No. 05-06-00932-CR
Opinion filed March 19, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F05-55647-NJH.
Before Justices WHITTINGTON, MOSELEY, and BRIDGES.
Opinion By Justice MOSELEY.
A jury convicted Victor Manuel Ramirez of aggravated assault with a deadly weapon and assessed punishment at twenty years' confinement and a $5000 fine. In his first issue, Ramirez contends the trial court erred in denying his requested jury charge on the defense of necessity. In his second and third issues, Ramirez contends the evidence is legally and factually insufficient to support the jury's verdict. Concluding Ramirez's issues are without merit, we affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The complainant, Diana Ruiz, testified she lived in a house belonging to Ramirez's sister. Ramirez moved into the house. Ruiz testified they were not romantically involved with each other. One evening, Ruiz enlisted a former boyfriend, Gustavo Alfaro Gonzales, and his brother Samuel to help her move out of the house. Ruiz testified neither Gustavo nor Samuel was armed. Ramirez and his brother-in-law Jose arrived at the house. As Ruiz was leaving through the front door, she walked past Ramirez, who began screaming that he was going to kill her and she was "not the first bitch that he had killed." Ruiz took out her cell phone to call the police, and Jose starting punching her. Gustavo got out of his van to help Ruiz. Ruiz testified she moved back from Jose, and Ramirez grabbed her around her neck from behind and stabbed her. Ramirez testified in his own defense. He said he and Ruiz were romantically involved. According to Ramirez, either Gustavo or Samuel started an argument because he was kissing Ruiz and they threatened to kill him. One pulled out a knife, and the other had a steel bar. Ramirez ran to his car and pulled out a knife. He said that Ruiz "got in the middle and maybe she tried to separate us or something." Ramirez testified he did not know what he was hitting. Ramirez's written statement was admitted, in which he stated, in part, that one of the men (that is, Gustavo or Samuel) got angry and waived a knife at him, and when the man tried to stab him, Ramirez wounded him, and then Ruiz "got in the way and that's how I lost control and I stabbed her like three or four times more or less." Ruiz was treated at a hospital for thirteen stab wounds to her back, left arm, neck, and head. Ramirez was indicted for intentionally, knowingly, and recklessly causing bodily injury to Ruiz by cutting or stabbing her with a knife, a deadly weapon, and using or exhibiting a deadly weapon, a knife, during the commission of the assault, or intentionally, knowingly, or recklessly causing serious bodily injury to Ruiz by cutting or stabbing her with a knife, a deadly weapon. See Tex. Penal Code Ann. §§ 22.01(a)(1), 22.02(a) (Vernon Supp. 2007). The jury charge included both these offenses and self defense. II. JURY CHARGE
In his first issue, Ramirez argues the trial court erred in denying his timely requested jury charge on the defense of necessity. A.
Standard of Review and Applicable Law Generally, a defendant is entitled to a jury instruction on any defensive issue raised by the evidence whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). If the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex.Crim.App. 1984). The penal code provides that conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighs, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and, (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Tex. Penal Code Ann. § 9.22 (Vernon 2005). Section 1.07(a)(10) of the penal code defines "conduct" to mean "an act or omission and its accompanying mental state." Id. § 1.07(a)(10) (Vernon Supp. 2007) (emphasis added). See Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App. 2007). With respect to the defense of necessity, when the defensive evidence merely negates the necessary culpable mental state, it will not suffice to entitle the defendant to a defensive instruction. Shaw, 243 S.W.3d at 659. Rather, a defensive instruction is only appropriate when the defendant's defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct. Id.; Young v. State 991 S.W.2d 835, 838 (Tex.Crim.App. 1999). B.
Discussion On direct examination, Ramirez was asked how he felt about what he might or might not have done. He replied, "I didn't notice if I did anything or not." In his written statement, Ramirez said one of the men helping Ruiz waved a knife at him, so he took a knife from his car and "when the man tried to stab me three times I (illegible) it and then [Ruiz] got in the way and that's how I lost control and I stabbed her like three or four times more or less." On cross examination, Ramirez was asked about this statement. He testified, "What I say I waived my knife, because it was dark for me. It was dark. I don't know if I hit her or not." Ramirez did not testify that it was his conscious objective or desire to cause the result of stabbing Ruiz, or that he was aware that his conduct of "waiving" a knife was reasonably certain to cause the result of stabbing Ruiz. Nor did he testify that he was aware of but consciously disregarded a substantial and unjustifiable risk that stabbing Ruiz would occur. See Tex. Penal Code Ann. § 6.03(a) (b), (c) (Vernon 2003) (defining culpable mental states of intentionally, knowingly, or recklessly). See also Dolkart v. State, 197 S.W.3d 887, 893 (Tex.App.-Dallas 2006, pet. ref'd) (bodily injury assault is "result of conduct" offense). Thus, even though Ramirez admitted in his written statement that he stabbed Ruiz, he did not admit, either in that statement or his trial testimony, that he did so intentionally, knowingly, or recklessly. Because Ramirez did not admit to every element of the offense, including the culpable mental state, an instruction on necessity was not appropriate. See Shaw, 243 S.W.3d at 659; Dyson, 672 S.W.2d at 463. We decide Ramirez's first issue against him. III. SUFFICIENCY OF THE EVIDENCE
In his second and third issues, Ramirez asserts that the evidence is legally and factually insufficient to support his conviction. Specifically, he argues the evidence is insufficient to show Ruiz suffered serious bodily injury and that the weapon was a deadly weapon. A.
Standard of Review and Applicable Law In assessing the legal sufficiency of the evidence to support a criminal conviction under Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). But evidence that rationally supports a verdict of guilt beyond a reasonable doubt under the Jackson legal sufficiency standard can still be factually insufficient. Rollerson, 227 S.W.3d at 724; Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625. Both legal and factual sufficiency standards require the reviewing court to consider all of the evidence. Rollerson, 227 S.W.3d at 724. "The difference between the two standards is that the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions `albeit to a very limited degree.'" Marshall, 210 S.W.3d at 625 (quoting Watson v. State, 204 S.W.3d 404, 415, 417 (Tex.Crim.App. 2006)). In reality, a "factual-sufficiency review is `barely distinguishable' from a Jackson v. Virginia legal sufficiency review." Id. (quoting Watson, 204 S.W.3d at 415-16). See Rollerson, 227 S.W.3d at 724. We measure the sufficiency of the evidence against the hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (state law measures evidentiary sufficiency against hypothetically correct jury charge encompassing statutory elements of offense as modified by charging instrument); Gollihar v. State, 46 S.W.3d 243, 255-56 (Tex.Crim.App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). As applicable here, a person commits the offense of aggravated assault if the person commits assault as defined in section 22.01 and the person: (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a). See id. § 22.01(a)(1) (person commits assault if person intentionally, knowing, or recklessly causes bodily injury to another). "Serious bodily injury" means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46) (Vernon Supp. 2007). The relevant inquiry is the extent of the bodily injury as inflicted, not after the effects have been ameliorated or exacerbated by medical treatment. Barrera v. State, 820 S.W.2d 194, 196 (Tex.App.-Corpus Christi 1991, pet. ref'd). "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." Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2007). A knife is not a deadly weapon per se. Denham v. State, 574 S.W.2d 129, 130 (Tex.Crim.App. 1978). A knife can qualify as a deadly weapon by showing the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. Id. A witness's testimony that a knife was used in a manner capable of causing death or serious bodily injury is sufficient to show that the knife was a deadly weapon. Barrera, 820 S.W.2d at 196-97. B.
Discussion Ruiz testified she felt herself being "punched" in the back "plenty of times." She felt like she "couldn't breathe any more" and "felt her head bleeding." She fell to the ground but did not have any strength to move. She felt cold and covered in so much blood she "thought it was raining." She passed out. At the hospital, a tube was put in her side to drain the blood from her lungs. Her wounds were stapled instead of sewn because of the bleeding. She was hospitalized for about nine days. Ruiz testified the staples were in her back for a long time. She also testified she could not drive or work for a long time. At the time of trial, about ten months after the incident, Ruiz had some problems with her left arm; she said when she picks up something "it pulls on my nerve." Photographs showing the wounds were admitted. Medical records indicated a lung injury and a fractured rib. This is some evidence that the stab wounds caused Ruiz injury creating a substantial risk of death or protracted loss or impairment of the function of her left arm and that her injuries were caused by stabbing with a knife used as a deadly weapon. See Tex. Penal code Ann. §§ 1.07(a)(17), (46); Moore v. State, 739 S.W.2d 347, 352 (Tex.Crim.App. 1987) (defining "protracted" as "continuing, . . ., drawn out, . . . lingering . . ."); Barrera, 820 S.W.2d at 196-97. Having considered all the evidence in the record (including the above evidence) in the light most favorable to the verdict, we conclude a rational trier of fact could have found appellant guilty of the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Rollerson, 227 S.W.3d at 724. Thus, we decide Ramirez's second issue against him. In addition, considering all the evidence in a neutral light, we cannot say the verdict is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. We need not further detail the rest of the evidence. See Roberts v. State, 221 S.W.3d 659, 664-65 (Tex.Crim.App. 2007); Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Thus, we decide Ramirez's third issue against him. IV. CONCLUSION
Having decided Ramirez's three issues against him, we affirm the trial court's judgment.