No. 05-02-01108-CR.
Opinion Issued April 23, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81338-01. Affirmed.
Before Justices MORRIS, WHITTINGTON, and FRANCIS.
Opinion By Justice WHITTINGTON
A jury found appellant Antonio Castillo III guilty of two counts of aggravated assault. The trial judge found a deadly weapon had been used during the commission of the offense, and sentenced appellant to twelve years' confinement in the Texas Department of Criminal Justice. In six points of error, appellant challenges the legal and factual sufficiency of the evidence to support the jury's verdict and the trial court's deadly weapon finding. We affirm the judgment of the trial court.
Factual Background
Boaz Gonzalez and his wife Babielee Marie Gonzalez lived together from 1995 to 2000 and had three children. They then separated, and Babielee Gonzalez and appellant became romantically involved and began living together. On May 1, 2001, after an argument with appellant, Babielee Gonzalez asked Boaz Gonzalez to go with her to her residence in McKinney to pick up their children. Appellant was present at the residence. Boaz Gonzalez went into the house to get his children. While in the house, he observed appellant talking to Babielee Gonzalez and asking her to stay. Appellant was kneeling close to Babielee Gonzalez, and Boaz Gonzalez saw a knife appellant's hand. He then observed appellant putting the knife behind a pillow on a bed. As Boaz Gonzalez was leaving the house, Babielee Gonzalez called to him twice, and grabbed his arm. She walked out with him. Boaz Gonzalez believed Babielee Gonzalez was frightened by appellant because of her actions in calling him, grabbing his arm, and in asking him to come with her to the house to get the children. On the porch, Boaz Gonzalez and appellant began to argue about whether appellant should be the one to leave the house. Boaz Gonzalez challenged appellant to a fistfight. Boaz Gonzalez testified at trial that appellant pulled a knife from behind his back and threatened him with it. Boaz Gonzalez described the knife. It appeared to be the same knife he had seen appellant hide earlier. He testified the knife "was probably about four or five inches long. It was a butcher knife. It went wide and tapered at the end." He testified it was not like a butter knife or a paring knife, but a regular kitchen butcher knife, one of the larger knives a person might have in the kitchen. When appellant pulled out the knife, he held it out in front of him, toward Boaz Gonzalez, who was about a foot away. Boaz Gonzalez testified appellant was close enough to him that appellant could have stabbed him with the knife. He further testified he felt threatened and told appellant to drop the knife. Appellant refused and said "he was going to get him some." In Boaz Gonzalez's opinion, the knife was a deadly weapon. At that point Anabel Perez, a cousin of both appellant and Babielee Gonzalez, who had also accompanied Boaz Gonzalez to the residence, went into the house to get her keys. Appellant moved back toward the house. Perez, Babielee Gonzalez and Boaz Gonzalez then left the residence and took the children to the home of Babielee Gonzalez's mother. The mother called police. McKinney police officer Aubrey Palmer responded to the call and interviewed Babielee Gonzalez at her mother's home. According to Palmer's testimony, Babielee Gonzalez complained appellant confronted her with a knife; pulled a knife on Boaz Gonzalez and threatened him; and was afraid appellant would cut her. In her written statement for the McKinney Police Department, Babielee Gonzalez stated appellant pulled a kitchen knife on her. The written statement alleged appellant "began to push me around" and was "screaming in her face" before she left to get Boaz Gonzalez. When she returned, appellant said, "I knew you were going to pull this." In the statement, Babielee Gonzalez also said she "witnessed him [appellant] pulling a knife on Boaz Gonzalez." At trial, Babielee Gonzalez admitted she made a statement to police that appellant pulled a knife on her. She testified, however, that appellant did not pull a knife on her and she did not see appellant pull a knife on Boaz Gonzalez. About a month before trial, Babielee Gonzalez and Perez filed affidavits swearing appellant did not have a knife on the night in question. Evidence at trial showed Perez was related to both appellant and Babielee Gonzalez, and was a very close friend of Babielee's. Babielee Gonzalez and appellant remained romantically involved. Diana Hale, a detective for the City of McKinney who handles family violence cases, testified she was assigned to investigate the case against appellant. She interviewed Babielee Gonzalez the day after the alleged assault. Babielee Gonzalez told Hale appellant pulled a knife on her and on Boaz Gonzalez. Hale further testified it was very common for the victim of family violence to drop charges and choose not to pursue prosecution of the abuser. The jury instructions included definitions of "deadly weapon" and "knowing" and "intentional" conduct. The jury found appellant guilty of aggravated assault against both Babielee Gonzalez and Boaz Gonzalez. Standard of Review
In two points of error, appellant urges that the evidence is legally insufficient to show he knowingly or intentionally committed the assaults of Babielee Gonzalez and Boaz Gonzalez. In his remaining four points of error, appellant complains the evidence is legally and factually insufficient to show he used or exhibited a deadly weapon during the assaults of Babielee Gonzalez and Boaz Gonzalez. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment to 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, 318-19 (1979). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates that 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); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting a factual sufficiency review, we examine the jury's weighing of the evidence. See Clewis, 922 S.W.2d at 133. In so doing, we view all the evidence without the prism of "in the light most favorable to the prosecution." See Johnson, 23 S.W.3d at 7; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim. App. 1997). We do not, however, judge the credibility of witnesses in determining factual sufficiency. See Nolasco v. State, 970 S.W.2d 194, 196 (Tex.App.-Dallas 1998, no pet.); Dillard v. State, 931 S.W.2d 689, 696 (Tex.App.-Dallas 1996, pet. ref'd, untimely filed). Rather, we defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See Johnson, 23 S.W.3d at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The purpose of our review is only to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. "That a different verdict would be more reasonable is, therefore, insufficient to justify reversal." Medina v. State, 7 S.W.3d 633, 637 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1102 (2000). We will uphold the jury's verdict "unless it is so `against the great weight of the evidence' that it is `clearly wrong and unjust,' i.e., manifestly unjust, shocking to the conscience or clearly biased. . . ." Medina, 7 S.W.3d at 637 (citing Clewis, 922 S.W.2d at 135); see Mitchell v. State, 12 S.W.3d 158, 159 (Tex.App.-Dallas 2000, no pet.). Intentional or Knowing Conduct
In his first and fourth points of error, appellant complains the evidence is legally insufficient to establish he acted knowingly or intentionally in assaulting Babielee Gonzalez or Boaz Gonzalez. A person commits aggravated assault if he intentionally or knowingly threatens another with imminent bodily injury while using or exhibiting a deadly weapon. See Tex. Pen. Code Ann. §§ 22.01(a)(2); 22.02(a)(2) (Vernon 2003); DeLeon v. State, 865 S.W.2d 139, 141 (Tex.App.-Corpus Christi 1993, no pet.). The mere presence of a deadly weapon, under proper circumstances, can be enough to instill fear and threaten a person with bodily injury. DeLeon, 865 S.W.2d at 142. The accused's intent may be inferred from his words, acts, and conduct at the time of the offense. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991). A person acts intentionally with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). A person also acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. § 6.03(b); Donoho v. State, 39 S.W.3d 324, 328 (Tex.App.-Fort Worth 2001, pet. ref'd). Here, there was evidence appellant pointed a knife at Boaz Gonzalez in the course of an argument and said he was "going to get him some." There was evidence Boaz Gonzalez felt threatened. There was also evidence appellant stood close enough to Boaz Gonzalez to stab him with the knife. In her written statement, Babielee Gonzalez described a heated argument with appellant in which he pushed her and screamed in her face, and on her return to the house told her, "I knew you were going to pull this," and pulled a knife on her. There was evidence Babielee Gonzalez acted frightened of appellant. Viewing this evidence in the light most favorable to the judgment, a rational jury could have found appellant intended to threaten Babielee Gonzalez and Boaz Gonzalez with imminent bodily injury. See Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon 2003) (person intentionally or knowingly threatening another with imminent bodily injury commits assault); Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon 2003) (person using or exhibiting deadly weapon in commission of assault commits aggravated assault). Appellant points to the evidence presented that he did not have a knife and that Boaz Gonzalez was attempting to start a fight with him. The jury, however, was "the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony." Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim. App. 1984). The factfinder may believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). There was legally sufficient evidence appellant intended to threaten Babielee Gonzalez and Boaz Gonzalez with imminent bodily injury. Appellant's first and fourth points of error are overruled. Deadly Weapon
Appellant also urges the evidence was legally and factually insufficient to show he used or exhibited a deadly weapon during the assaults of Babielee Gonzalez and Boaz Gonzalez. A deadly weapon can be "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(a)(17)(B) (Vernon 2003); see also Garcia v. State, 92 S.W.3d 574, 575 (Tex.App.-Austin 2002, no pet.). The defendant need not intend to cause death or serious bodily injury, only to use or intend to use the object in a manner that is capable of such a result. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). Conduct that threatens deadly force may be sufficient. See Johnson v. State, 91 S.W.3d 413, 415 (Tex.App.-Waco 2002, pet. filed). In McCain, the Court found legally sufficient evidence that a butcher knife carried in the defendant's back pocket and visible to the victim of the aggravated robbery was a deadly weapon even though the defendant did not touch it, brandish it, or refer to it during the robbery. McCain, 22 S.W.3d at 499, 503. A knife can be a deadly weapon if in the manner of its use or intended use it was capable of causing death or serious bodily injury. See Nickerson v. State, 69 S.W.3d 661, 670 (Tex.App.-Waco 2002, pet. ref'd); Tex. Pen. Code Ann. § 1.07(a)(17)(B). To determine whether a knife is a deadly weapon in the manner of its use or intended use, courts examine the following factors: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony of the knife's life-threatening capabilities. See Nickerson, 69 S.W.3d at 670 (citing Thomas v. State, 821 S.W.2d 616, 619 (Tex.Crim.App. 1991), Davis v. State, 22 S.W.3d 638, 641 (Tex.App.-Waco 2000, pet. ref'd), and Garcia v. State, 17 S.W.3d 1, 4 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd)). The jury heard evidence the knife was a four- or five-inch butcher knife. There was evidence appellant pointed the knife at Boaz Gonzalez during an argument, stated he was "going to get him some," and was close enough to stab Boaz Gonzalez. Further, Boaz Gonzalez felt threatened. There was evidence appellant pulled the same knife on Babielee Gonzalez and that she acted frightened. While there was no evidence appellant inflicted any wounds with the knife on either Boaz Gonzalez or Babielee Gonzalez, and the knife was not introduced as evidence, there was sufficient testimony about the size and manner of use of the knife to support the finding appellant used or exhibited a deadly weapon. See McCain, 22 S.W.3d at 503 (butcher knife was visible in defendant's pocket as he assaulted robbery victim; evidence supported finding that he intended to use knife in manner capable of causing death or serious bodily injury); Billey v. State, 895 S.W.2d 417, 420 (Tex.App.-Amarillo 1995, pet. ref'd). The State need not produce a knife at trial to prove that it was used or exhibited as a deadly weapon. See Morales v. State, 633 S.W.2d 866, 868 (Tex.Crim.App. [Panel Op.] 1982); Billey, 895 S.W.2d at 420. We conclude a rational trier of fact could have found this knife was capable of causing death or serious bodily injury in the manner of its use or intended use. Further, reviewing all the evidence, the jury's verdict is not so against the great weight of the evidence as to be clearly wrong and unjust. Thus, the evidence is legally and factually sufficient to sustain the jury's finding that appellant used or exhibited a deadly weapon. See Nickerson, 69 S.W.3d at 670; Garcia, 17 S.W.3d at 5. We overrule appellant's second, third, fifth, and sixth points of error. We affirm the trial court's judgment.