Opinion
No. 05-04-00309-CR
Opinion issued February 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-54981-MW. Affirmed.
OPINION
In appellant Jose Hector Blanco's appeal of his conviction by the trial court for aggravated robbery, once enhanced, we must determine only whether the evidence presented was legally and factually sufficient to prove a chisel was a deadly weapon. Concluding the evidence is both legally and factually sufficient, we affirm the trial court's judgment. By indictment, appellant was charged with aggravated robbery by intentionally and knowingly causing bodily injury to said complainant, by stabbing and by striking complainant with a chisel, and by using and exhibiting a deadly weapon, to-wit, a chisel. See Tex. Pen. Code Ann. § 29.03(a)(2), (3) (Vernon 2003). One enhancement paragraph alleged appellant had a prior conviction for robbery in 1998. The evidence showed that at about 1:20 a.m. on August 28, 2003, the complainant, Miguel Fernandez, and his sister were watching television. When the sister walked into the kitchen to wash her hands, she looked out the window and saw a light on in her father's van which was parked outside. She called the complainant's attention to the light being on. When the complainant looked outside and saw two people inside the van, he grabbed an umbrella that was beside the door and walked outside to investigate. One person ran, but another, later identified as appellant, remained near the van. When appellant did not run, the complainant hit appellant with the umbrella, causing appellant to stumble. The complainant grabbed appellant, and the two men began to struggle. The complainant was trying to hold appellant until the police arrived and appellant was trying to escape. Eventually the complainant's mother and father came outside. The mother yelled at the complainant that he had blood all over his shirt. Seeing the blood, the complainant realized he had been injured. When the complainant saw a weapon in appellant's hand, he let appellant go. Appellant walked away, and the complainant's father, and eventually a neighbor, followed him on foot. Appellant was soon apprehended a short distance away by the police. It was discovered that a window had been broken out of the van and several items were missing. The complainant was taken by ambulance to the hospital. He received treatment for multiple stab wounds, including surgery to repair internal damage. At trial, the complainant, his sister and both parents, a neighbor, and two police officers testified. The complainant testified he did not see anything in appellant's hand while they were wrestling. However, he noticed something shiny in appellant's hands after he had appellant pinned on the ground. The complainant did not feel anything during the fight. The complainant first told the police he saw something he thought was a knife, but later decided what he saw was a chisel. A chisel was found in appellant's pocket by the police at the time of his arrest. The complainant's sister's testimony generally corroborated complainant's. She testified she saw appellant with something in his hand, which he dropped. The sister did not see the object again. The complainant's father testified he was sleeping when a noise awakened him. He went outside to investigate and saw his son fighting with appellant. The father then saw appellant walking away with something in his hand. The father and his neighbor, Jose Arias, followed appellant. They, asked him to stop, but appellant would not. Eventually the police came and arrested appellant. When appellant dropped to the ground, the "knife was left around his side," and it was the same object the father had seen appellant holding earlier. The complainant's father also testified that the property alleged in the indictment was missing from his van. Jose Celsio Arias, the complainant's neighbor, testified that he followed appellant and decided to stop him. However, when Arias tried to do so, appellant hit him with his hand. Arias was not sure what, if anything, appellant had in his hand when appellant hit him. Arias had a gun, but never pointed it at appellant. Dallas police officer Stephan St. Claire testified that while en route to a burglary-in-progress call, he witnessed a disturbance in the street two or three streets away from the call. Several people had gathered, and someone was yelling, "he's got a knife, he stabbed somebody down the street." St. Claire ordered appellant to stop, but appellant did not. St. Claire then drew his service weapon, and appellant laid down on the ground. St. Claire searched appellant and found a yellow-handled wood chisel and a spark plug in appellant's pocket. The chisel was admitted into evidence without objection. St. Claire could not tell whether there was blood on the chisel. Dallas police detective Richard Dodge testified he lifted appellant's left palm print off the outside mirror on the van, along with other unidentified prints. At the conclusion of the State's case, appellant moved for a directed verdict based on insufficiency of the evidence. The trial court denied appellant's motion and appellant rested without putting on any evidence. The trial court found appellant guilty. Appellant then pleaded true to the enhancement paragraph alleging the prior robbery conviction and also stipulated to other prior convictions. The judge assessed punishment at twenty-five years' confinement and a $800 fine.
After finding appellant guilty and the enhancement paragraph true, the trial court assessed punishment at twenty-five (25) years' confinement in the Institutional Division of the Texas Department of Criminal Justice and an $800 fine.
Analysis
In two points of error, appellant contends the evidence is legally and factually insufficient to show the chisel was a deadly weapon. Appellant argues that the evidence did not show that the manner of the chisel's use or intended use was capable of causing death or serious bodily injury. Because appellant's complaint on appeal focuses solely on whether the evidence was sufficient to prove the chisel was a deadly weapon, we so limit our review.Legal Insufficiency
The proper standard of review for legal sufficiency is well established and well known to the parties. That standard requires this Court to "view all the evidence in the light most favorable to the verdict and determine whether a rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt." Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). The trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). "Deadly weapon" is defined in the penal code as "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. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2004-05). The penal code defines "serious bodily injury" as "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(46). Appellant contends, and the State concedes, that a chisel is not a deadly weapon per se. We agree. See Thomas v. State, 821 S.W. 2d 616, 620 (Tex.Crim.App. 1991) (holding a knife is not a deadly weapon per se). Therefore, to be sufficient, the evidence must show that the chisel, by the manner of its use or intended use, was capable of causing death or serious bodily injury. In support of his position that the chisel was not a deadly weapon, appellant cites Charleston v. State, 33 S.W.3d 96, 100 (Tex.App.-Texarkana 2000, pet. ref'd), and Webb v. State, 801 S.W.2d 529, 532-33 (Tex.Crim.App. 1990) (per curiam). Charleston sets out the following factors to be considered in determining whether an object is capable of causing death or serious bodily injury: (1) physical proximity between the victim and the object; (2) threats or words used by the assailant; (3) the size and shape of the weapon; (4) the weapon's ability to inflict death or serious injury; and (5) the manner in which the defendant used the weapon. Charleston, 33 S.W.3d at 100. No one factor is determinative, and each case must be examined on its own facts. See Brown v. State, 716 S.W.2d 939, 946-47 (Tex.Crim.App. 1986). In Webb, the defendant was charged with aggravated robbery under section 29.03(a)(1) by causing serious bodily injury to another person. Therefore, the focus of the review was on whether the State had proved serious bodily injury, not whether the object involved was capable of inflicting death or serious bodily injury. Although the evidence in Webb established that the victim suffered bodily injury, there was no evidence that the injury sustained was life threatening or caused a serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ, thus meeting the definition of serious bodily injury. Webb, 801 S.W.2d at 533. We conclude, therefore, that Webb is distinguishable from this case. In Bailey v. State, 38 S.W.3d 157 (Tex.Crim.App. 2001) (per curiam), the court of criminal appeals reaffirmed, and perhaps clarified, what it had earlier said in McCain v. State, 22 S.W.3d 497 (Tex.Crim.App. 2000), about the proper interpretation of section 1.07(a)(17)(B):The statute does not say "anything that in the manner of its use or intended use causes death or serious bodily injury." Instead the statute provides that a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." The provision's plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word "capable" in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.Bailey, 38 S.W.3d at 158-59 (internal citations omitted) (quoting McCain, 22 S.W.3d at 503). Contending the evidence is insufficient under Charleston to prove the chisel in question was a deadly weapon, appellant first notes there is no direct evidence that the complainant was in fact stabbed or how he was stabbed. Appellant contends the complainant was the initial aggressor because he approached appellant, hit him with an umbrella, and grabbed him when he stumbled. Appellant argues the complainant's conduct drew both appellant and the chisel closer to him, and that once the complainant released appellant, appellant left the scene. Appellant further asserts there was no evidence of verbal threats, the chisel is not shaped for stabbing, and the State did not prove the chisel was capable of inflicting death or serious bodily injury by the manner of its use. Appellant further claims there was no expert testimony presented that the chisel was capable of causing death or serious bodily injury. Appellant is correct that no expert testimony was admitted; however, none was required. See Thomas, 821 S.W.2d at 620. Appellant is not correct that the complainant did not testify he was stabbed. The complainant testified he was stabbed, but he did not remember being stabbed. During the struggle, appellant and the complainant were in very close proximity, and appellant was fighting with a chisel in his hand. The complainant was trying to hold onto appellant until the police arrived and appellant was trying to get away. Thus, although appellant made no verbal threats, it is a reasonable inference he had a motive to use whatever means at his disposal to get away, which included stabbing the complainant with the chisel in his hand. After the complainant pinned appellant on the ground, the complainant saw blood all over the front of his shirt and saw a long, straight, shiny object in appellant's hand. Fearing further injury, the complainant let appellant go. Although the complainant's sustained injuries were serious and required emergency surgery, they could have been worse under the circumstances presented. It is a reasonable inference that physically fighting in such close proximity with a chisel in one's hands had the potential or capability of causing the loss of an eye or other facial disfigurement, which fortunately did not happen here. The complainant was taken from the scene by ambulance to the hospital, where he was anesthetized and underwent emergency surgery to repair multiple stab wounds and internal damage. One wound was so deep the doctor could place two fingers inside it. The surgery was performed to repair the complainant's stomach, clean out his intestines, and stop internal bleeding. The trial court observed both the complainant's scars and the chisel, which was admitted into evidence at trial. Applying the Charleston factors to the facts set out above, we conclude a rational fact finder could have determined that, by the manner of its use or intended use, the chisel was capable of causing serious bodily and, thus, was a deadly weapon. We conclude the evidence is legally sufficient to support the conviction. We overrule appellant's first point of error.