Opinion
No. 10-07-00245-CR
Opinion delivered and filed February 6, 2008. DO NOT PUBLISH.
From the 54th District Court, McLennan County, Texas, Trial Court No. 2007-595-C2. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Bernardo Gallegos Martinez was convicted of aggravated assault and attempted aggravated sexual assault. He was sentenced to 15 years in prison and a fine of $5,000 for each offense. Martinez appeals his conviction, asserting legal insufficiency of the evidence. Because the evidence is legally sufficient to prove that Martinez threatened to stab the victim and to support a deadly weapon finding, the trial court's judgment is affirmed. Rita Hotelling came home from early morning grocery shopping to find Martinez at her side door. She told him to leave. He did not. Instead, he grabbed her arm and, exhibiting a knife, tried to force her to the back yard to sexually assault her. During the struggle, Hotelling screamed. Martinez threatened to stab her with the knife if she screamed again. Hotelling eventually broke loose from Martinez's hold and ran. In two issues, Martinez argues the evidence was legally insufficient to support both convictions. Specifically, in his first issue, he contends the evidence was legally insufficient, regarding the aggravated assault charge, to prove that he threatened to stab the alleged victim. In his second issue, he contends the evidence was legally insufficient, regarding the attempted aggravated sexual assault charge, to prove that the knife allegedly used was a deadly weapon. In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict 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, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). A legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Courts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n. 27 (Tex.Crim.App. 2006). When faced with conflicting evidence, the reviewing court presumes the trier of fact resolved any such conflict in favor of the prosecution. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). Hotelling testified that after she screamed, Martinez told her that if she screamed again, he would stab or slice her. She also testified that Martinez threatened to cut her or slice her with the knife if she screamed again. Martinez argues in his first issue that because Hotelling used the words "stab" and "slice" and "cut" interchangeably, and because each word has a different meaning, the evidence was legally insufficient. However, we presume the jurors resolved a conflict, if any, in the words in favor of the prosecution. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). Reviewing all the evidence in a light favorable to the verdict, the evidence is legally sufficient to prove that Martinez threatened to stab Hotelling. Martinez's first issue is overruled. Hotelling also testified that the knife Martinez used to threaten her was a folding knife, also referred to as a pocket knife, which he unfolded to reveal a 4 inch blade. Martinez argues in his second issue that because no knife was introduced into evidence and because a knife is not a deadly weapon, per se, the jury was unable to determine whether or not the knife Hotelling testified about was capable of causing serious bodily injury or death. But Hotelling stated she was afraid that he would hurt her and that the knife was capable of killing her. Further, Detective Rozyskie, of the Waco Police Department, testified that a pocket knife with a 4 inch blade could be capable of causing serious bodily injury or death by stabbing, slicing, or cutting. It is true that a knife is not a deadly weapon per se. Lafleur v. State, 106 S.W.3d 91, 95 (Tex.Crim.App. 2003). However, an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000); TEX. PENAL CODE ANN. § 1.07 (a)(17)(B) (Vernon Supp. 2007). Objects used to threaten deadly force are deadly weapons. Herring v. State, 202 S.W.3d 764, 766 (Tex.Crim.App. 2006); McCain, 22 S.W.3d at 503. The State need only show that the weapon used was capable of causing serious bodily injury or death in its use or intended use. Adame v. State, 69 S.W.3d 581, 582 (Tex.Crim.App. 2002). Reviewing all the evidence in the light most favorable to the verdict, the evidence was sufficient to prove the use or display of a deadly weapon. Martinez's second issue is overruled. Having overruled each issue presented to us, we affirm the trial court's judgment.