No. 05-05-01477-CR
Opinion Filed July 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-82312-04. Affirm.
Before Justices MORRIS, O'NEILL, and MAZZANT.
Opinion By Justice O'NEILL.
A jury convicted Roberto Salazar of aggravated assault with a deadly weapon and assessed punishment at five years' imprisonment. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
For two days in September 2004, Destiny Lincoln, her sister, and her mother stayed in appellant's apartment because they had been evicted from their apartment. Lincoln testified that on the evening of September 4, 2004, she was sitting on the living room couch with appellant's seven-year-old daughter playing with a radio. Appellant had been drinking and talking with a man who was visiting. Because they spoke in Spanish, Lincoln did not understand what they were saying. Appellant began yelling at the man. Then appellant went into the kitchen, grabbed a butcher knife, walked to the couch, and put the knife to Lincoln's neck. Lincoln testified appellant pressed the knife against her neck, said something in Spanish, then said in English, "Do you understand me?" When Lincoln said yes, appellant removed the knife from her neck. Lincoln and her mother ran out of the apartment and called the police. An officer arrested appellant a short time later at a nearby convenience store. Lincoln said the knife's blade was about six inches long, three inches wide, and tapered down to a point. Lincoln testified that when appellant put the knife against her neck, "it hurt," she was very afraid and believed appellant might push the knife into her neck, and she thought she was going to die because the knife was capable of causing her death. Lincoln's mother, Marsha Snyder, testified appellant and a man named Chava were talking about someone who owed appellant money and did not pay appellant. Although they spoke in Spanish, Snyder understood what they were talking about. Appellant got louder and more upset as he talked. Snyder was in the kitchen preparing dinner. Appellant got a beer from the refrigerator, grabbed a butcher knife from the kitchen counter, and waved it around as he talked for a few seconds. Then he walked to the couch and put the knife against Lincoln's neck. Appellant said in Spanish, "I want my money," as he pressed the knife against Lincoln's neck. Snyder testified the knife's blade was from six to eight inches long, not sharp enough to cut onions, and "not pointy" at the end. Snyder testified the knife was capable of stabbing someone if enough force was used, and she believed at the time that appellant was going to harm her daughter. Appellant held the knife to Lincoln's neck for about forty-five seconds. When appellant put down the knife, Snyder grabbed Lincoln and ran out of the apartment. Plano police officer Aaron Levy testified he arrived at the complex a little after 10:00 p.m. He saw Lincoln and Snyder walking in the parking lot. Lincoln was scared, and Snyder was agitated and upset. Lincoln told Levy that appellant had pressed a knife into her neck and he used a "large kitchen butcher knife." Levy testified he noticed red marks on Lincoln's neck that were consistent with someone having pressed the tip of a knife into the skin. Another officer had detained appellant at a convenience store across the street from the apartment complex. Levy drove Lincoln and Snyder to that location, where they both identified appellant as the person who had held a knife against Lincoln's neck. Photographs taken at the scene of Lincoln's neck were shown to the jury. Levy testified he did not collect the knife from appellant's apartment because he did not believe there would be any evidence on it and because butcher knives are common items in kitchens. Levy further testified that a butcher knife of the type described by Lincoln is capable of causing serious bodily injury or death. Appellant did not testify during the guilt/innocence phase of the trial. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and 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 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex.Crim. A pp. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex.App.-Dallas 2004, no pet.). In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The State was required to prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily injury to Destiny Lincoln and used or exhibited a deadly weapon during the commission of the offense. See Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2005). A "deadly weapon" is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See id. § 1.07(a)(17). The statutes cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App. 2000). A knife is not a deadly weapon per se, but can be found to be a deadly weapon based on the nature of its use or intended use. Id. at 502-03; Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). Whether a particular knife is a deadly weapon depends upon the evidence. Thomas, 821 S.W.2d at 620. Factors to consider in determining whether a knife is a deadly weapon in its use or intended use include: (1) the size, shape, and sharpness of the knife; (2) the manner of its use or intended use; (3) the nature or existence of inflicted wounds; and (4) testimony about the knife's life-threatening capabilities. Id. at 619. Discussion
Appellant argues the evidence is legally and factually insufficient to support the jury's finding that the knife was a deadly weapon. Appellant asserts the knife was dull and not capable of causing injury or death, nor did he make any stabbing or slashing motions with the knife. Appellant further asserts that Lincoln was not injured and sustained only a small "dot" on her neck. The State responds that the evidence is legally and factually sufficient to prove the knife used by appellant was a deadly weapon. We agree with the State. There was evidence in the record that the knife's blade was six inches long, three inches wide, and tapered to a point. Appellant pressed the point against Lincoln's neck, causing a mark on the skin. Lincoln testified it hurt when appellant pressed the knife against her neck, the knife was sharp, and she feared for her life. Although Snyder testified the knife was too dull to cut onions, she also testified it was capable of stabbing someone if pressure was applied. Levy testified the knife described to him by Lincoln was capable of causing serious bodily injury or death. It was the jury's function to resolve any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); see also Johnson, 23 S.W.3d at 9. We may not substitute our own determination for that of the jury. Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002); Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet.). Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the conviction for aggravated assault with a deadly weapon. See Lane, 151 S.W.3d at 191-92; Johnson, 23 S.W.3d at 7; Thomas, 821 S.W.2d at 620. We overrule appellant's points of error. We affirm the trial court's judgment.