Cooks v. State

Full title: JERRY GLENN COOKS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 21, 2005

No. 05-03-01128-CR (Tex. App. Apr. 21, 2005)

Opinion

No. 05-03-01128-CR

Opinion Filed April 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court, No. 3, Dallas County, Texas, Trial Court Cause No. F02-52024-J. Affirmed.

Before Justices WRIGHT, FITZGERALD, and LANG-MIERS.

MEMORANDUM OPINION

KERRY P. FITZGERALD, Justice.

Jerry Glenn Cooks appeals his conviction for possession with intent to deliver between one and four grams of cocaine. In four points of error, Cooks challenges the State's jury argument and the jury's deadly-weapon finding. The facts of this case are known to the parties, and we do not recite them in detail. Further, because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm. Cooks's fourth point of error complains that the State's closing argument contained impermissible comments concerning Cooks's "non-testimonial demeanor" at arraignment, when he was asked for a plea and he responded "I don't know." The record indicates Cooks did not object to the comments in any fashion. By failing to object to the complained-of jury argument, Cooks forfeited his right to raise any alleged error on appeal. See Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App. 2003) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)). Cooks's fourth point of error is overruled. Other than this jury-argument complaint, Cooks's appellate points are limited to the jury's deadly weapon finding. When Cooks was arrested, he had a knife known as a butterfly knife in his pocket. His first and second points complain, respectively, of legally and factually insufficient evidence to support the finding that the butterfly knife actually was a deadly weapon. His third point complains the evidence was likewise insufficient to prove he used or exhibited the knife during the commission of the drug offense. In determining the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). The penal code instructs that "deadly weapon" means:

(A) . . . anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) 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). Two undercover police officers observed Cooks displaying the knife just before they observed him conduct a drug sale in a parking lot. One officer testified:

He was walking around the parking lot and in his hand he had a — what's called a butterfly knife. It's a knife that opens by gravity. The blade falls out of the handle. And he was I guess just kind of flicking it up and down and playing with it. And there was a tree that was there along the parking lot, and he would walk up to the tree and was like stabbing at the tree or cutting the bark off.

The officer testified that, after watching Cooks "playing" with the knife, he believed it could cause bodily injury. He also testified that when he called for a uniformed officer to arrest Cooks, he warned that the suspect had a knife, so the officer would be sure to bring another officer with him.¹ The second undercover officer also testified at trial. He testified he observed the defendant with his knife in the parking lot as well:

Well, the defendant was obvious about flipping the knife — the knife opens with just the use of gravity, flinging it back and forth the blades coming in and out. And at that time I knew that we had a safety concern.

The second undercover officer also expressed need for assistance for the uniformed officer who would make the arrest. The arresting officer testified as well. He described the knife as a butterfly knife, which stays folded and is easily concealable in one's pocket, but which can be pulled out and — with a flick — produce "a fairly substantial weapon." He further testified that, based on his training and experience the knife was a deadly weapon and could be used to inflict death or serious bodily injury. All of this evidence supports the jury's finding that the butterfly knife was a deadly weapon. We conclude a rational trier of fact could have found that the knife was a deadly weapon beyond a reasonable doubt. See Jackson, 443 U.S. at 319. The evidence was legally sufficient to support that finding; we overrule Cooks's first point of error. The defense elicited testimony that the arresting officer did not measure the blade of the knife.² Cooks argues that there is no evidence that his knife was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury and that no witness saw Cooks use the knife in a threatening or hostile manner. Even if we agreed with these arguments, the definition requires only evidence that the weapon be " capable of causing death or serious bodily injury." Tex. Pen. Code § 1.07(17)(B) (emphasis added). Here, three police officers saw the knife and described it to the jury. The two undercover officers saw Cooks demonstrate the knife's use in the parking lot. The knife itself was admitted into evidence for the jury's inspection. All of this evidence was proffered to the jury, which then determined the knife was indeed capable of causing death or serious bodily injury. Viewing all of the evidence in a neutral light, we conclude the evidence that the butterfly knife was a deadly weapon, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt. Nor is the evidence contrary to that finding so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. We conclude the evidence was factually sufficient to support the jury's finding that the butterfly knife was a deadly weapon, and we overrule Cooks's second point of error. Finally, Cooks argues that there was insufficient evidence he "used or exhibited" a deadly weapon during the commission of his felony. See Tex. Code Crim Pro. art. 42.12, § 3g(a)(2). Again, Cooks argues that there was no evidence Cooks displayed or exhibited the knife during the drug sale. Under Texas law, all felonies are theoretically susceptible to an affirmative deadly weapon finding. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App. 1989). The "use" required by statute can be satisfied by "any employment of a deadly weapon, even simple possession, if such possession facilitates the associated felony." Coleman v. State, 145 S.W.3d 649, 652 (Tex.Crim.App. 2004). Courts have concluded that possession of a weapon can facilitate criminal possession of drugs with intent to distribute them. See, e.g., Gale v. State, 998 S.W.2d 221, 226 (Tex.Crim.App. 1999) (when unloaded weapons, ammunition, and distribution-sized packages of marijuana found together in closet, rational jury could determine appellant used weapons to facilitate criminal possession of marijuana). We conclude the evidence was legally and factually sufficient to support the finding that Cooks "used" the knife, within the meaning of the statute, to facilitate the offense of possession with intent to distribute the cocaine. We overrule Cooks's third point of error. We have decided each of Cooks's points of error against him. Accordingly, we affirm the judgment of the trial court.

1 The arresting officer testified that he did in fact arrange to have another officer at the arrest because he had been told of the presence of the knife.

2 Counsel for the defense also asked if that officer knew the length "knife blades needs [sic] to be to be considered illegal?" The apparent reference in both cases was to the penal code's definition of an "illegal knife," which includes one with a blade over five and one-half inches. See Tex. Pen. Code §§ 46.01(6)(A), 46.02(a) (making an offense of intentional, knowing, or reckless carrying of illegal knife). It is settled that, while not every type of knife is per se a deadly weapon, any knife can — by virtue of its use — become a deadly weapon. See, e.g., McCain v. State, 22 S.W.3d 497, 502-03 (Tex.Crim.App. 2000). Moreover, to the extent categorization as an illegal weapon is relevant to this inquiry, the butterfly knife clearly falls within the definition of a "switchblade," possession of which is an offense. See Tex. Pen. Code §§ 46.01(11) (definition), 46.05(a)(5) (intentional or knowing possession of switchblade is offense).