Opinion
No. 11-03-00311-CR
September 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Taylor County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
Michael John Young was charged in a multi-count indictment with burglary of a habitation with the intent to commit sexual assault and with burglary of a habitation with the intent to commit aggravated assault. Following his plea of not guilty, the jury found appellant guilty on both counts and found that appellant had used or exhibited a deadly weapon during the commission of the offense. See TEX. CODE CRIM. PRO. ANN. art. 42.12, § 3g(a)(2) (Vernon Pamph. Supp. 2004-2005). The jury assessed appellant's punishment at confinement for 20 years on each count to be served concurrently and assessed a fine of $2,000 on each count. We affirm. Appellant presents three issues for review. In his first issue, appellant contends that the trial court erred when it included an instruction in the charge that required the jury to determine whether appellant used or exhibited a deadly weapon during the offense. In issues two and three, appellant contends that the evidence was legally and factually insufficient to support a deadly weapon finding. In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Cr.App. April 21, 2004); Ross v. State, 133 S.W.3d 618 (Tex.Cr.App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App. 2002); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). The victim testified that in the early morning hours of December 2, 1998, she awoke to find appellant standing next to her bed wearing nothing but his underwear. The victim was lying on her stomach when appellant jumped on top of her and threatened to kill her if she said anything. Appellant turned the victim over onto her back, and she began to fight. Appellant choked her and threatened to kill her. The victim eventually broke free and tried to flee, but appellant pursued her. The victim testified that appellant caught her by the hair as she left the bedroom and that he began choking her again. The struggle continued into the living room. Appellant kept choking the victim as the two of them fell over the living room furniture. Appellant and the victim eventually ended up on the couch, where the victim once again managed to free herself from appellant's grip. The victim ran for the door, but it was locked. She finally escaped through the window which appellant had used to enter the apartment. The victim ran to her neighbor's apartment, and they called the police. The victim later identified appellant as her assailant. The victim had met appellant earlier in the day when a mutual friend and appellant visited her apartment. Appellant was also identified by his fingerprints on the window screen that he removed in order to gain access to the apartment. Appellant's fingerprints were also found on a knife found at the foot of the victim's bed. Abilene Police Officer Michael Dawkins testified that on December 2, 1998, at about 5:33 a.m., he received a call about an incident that had occurred at 757 North 10th Street, Apartment 5. He responded to the call; and, when he went to Apartment 6, where the call had originated, he found the victim. Officer Dawkins testified that The victim was frightened and obviously injured. Abilene Police Officer Larry Dale Tatum arrived at the apartment complex shortly after Officer Dawkins. He testified that, when he arrived at the scene, he observed a second story window that had been raised and a screen that had been pushed out and up. Officer Tatum spoke briefly with Officer Dawkins then went into the victim's apartment through the open window by the front door. Officers Tatum and Dawkins both testified that it appeared as though there had been a struggle in the apartment; the coffee table was smashed, objects were scattered on the floor, and the bed was broken. The officers also observed a piece of the victim's hair on the floor. In the bedroom, at the foot of the victim's broken bed, the officers found a sweatshirt containing a bag of marihuana, methamphetamine, and a syringe. The officers also found a pair of men's underwear, socks, a tennis shoe, and a large knife out of its sheath. The knife was an assault knife and was approximately ten inches long with finger holes and a finger guard; the assault knife bore the brand name "The Best Defense." Officer Dawkins testified that a wire near the window that appellant had entered appeared to be freshly cut. The indictment filed March 18, 1999, did not include a deadly weapon allegation. An accused is entitled to notice from the State that the use and exhibition of a deadly weapon will be a fact issue at the time of prosecution. Ex parte Brooks, 847 S.W.2d 247, 248 (Tex.Cr.App. 1993). The written notice may be given independent of the indictment. Ex parte Patterson, 740 S.W.2d 766, 773-74 (Tex.Cr.App. 1987). The record reflects that the State provided appellant with sufficient notice of its intent to seek a finding of the use of a deadly weapon by filing such notice on August 19, 2003. Appellant contends that the trial court erred in submitting the deadly weapon issue to the jury because the knife was not in any way used or exhibited against the victim during the commission of the offense. A knife is not considered a deadly weapon per se, but it may become a deadly weapon. Thomas v. State, 821 S.W.2d 616, 618-20 (Tex.Cr.App. 1991). TEX. PENAL CODE ANN. § 1.07(a)(17) (Vernon Supp. 2004-2005) defines deadly weapon in two ways. First, in Section 1.07(a)(17)(A) "[d]eadly weapon" is defined as "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Although the knife in this case appears to fall under that definition, the jury was not so charged. The charge was in accordance with Section 1.07(a)(17)(B) and defined deadly weapon as "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Section 1.07(a)(17)(B). Appellant testified that he never exhibited the knife toward the victim in any way but that he only used the knife to pry open the window. However, Officer Tatum testified that he did not see any marks on the window indicative of prying. The victim testified that she did not see the knife until the police showed it to her. However, it is not necessary that the State show that appellant actually used the knife in a deadly manner or that the knife actually caused serious bodily injury. Rather, the State must show only that, in order to facilitate the commission of the underlying crime, appellant used or intended to use the knife in a manner which could possibly cause death or serious bodily injury. (Emphasis added) McCain v. State, 22 S.W.3d 497, 503 (Tex.Cr.App. 2000); Hill v. State, 913 S.W.2d 581, 591 (Tex.Cr.App. 1996). The "use" of a deadly weapon during the commission of a felony offense extends to any employment of a deadly weapon even its simple possession if such possession facilitated the associated felony. Patterson v. State, 769 S.W.2d 938, 941 (Tex.Cr.App. 1989). Appellant relies on Cates v. State, 102 S.W.3d 735 (Tex.Cr.App. 2003), for his contention that merely prying open the window with the knife does not satisfy the use requirement. In Cates, the jury convicted the defendant of failure to stop and render aid to a man whom he had just hit and killed while driving his truck. The jury found that the truck had been used as a deadly weapon in the commission of the offense. The Court of Criminal Appeals noted that the relevant time period for determining whether the truck was used or exhibited as a deadly weapon was the time period after the victim was hit or during the commission of the offense of failure to stop and render aid. Cates v. State, supra at 736-739. The offense of failure to stop and render aid did not begin until after the victim had been hit. There was no evidence that the vehicle was driven in a deadly manner beginning at that time. This case is distinguishable from Cates because there is evidence in this case that appellant used the knife in the commission of the offense for which he was tried: burglary of a habitation with the intent to commit sexual assault, not some other offense as in Cates. Further, there is evidence of intent to use the knife in a manner which could cause death or serious bodily injury. Intent may be inferred from the defendant's conduct and surrounding circumstances. Nunez v. State, 117 S.W.3d 309, 322 (Tex.App.-Corpus Christi 2003, no pet'n); Moore v. State, 54 S.W.3d 529, 539 (Tex.App.-Fort Worth 2001, pet'n ref'd). The jury alone is empowered to determine the issue of intent. Moore v. State, supra. The events of a burglary may imply the intent with which the accused entered, and intent may be inferred from the accused's conduct and surrounding circumstances. Moore v. State, supra. Further, where the charge is burglary with an intent to commit a felony, the offense is committed whether or not the intended felony is completed, as long as the entry is made with the intent to commit the felony alleged. Jimenez v. State, 804 S.W.2d 334, 341 (Tex.App.-San Antonio 1991, pet'n ref'd). In this case, appellant admitted that he used the knife to pry open the window thus facilitating the burglary. The knife was found unsheathed at the foot of the victim's bed. Appellant assaulted, choked, and threatened to kill the victim. It is a reasonable inference for the jury to make that appellant intended to use the knife to facilitate the sexual assault. After reviewing all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements necessary to support a deadly weapon finding beyond a reasonable doubt. Likewise, viewing all of the evidence in a neutral light, we cannot conclude that the evidence supporting appellant's conviction is so weak as to render the conviction clearly wrong and manifestly unjust or that the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. We conclude that the evidence is legally and factually sufficient to support a finding that appellant used a deadly weapon during the commission of the offenses. In light of this determination, we also conclude that the trial court did not err in submitting the deadly weapon issue to the jury. Appellant's issues on appeal are overruled. The judgment of the trial court is affirmed.
Appellant's trial was originally set for April 10, 2000. However, appellant did not appear and was not located until April of 2003. A new prosecutor who was assigned to the case in the interim made the decision to seek a deadly weapon finding.