No. 05-10-00492-CR
Opinion Filed November 9, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 058719.
Before Justices BRIDGES, RICHTER, and MURPHY.
Opinion By Justice MURPHY.
Nathan Nakeal Isaac challenges the sufficiency of the evidence to support his convictions for assault causing bodily injury-family violence and aggravated assault with a deadly weapon. We affirm.
BACKGROUND
Appellant was charged by indictment with one count of assault involving family violence with a prior conviction for an assault against a family member and one count of aggravated assault with a deadly weapon, a knife. See Tex. Penal Code Ann. §§ 22.01(a)(1), (b)(2)(A) (assault-family violence), 22.02(a)(2) (aggravated assault) (West 2011). The indictment also contained an enhancement paragraph alleging appellant had been previously convicted of aggravated assault. Appellant pleaded not guilty to the charges, and the case proceeded to a jury trial. Appellant's stepfather, Lindsey Knox, testified that on February 27, 2009, he and appellant got into an argument, during which appellant picked up the household phone, "chunked it," and hit Knox in the back of his head. He testified "it didn't knock [him] out," but Knox felt the impact. The phone caused a scratch on the back of Knox's head and "made like a little nick." The hit "kind of made [Knox] angry," so he "jumped up" and took a couple of steps toward appellant. Appellant retreated to his bedroom, and Knox did not follow. Knox next saw appellant coming out of his bedroom carrying two knives. Knox testified appellant was "very angry" and remembered grabbing a baseball bat to protect himself "just in case." At that point, appellant's mother Margaret and uncle Samuel stopped appellant, and Margaret took the knives. Knox testified appellant said, "I kill you, bitch, nigger," as appellant was coming toward him with the knives. Knox felt that "as angry as [appellant] was," appellant "probably would have stabbed" him. After Margaret took the knives, Knox put down the bat, went outside to calm down, and called the police. Knox testified he felt appellant was dangerous and he wanted appellant out of the house. Knox testified to two other incidents involving appellant. Just a few weeks earlier, appellant hit Knox in the head with a picture frame. Knox received thirteen stitches as a result of that incident. There was another similar incident in which he and appellant "had a few words," and appellant "swung at" Knox with a kitchen knife. Although the knife scraped him, Knox was able to restrain appellant. Margaret testified as to the February 27 incident that she heard a commotion and saw appellant coming out of his bedroom with two knives. She said appellant was holding the knives down by his side and that she "just took them from him." She said appellant was trying to "look over her" and see where Knox was at the time. When Margaret saw Knox with the baseball bat, she and Samuel pushed appellant back into the bedroom. Margaret also testified she heard appellant cuss and threaten to kill Knox. She explained appellant has anger issues and that he gets mad when Knox calls her bad words, stating "a son ain't going to stand for that." She agreed that calling the police that day was the only way to get appellant out of the house. She testified appellant "was so angry" and "there [was] nothing else [she] could have [done] that day." She remembered the previous incident involving the kitchen knife, testifying she called the police after appellant scraped Knox. She said she could not control appellant and "did all [she] could before [she] called 9-1-1." The police took appellant into custody for that incident. Samuel also testified as to the February 27 events. He was in his bedroom at the time Knox and appellant began arguing and heard Margaret trying to get between Knox and appellant. When Samuel came out of his bedroom, he saw Margaret take the knives from appellant. Samuel described appellant as trying to get to Knox, but Margaret was in the way. Samuel took appellant back into appellant's bedroom to calm him down. Officer Brian Nichols with the Sherman Police Department was one of two officers dispatched to the residence. The dispatch indicated that a man was threatening family members with a knife. Upon arriving, Nichols encountered Knox, who told him that appellant threw a telephone at his head while Knox was sitting at the computer. Knox also told Nichols that appellant went into his bedroom, got two knives, and threatened Knox with the knives. Knox told Nichols that he picked up a bottle to defend himself. A photograph Nichols made of the cut on Knox's head was admitted as evidence. Nichols also spoke with Margaret and Samuel and testified that the three witnesses' stories were consistent. Margaret gave Nichols the knives she took from appellant. Nichols described the knives as "steak knives" and testified that based on his experience and training, the knives were capable of causing serious bodily injury or death. He also considered the knives to be deadly weapons, depending on the manner in which they were used. Nichols described appellant as "pretty forthcoming" when Nichols talked to him. Appellant told Nichols he had an "anger problem" and admitted throwing the telephone at Knox. Yet he denied hitting Knox. Appellant also admitted pulling the knives on Knox, claiming Knox had come at him with a bottle. Nichols testified he did not find the bottle, having been told it was used defensively. He explained that from what he learned in his investigation, "it was obvious that the aggressor was [appellant]." Nobody told Nichols that Knox had a baseball bat. Appellant testified in his defense. He said that after he and Knox "got into it," Knox got the bottle and acted "like he was going to rush [him] with it." Appellant said his mother stopped Knox before Knox could do anything with the bottle. Appellant admitted, however, that he probably got the knives before Knox got the bottle. He said he had the knives to defend himself, stating "I was going to pick up a knife when somebody don't like me and rush me." Appellant also admitted threatening to stab Knox. Appellant recounted the time he "had to hit [Knox] with a picture frame," stating he "walked in the room and [Knox] rushed [him] and [appellant] picked up something and hit him." Appellant also remembered grabbing a knife during a previous fight with Knox. The jury found appellant guilty on both counts as charged in the indictment, and the case proceeded to punishment. The jury found the State's enhancement allegation to be true and assessed punishment at twenty years' imprisonment for the family violence assault count and fifty years' imprisonment for the aggravated assault with a deadly weapon count. The trial court ordered the sentences to run concurrently. DISCUSSION
In two points of error, appellant contends the evidence is insufficient to support his convictions. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters. Jackson, 443 U.S. at 326; Brooks v. State, 323 S.W.3d 893, 899-900 (Tex. Crim. App. 2010) (plurality op.). Evidence of Bodily Injury
Appellant first challenges the sufficiency of the evidence to support his conviction for family violence assault. Specifically, he contends the evidence is insufficient to show Knox suffered "bodily injury" by being hit in the head with a telephone. To obtain a conviction for assault causing bodily injury-family violence, a third-degree felony, the State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Knox, a family member, and that appellant had previously been convicted of assault against a family member. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A); see also Tex. Fam. Code Ann. §§ 71.003 (West 2008) (defining "Family"). The penal code defines "bodily injury" as "physical pain, illness, or any impairment of physical condition." Tex. Penal Code Ann. § 1.07(a)(8) (West 2011). "Bodily injury" has been defined broadly to encompass "even relatively minor physical contacts so long as they constitute more than mere offensive touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Proof of bodily injury is not dependent on the severity of violence used against the victim as long as some resulting physical pain, illness, or impairment of physical condition can be identified. See id. at 787; see also Bolton v. State, 619 S.W.2d 166, 167 (Tex. Crim. App. 1981) (evidence of cut on arm sufficient to show bodily injury); Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.-El Paso 2002, no pet.) ("The existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain necessary to establish `bodily injury' within the meaning of the statute."). Appellant asserts the evidence is insufficient to show Knox suffered "bodily injury" because Knox "only received a little nick or scratch to the back of his head, that didn't hurt at all." He also claims the act of throwing the phone and hitting Knox in the back of his head "was insufficient to inflict a wound that bled or caused any pain." Although Knox testified at trial the hit to his head "didn't hurt," testimony of a victim experiencing physical pain is not required to prove bodily injury. Arzaga, 86 S.W.3d at 778-79. Rather, evidence of a visible injury allows for an inference of pain. See id. (jury permitted to draw inferences from evidence, including inference that victim actually felt or suffered physical pain); see also Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.-Corpus Christi 1988, pet. ref'd) (although victim did not testify he suffered "pain," the jury could infer bruises and muscle strain caused "physical pain" for purposes of section 1.07(a)(8)). Here, there is no dispute that appellant threw a telephone at Knox's head. Knox testified he felt the impact and the blow caused a nick or scratch. Knox described being angry enough to charge appellant and testified he "cussed him out." Upon arrival at the scene, Nichols observed the scrape on Knox's head and took pictures. The jury saw the cut on Knox's head from the photograph admitted as an exhibit. From this evidence, a rational jury could have found that Knox suffered bodily injury as a result of appellant's throwing the phone at Knox's head. See Bolton, 619 S.W.2d at 167; Goodin, 750 S.W.2d at 859. We therefore conclude the evidence is sufficient to support appellant's conviction for assault involving family violence. See Jackson, 443 U.S. at 319. We overrule appellant's first point of error. Knife as a Deadly Weapon
Appellant next challenges the sufficiency of the evidence to support his conviction for aggravated assault with a deadly weapon. Specifically, he contends the evidence was insufficient to establish the knives he used or exhibited were deadly weapons. To obtain a conviction for aggravated assault with a deadly weapon, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened Knox with imminent bodily injury while using or exhibiting a deadly weapon, a knife. Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2). A "deadly weapon" is "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). While it is well settled that a knife is not a deadly weapon as a matter of law, the State can, without expert testimony, prove a particular knife to be a deadly weapon by showing the manner of its use or intended use and its capacity to cause death or serious bodily injury. See McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000); Magana v. State, 230 S.W.3d 411, 414 (Tex. App.-San Antonio 2007, pet. ref'd). When there is no actual injury, the State must present evidence of other factors to establish the knife is a deadly weapon, including (1) the size, shape, and sharpness of the blade, (2) the physical proximity between the victim and the knife, (3) implied or express threats made by the accused; (4) testimony regarding the knife's life-threatening capabilities, and (5) the victim's fear of serious bodily injury or death. See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986); Blain v. State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). Thus, the question of whether a particular knife is deadly weapon-by design or by usage-depends upon the evidence of each individual case. Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991). Appellant asserts the knives were not deadly weapons because, as he entered the hallway after getting the knives from his bedroom, he was "immediately stopped by his mother and Samuel." He claims "the blades of the knives were not capable of causing death or serious bodily injury" because of the distance between him and Knox. He also claims the evidence does not show he displayed or used the knives in a manner to establish the knives would be capable of causing death or serious bodily injury. The two knives were collected by Nichols at the scene and admitted as evidence at trial. Nichols described the knives as "steak knives" and testified that based on his experience and training, the knives were capable of causing serious bodily injury or death; he considered the knives to be deadly weapons. Three witnesses testified that appellant had a knife in each hand when he came out of his bedroom. Appellant was described as "very angry" and, according to Margaret, appeared to be looking for Knox. Knox testified that as appellant came toward him with the knives, he was "kind of feeling like, you know, as angry as he was, he probably would have stabbed me." Both Knox and Margaret testified that at the time Margaret got between appellant and Knox and took the knives, appellant was cussing and threatening to kill Knox. Appellant also admitted he threatened to stab Knox. Although Samuel testified appellant was "some distance" away from Knox and that appellant was not close enough to Knox to stab him, Samuel stated appellant "was trying to get to [Knox]." Margaret testified that she and Samuel had to push appellant back into his room. Knox testified that if Margaret had not stepped in front of him, appellant would have come toward him; Knox called the police because he thought appellant was dangerous and needed to be out of the house. The jury also heard about appellant's prior swing toward Knox with a kitchen knife, which scraped him, Margaret's call to the police, and appellant's arrest for that incident. Viewing this evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that the knives used or exhibited by appellant were deadly weapons. Therefore, we conclude the evidence is sufficient to support appellant's conviction for aggravated assault with a deadly weapon. See Jackson, 443 U.S. at 319. We overrule appellant's second point of error. Having resolved appellant's two points of error against him, we affirm the trial court's judgment.