No. 05-08-00602-CR
Opinion issued August 5, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause No. 416-81407-05.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
Opinion By Justice WRIGHT.
A jury convicted Bryan Lee Zimmerman of aggravated robbery with a deadly weapon, and the trial court assessed punishment at eight years' imprisonment. In a single point of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Applicable Law
In reviewing a challenge to 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State was required to prove beyond a reasonable doubt that appellant, while in the course of committing theft of property and with intent to obtain or maintain control of the property, intentionally or knowingly threatened or placed Rodney Cleary in fear of imminent bodily injury or death, and he used or exhibited a deadly weapon, a knife, during commission of the offense. See Tex. Penal Code Ann. §§ 29.02(a), 29.03(a) (Vernon 2003). A "deadly weapon" is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17). While a knife is not a deadly weapon per se, it can be found to be a deadly weapon based on the nature of its use or intended use. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App. 2000); Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). Whether a particular knife is a deadly weapon depends upon the evidence. Thomas, 821 S.W.2d at 620. Factors to consider in determining whether a knife is a deadly weapon in its use or intended use include: (1) the size, shape, and sharpness of the knife, (2) the manner in which appellant used the weapon; and (3) testimony about the knife's life-threatening capabilities. Id. at 619. Evidence Presented
At 9:00 p.m. on April 22, 2005, Rodney Cleary, his wife, and daughter returned to their home from a basketball tournament. Cleary testified that in his neighborhood, the driveways to the garages are located off alleyways at the rear of the houses. Cleary used an automatic door opener to enter the garage, but left the door up because his wife was going to the store. Cleary was inside the house when his wife and daughter got into their van to back out of the garage. Cleary heard his dogs barking at the same time he heard his wife honking the horn. When Cleary went into the garage, he saw a chair that had been inside the garage was now sitting on the grass, and some of his property was missing, including an air compressor and a fishing tackle box. Cleary saw a red truck parked in a neighbor's driveway across from his garage. Cleary testified he knew the truck did not belong in that driveway. Cleary walked to the truck and saw his air compressor and tackle box in the back. Two men were inside the truck trying to hide. Cleary began hitting the driver, later identified as Stephen Kittrell, through the open window with his fists. Appellant, who was in the passenger seat, got out of the truck with a knife in his hand. Cleary testified he saw the knife blade clearly because the houses in his neighborhood have spotlights that faced the garages, and his garage and house lights were on as well. Cleary could not see the knife's handle because appellant's hand covered it. Appellant swung the knife at Cleary several times while standing within arm's length of Cleary. While appellant tried to stab Cleary, Kittrell tried to start the truck. Cleary yelled to his wife to block the truck with their van. When Kittrell got the truck started, appellant jumped into the passenger seat. At that point, Cleary again focused on Kittrell. He again hit Kittrell with his fists several times. Kittrell drove forward, banging the truck into the van to move it out of the way. Appellant got out of the truck a second time with the knife in his hand. As appellant slashed at Cleary with the knife again, Kittrell hit the van again, moving it enough to pull forward. When Cleary realized the van no longer blocked the truck, he jumped into the bed of the truck, picked up a motorcycle helmet that was laying there, and beat Kittrell through the open window with it. Appellant ran down the alley and disappeared. Kittrell wrecked the truck into a fence. Kittrell was arrested that night, but appellant was not arrested until a few weeks later. A few weeks after the assault, Cleary gave a written statement to a detective and viewed a photographic lineup. Cleary identified appellant's photograph as depicting the passenger who had threatened him with a knife. During the trial, Cleary testified Kittrell's "buck knife" that police officers retrieved looked like the knife appellant used while "just trying to stick me." Cleary testified he believed the knife appellant used was capable of causing serious bodily injury or death because of the manner in which appellant slashed at him with it. The knife shown to the jury had a three-inch blade, sharp point, and was partially serrated. Cleary testified that one week before the trial, an investigator came to his home and showed him a notebook with pictures in it. Cleary refused to look at the pictures because he believed "[h]e was trying to sneak-trick me." Cleary denied he told the investigator he could not identify the man with the knife because it was dark and there was not much light outside. Detective Bruce Miller testified he was given appellant's name as a possible suspect in this case. Miller obtained appellant's driver's license photograph and compiled a photographic lineup to show Cleary. He presented the lineup to Cleary on May 10, 2005. Cleary selected appellant's photograph and identified him as the passenger who had threatened him with a knife. Miller testified the driver of the truck was arrested the night of the theft, and appellant was arrested about twelve days later. Appellant presented three witnesses. Plano police officer Richard Glenn testified he responded to a dispatch call to the neighborhood where Cleary lived. As he patrolled the area, Glenn saw a man, later identified as Kittrell, walk out between two houses. Because Kittrell had a knife in his waistband, Glenn detained him at gunpoint. Glenn handcuffed Kittrell, retrieved the knife, then drove Kittrell to the scene of the theft, where Cleary identified him as the driver of the truck. Jeffrey Barnard, a private investigator, testified he went to Cleary's home one week before the trial to interview him and show him a photo lineup. Cleary looked at a few of the pictures contained in a notebook Barnard gave him. After a short time, Cleary closed the book and said it was dark, the person that night was wearing a ball cap, and "[h]e couldn't tell from those pictures because all those guys were almost bald." Barnard testified he did not tell Cleary that he was recording their conversation. The recording was played to the jury. Discussion
Appellant contends the evidence is legally and factually insufficient because the State failed to prove the knife used was a deadly weapon. Appellant asserts that because Cleary was never injured and the knife used was not admitted into evidence, the evidence is insufficient to show the knife was a deadly weapon. Appellant also argues that Cleary's continuous combative acts make it evident that he was not in fear of imminent bodily injury or death. The State responds that the evidence is sufficient to sustain the conviction because it shows appellant used the knife as a deadly weapon. There is no requirement that a complainant sustain an actual injury. A deadly weapon finding may be made, if otherwise supported by the evidence, regardless of whether any injury was inflicted. See Villarreal v. State, 255 S.W.3d 205, 209 (Tex.App.-Waco, 2008, no pet.); McCain v. State, 22 S.W.3d 497 at 503. Likewise, it is not necessary for the weapon to be introduced into evidence. See Banargent v. State, 228 S.W.3d 393, 399 (Tex.App.-Hous. [14 Dist.] 2007, pet. ref'd). The evidence shows the knife appellant used during the assault on Cleary was capable of causing death or serious bodily injury in the manner of its use. Cleary testified appellant swung and slashed at him with the knife, and he feared he would be stabbed. Cleary also said he believed the knife appellant used was capable of causing serious bodily injury or death. Both expert testimony and lay testimony may be independently sufficient to support a deadly weapon finding. See English v. State, 647 S.W.2d 667, 668-69 (Tex.Crim.App. 1983) (en banc). A knife retrieved from Kittrell was shown to the jury during the trial. Cleary testified that Kittrell's knife looked exactly like the knife appellant used to try to stab him. The jury was able to see the knife's size, shape, and sharpness, resolve any conflicts in the testimony, and could freely accept or reject any or all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's deadly weapon finding and the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; McCain, 22 S.W.3d at 502-03. We overrule appellant's sole point of error. We affirm the trial court's judgment.