Opinion
No. 05-09-01387-CR
01-25-2012
ERICK DRAKE CHARETTE, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed as Modified; Opinion Filed January 25, 2012.
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-80524-08
OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Myers
Appellant, Erick Drake Charette, was convicted of aggravated assault with a deadly weapon and sentenced to four years in prison. In two points of error, he argues the evidence is insufficient to support the conviction and the judgment should be modified because it incorrectly lists the name of the "Attorney for State." As modified, we affirm the trial court's judgment. Discussion Sufficiency of the Evidence
In his first issue, appellant argues the evidence is insufficient to support the aggravated assault conviction "because the State failed to prove that a sword was a deadly weapon."
When reviewing a challenge to the sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether a 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); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determination of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).
The indictment in this case alleged that appellant intentionally or knowingly threatened the complainant, Lacrisha Sisk, with imminent bodily injury and used or exhibited a deadly weapon, to- wit, a "sword," that in the manner of its use and intended use was capable of causing death or serious bodily injury, during the commission of the assault. A person commits the offense of aggravated assault if he uses or exhibits a deadly weapon during commission of an assault. Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. Id. § 1.07(a)(17)(A). A deadly weapon also includes 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)(B). The penal code defines a "sword" as an "illegal knife," but it does not provide further definition, and it defines a "knife" as "any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person." See id. §§ 46.01(6)(E), (7).
A knife is not a deadly weapon per se. See Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App. 2005); Thomas v. State, 821 S.W.2d 616, 620 (Tex Crim. App. 1991). The court of criminal appeals has noted that generically describing an object "as a 'knife' does not by itself establish the object as a deadly weapon by 'design' because many types of knives have an obvious other purpose (e.g. butcher knives, kitchen knives, utility knives, straight razors, and eating utensils)." Robertson, 163 S.W.3d at 732. Other types of knives, such as "[b]ayonets, scimitars, and various kinds of swords," are deadly by design "because they are designed to cause death." Id.
Whether any particular knife is a deadly weapon by design, a deadly weapon by usage, or not a deadly weapon at all depends on the evidence. Thomas, 821 S.W.2d at 620. When determining the deadliness of a weapon, the jury may consider all of the facts of a case. Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). As we review the evidence, we consider factors such as the size, shape, and sharpness of the blade; the manner of its use or intended use; its capacity to produce death or serious bodily injury; the physical proximity of the parties; the nature of any wounds inflicted; and any words spoken by the assailant, such as threats. See Brown v. State, 716 S.W.2d 939, 946-47 (Tex. Crim. App. 1986). Expert or lay testimony may be sufficient to support a deadly weapon finding. Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008). The blade need not actually have caused any injuries to be a deadly weapon. Id. at 691.
In this case, the evidence shows that the object in question was capable of causing death or serious bodily injury in the manner of its use or intended use. According to the record, on January 19, 2008, Sisk came home from work at around 10:30 p.m. or 10:45 p.m. to find her boyfriend, appellant, "drunk and obnoxious." They argued about where she had been all day, and appellant accused her of being with another man. Appellant then held a "sword" to Sisk's throat and asked where she had been. When Sisk replied that she had been at work, appellant hit her in the forehead with the "back" of the sword and asked again. Sisk repeated that she had been at work and, according to her testimony, appellant swung the sword "several times at the chair I was sitting in, and tore the carpet up and hit the back of the chair . . . ."
At one point, appellant and Sisk were arguing in the hallway when appellant thrust the sword through the wall several times. The sword went through the wall into their son Seth's bedroom. Appellant "broke" part of the living room wall with the sword. Sisk also noted that, during this incident, the sword was not in its protective sheath or scabbard.
Appellant would not allow Sisk to leave the trailer. He "ripped the phones out of the wall" so she "couldn't call anybody," and he took the car keys away from her when she tried to leave. Sisk tried to lie down with her son, but appellant dragged her by her hair out of bed and into the living room. Throughout the night, appellant yelled at Sisk that he knew where she had gone, that she was "messing around on him," and that she "had found someone new." At around 6:30 or 7:00 a.m. the following morning, appellant told Sisk that she could leave the trailer. He did not allow her to take their son with her. Sisk could not retrieve the car keys from appellant, so she walked to her mother's house, which was about a block and a half away. Her mother, however, was not at home, and Sisk asked a friend to drive her to work "until [she] could get a hold of someone." Sisk testified that, during the incident, she was afraid and felt that her life was in danger.
Sisk's mother, Diane Avery, grew worried the next morning when she saw that Sisk's car was still at home. Avery noted that both appellant and Sisk had jobs, and she feared they had overslept and would be late for work. Avery started calling Sisk, but no one answered the telephone. When appellant eventually returned Avery's call, he told her that he and Sisk "had been fighting all night," and that "he had turned her loose and he wasn't really holding her hostage." Avery asked appellant about the telephone, and he said that "he had disabled the phone."
Avery told appellant that if he was not "holding them hostage," then she should be able to "come and get Seth." Appellant agreed to allow Avery to retrieve the child. When Avery arrived at the trailer, Avery could see that there were "holes cut in the wall," including "where the baby sleeps," that the "carpet was cut up," and that the "[c]utting block in the middle of the kitchen . . . had been hit." Avery had been to the trailer on the day before and could not recall seeing such damage to the property. Appellant told Avery "that he had to make [Sisk] leave before he killed her." Avery feared that Sisk "was already dead in the house when I couldn't find her." Avery left with Seth and later found Sisk at her workplace. They called the police and reported the assault.
Deputy Lee How of the Collin County Sheriff's Department responded to Sisk's call. Sisk told him that appellant slapped her several times and struck her "with some keys," and that she had been hit with the "back" part of a sword--the scabbard. How observed a mark on Sisk's forehead that she said was caused by the sword. She told him that she was afraid and did not want to return home. How interviewed appellant, who said that he and Sisk "had been in an argument." Appellant denied assaulting Sisk or using the sword as a weapon. When How looked at the sword, he noticed it was bent. Appellant told the deputy that "he had been hitting it on the counter."
Sisk, Avery, and How described the sword to the jury. Avery told the jury that the sword was "about this long" and had "a sheath" that "slid out like this." She said the metal blade was "[s]harp on one side" and "dull on the other." When asked if it was sharp enough to cut paper, she replied, "No sword will cut a piece of paper." When Avery examined the sword on the morning of January 20, she noticed it was "bent" and had "[n]otches knocked out of it." She said that it "was also kind of bowed, like it had really been pounded on something." How said the sword "wasn't razor sharp, but it had an edge on it." He believed that "[y]ou could cut yourself, your thumb or finger," on the blade. Sisk described the sword's blade as follows:
The sheath is a protectant to the metal to keep it from hurting someone. It has a hook where you hang it on the wall. The blade is a metal blade, not completely sharp, but if you hit something it could cut. It's just like any other sword. It's not--only it's not completely sharpened.Sisk and Avery testified that the sword could cause serious bodily injury or death, and How agreed it was a deadly weapon. Police did not collect the sword, and it was not introduced into evidence. Avery testified that "[w]e threw it away when we emptied the house" several months after appellant's arrest.
While he was in jail, appellant wrote letters to Sisk asking her to recant her accusations, including an "affidavit of non-prosecution" that he asked her to sign. He also communicated with friends and family regarding his case. In a telephone call made from the county jail, appellant stated that his lawyer had told him "we need to show the jury that it wasn't a deadly weapon. I'm like, it's a fucking sword man, it is a deadly weapon, always!" He wrote a letter to his mother asking: "Mom, can you google 'stage props katana' . . . [T]he sword was never confiscated and is gone . . . So I need you to find a nondangerous katana that is like mine." In another telephone call made from the jail, appellant asked someone to describe the sword as "safe enough for kids to play with." In yet another telephone call, appellant asked his fourteen-year-old daughter to contact Sisk and "ask her please not to testify."
Considering all of the evidence in the light most favorable to the verdict, any rational jury could have found beyond a reasonable doubt that the sword, in the manner of its use or intended use, was a deadly weapon. Brooks, 323 S.W.3d at 898. Appellant's arguments to the contrary are not persuasive. He cites, for example, Avery's statement that the blade was not sharp enough to cut paper, but other testimony showed the blade was sharp enough to cut carpeting, a countertop, penetrate wall paneling, and cut a thumb or finger. Moreover, even a dull knife can be considered a deadly weapon if held against the complainant "and the threats and gestures made by appellant caused the [complainant] to fear serious bodily injury or death." See Williams v. State, 732 S.W.2d 777, 779 (Tex. App.--Corpus Christi 1987, no pet.) ("butter knife" with "rounded tip" was a deadly weapon). Appellant also points out that Sisk's injuries were minor, but the State is only required to prove that the use or intended use of the object in question was capable of causing serious bodily injury or death. See Tucker, 274 S.W.3d at 691. Appellant likewise argues that Sisk admitted the blade only came within six inches of her, yet Sisk's cross-examination testimony actually shows that she indicated the blade came within six inches of her while appellant was cutting the carpet. She testified on direct that he "put the sword up to my throat" and hit her in the forehead with the "back" of the sword. Finally, appellant argues that no testimony was offered regarding any verbal threats made by him while he held the sword. But How testified that Sisk reported to him that appellant had "said he would kill her if she didn't tell him" who "she had been with." It was the role of the jury, as the judge of the weight and credibility of the evidence, to resolve any conflicts in the testimony. We overrule appellant's first issue.
Modification of the Judgment
In his second issue, appellant argues the judgment should be reformed because it incorrectly recites the name of the "Attorney for State." The State agrees this issue should be sustained.
The prosecutor representing the State at trial was Gary Knapp. The judgment, however, lists the "Attorney for State" as JoDee Neil. We may modify a trial court's written judgment to correct a clerical error when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.--Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect that the name of the "Attorney for State" was Gary Knapp, not JoDee Neil.
As modified, we affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
091387F.U05