Opinion delivered and filed June 18, 2008. DO NOT PUBLISH.
Appeal from the 87th District Court Freestone County, Texas, Trial Court No. 06-066-CR. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray concurs in the judgment affirming the conviction. He does not join the Court's opinion. A separate opinion will not issue.).
A jury convicted Robert Schmidt, Jr. of aggravated assault of a public servant and found that he had used a deadly weapon, a knife, in the commission of the offense. The jury found enhancement allegations true and assessed Schmidt's punishment at twenty-five years' imprisonment. Schmidt contends in two issues that the evidence is legally and factually insufficient to prove that he threatened the complainant with imminent bodily injury or that the knife was a deadly weapon. We will affirm.
BackgroundThe indictment alleges in pertinent part that Schmidt "threaten[ed] Josh Vercher with imminent bodily injury by charging at the said Josh Vercher with a knife, and did then and there use or exhibit a deadly weapon, to-wit: a knife, during the commission of said assault." Officer Vercher testified that he and several other officers responded to a domestic disturbance call at the home of Schmidt's parents on the afternoon in question. When they arrived, Schmidt had already left on foot. Vercher found him not too far away leaning against a dumpster. After they made eye contact, Vercher noticed Schmidt "reach in his back pocket and make a furtive move like he — like he was popping open a knife." Vercher radioed this information to the other officers and pulled over to make contact with Schmidt. Schmidt started walking in Vercher's direction. As Vercher got out of the car, Schmidt came around the corner of a building about "[t]wenty, 21 foot" away. He was holding a Maglite flashlight in his right hand "like he was going to use it as a club," and his left hand was behind his back. Vercher ordered Schmidt to get on the ground, but he continued walking toward the officer. Vercher repeated the command, but Schmidt continued walking. Vercher repeated the command a third time and drew his service weapon. Other officers had joined Vercher by this time and were shouting similar commands. Schmidt displayed a knife, pointed it in Vercher's direction, said "[l]et's get this shit over," and charged the officer. As Vercher was about to shoot Schmidt, another officer to one side fired a Taser at Schmidt but hit him with only one of the two prongs necessary to create the electrical impulse which disables the intended target. Schmidt was about ten feet away from Vercher at this point. After the ineffective Taser shot, Schmidt turned and fled. Vercher testified that he thought Schmidt was going to hurt him. He felt "very threatened" and was "scared for [his] life." He stated that he considered the knife to be a deadly weapon and that it was capable of causing death or serious bodily injury. He perceived the flashlight as a threat and testified that it too could have caused bodily injury. Based on Schmidt's actions, he believed bodily injury to himself was imminent. Officer Kenneth Russell likewise testified that he considered the knife a deadly weapon and that it was capable of causing death or serious bodily injury. Russell perceived Schmidt as a threat and felt that Schmidt could have injured him. Russell too drew his service weapon. When the prosecutor asked if Russell had his finger on the trigger, he answered that he did not:
`Cause once — once you trigger that gun, you know, it's going to go off, and then — then that's that — that many seconds went by, and the distance that I had between him and me, that threat wasn't as . . . you know what I mean?