Williams's eleven-year-old daughter Delia testified she saw appellant hitting a woman in the face, and she saw a knife in appellant's hand Delia told Williams appellant had a knife before Williams got out of the vehicle to help the woman. Delia testified she saw appellant put the knife by the woman's neck. Delia described the knife as a "pop-up" knife. Appellant denied he hit or threatened Davis or that he had a knife. Appellant testified he and Davis had a "confrontation" at the bus stop about her calling the police that morning. He said there was a protective order against him, but he wanted to talk to Davis. Appellant admitted he was angry when he confronted Davis that morning. He grabbed Davis by her blouse and pushed her several times. The last time he shoved Davis, she fell into the street, where a car almost hit her. Applicable Law
In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Lashima Davis with imminent bodily injury and used or exhibited a deadly weapon during the commission of the assault. See Tex. Pen. Code Ann. §§ 22.01, 22.02 (Vernon Supp. 2004). A "deadly weapon" means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or 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). The statute covers conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Discussion
Appellant argues the evidence is legally and factually insufficient to prove the knife in question was a deadly weapon because the complainant had no knife wound, which indicates appellant did not intend to use the knife for purposes of causing injury or death. Appellant argues that he and the complainant were close to one another and the lack of a knife injury dispels any notion that appellant intended to use the knife to cause injury or death. The State responds the evidence is legally and factually sufficient to show appellant assaulted the complainant, held a knife to her neck, and threatened to harm her with the knife. We agree with the State. Although a knife is not a deadly weapon per se, a knife can be found to be a deadly weapon based on the nature of its use or intended use. See Thomas v. State, 821 S.W.2d 616, 619-20 (Tex.Crim. App. 1991). Expert testimony is not required to establish the knife as a deadly weapon, nor is the presence of a wound a prerequisite to a finding of deadliness. See Denham v. State, 574 S.W.2d 129, 131 (Tex.Crim.App. 1978); Jones v. State, 843 S.W.2d 92, 96 (Tex.App.-Dallas 1992, pet. ref'd). It is sufficient if the weapon is displayed in a manner conveying an express or implied threat that serious bodily injury or death will result if the aggressor is not satisfied. See Jones, 843 S.W.2d at 97. The manner of use is the most important criterion. See Dominique v. State, 598 S.W.2d 285, 286 (Tex.Crim.App. [Panel Op.] 1980); Jones, 843 S.W.2d at 97. Davis testified appellant held a knife to her neck and threatened to cut her. According to Davis, appellant also threatened to "stick" her in the stomach with the knife. Delia Williams testified she saw appellant holding a knife, and she saw appellant put the knife to Davis's neck. Appellant denied having a knife. After reviewing all of the evidence under the appropriate standards, we conclude the evidence is legally and factually sufficient to support the conviction for aggravated assault with a deadly weapon. See Jackson, 443 U.S. at 318-19; Johnson, 23 S.W.3d at 11; Jones, 843 S.W.2d at 97. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment.