No. 05-10-00271-CR
Opinion issued February 23, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-56539-VP.
Before Justices FITZGERALD, LANG-MIERS, and FILLMORE.
Opinion By Justice FITZGERALD.
A jury convicted Floyd L. Evans of aggravated robbery and assessed his punishment at thirty years' imprisonment plus a fine of $1000. Evans conceded below that he stole property from the complaining witness's vehicle. On appeal Evans challenges the sufficiency of the evidence establishing that (1) he exhibited a knife in the course of the theft, and (2) the knife he possessed when arrested qualified as a deadly weapon. We conclude the evidence is sufficient, and we affirm the trial court's judgment.
Standard of Review and Applicable Law
Evans's first issue challenges only the factual sufficiency of the evidence establishing that he exhibited a knife. His second and third issues challenge, respectively, the legal and factual sufficiency of the evidence establishing that his knife was a deadly weapon. The Court of Criminal Appeals has recently directed that: the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (plurality op.) (referring to Jackson v. Virginia, 443 U.S. 307 560 (1979)). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 898 (citing Jackson, 443 U.S. at 319). We will review each of Evans's two challenges under this single standard. As we do so, we defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. at 899. A person commits aggravated robbery if he commits a robbery and uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (West 2003). He commits a robbery if, in the course of committing theft, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2). He "exhibits" a deadly weapon if he consciously displays the weapon during the commission of the required felony offense. Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989). A deadly weapon includes anything that in the manner of its use is capable of causing death or serious bodily injury. Tex. Penal Code § 1.07(a)(17)(B) (West Supp. 2010). "In the course of committing theft" includes immediate flight after the commission of theft. Id. § 29.01(1) (West 2003). Exhibiting a Knife
Evans concedes that there was conflicting evidence at trial as to whether he exhibited a knife as he fled from the scene of the theft. When Evans was apprehended, officers discovered a pocket knife in his front pants pocket. In his written statement, admitted as an exhibit at trial, Evans stated: "I did have a knife but I didn't threaten to use it. I wouldn't use it. I just wanted to get away." Michael Harper, the complaining witness, testified he discovered Evans in the back seat of Harper's vehicle. Evans jumped from the vehicle, and Harper chased Evans for some period of time through streets and alleys of the neighborhood. Harper testified that when he got "close enough to tackle" Evans, Evans turned and told Harper he had a gun. Harper stopped momentarily, but when Evans did not display a gun, he continued the chase. The second time Harper got close enough to tackle Evans, Evans reached in his pocket and told Harper that he had a knife and was going to cut Harper. Evans began running toward Harper; he held the knife waist-high and pointed it at Harper. This time Harper gave up his chase and called the police. He testified he was afraid of being cut or stabbed by Evans. We conclude Harper's testimony provides ample evidence to support the finding that Evans exhibited a knife while fleeing immediately after the theft. The jury was the sole judge of Harper's credibility. Brooks, 323 S.W.3d at 899. If jurors believed his testimony, they were rationally justified in finding exhibition of the knife beyond a reasonable doubt. Id. at 898. We overrule Evans's first issue. Evans's Knife as Deadly Weapon
Evans argues further that the knife found in his pocket, if it was exhibited, was not a deadly weapon. Again, a deadly weapon includes anything that in the manner of its use is capable of causing death or serious bodily injury. Tex. Penal Code § 1.07(a)(17)(B). A knife is not a deadly weapon as matter of law. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). Whether any particular knife is a deadly weapon-by design or by usage-depends upon the evidence. Id. 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 knife; 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; any words spoken by the assailant, such as threats; and whether the knife itself was introduced into evidence. See Brown v. State, 716 S.W.2d 939, 946-47 (Tex. Crim. App. 1986). In this case, Harper testified he could not describe the knife very well. In response to questions, he stated the knife was smaller than a big kitchen knife; it folded and could fit in Evans's pocket. Harper estimated the blade was longer than the blade on his own two-inch pocket knife. Officer Derrick Jackson frisked Evans after he was handcuffed and found the knife in Evans's front pocket. Jackson opened the knife at the prosecutor's request, and he testified that-based on his training and experience-a knife such as the one Evans carried could be used as a deadly weapon. Sergeant Brian Lamberson, who apprehended Evans and observed the frisk, described the knife blade as about four inches long. Lamberson compared the knife to a Buck knife. As to the distance between the parties, Harper testified that, before Evans turned and pulled the knife, the two men were close enough that Harper could have tackled Evans from behind. Evans then held the knife, blade forward, and ran towards Harper with it. Although no wounds were inflicted, Harper testified Evans threatened to cut him. Finally, the knife was introduced into evidence, so the jury had the opportunity to see and examine it. Considering all of this evidence in the light most favorable to the verdict, any rational jury could have found beyond a reasonable doubt that Evans's knife-in the manner it which it was used-was a deadly weapon. Brooks, 323 S.W.3d at 898. We overrule Evans's second and third issues as well. We affirm the judgment of the trial court.