Billy Ray Risley v. State

Opinion issued June 9, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00732-CR __________ BILLY RAY RISLEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 966,167 MEMORANDUM OPINION A jury found appellant, Billy Ray Risley, guilty of the offense of aggravated assault and, after finding true the allegations in two enhancement paragraphs that appellant had two prior felony convictions, assessed his punishment at confinement for 30 years. In three issues, appellant contends that (1) the evidence was factually insufficient to support a finding that appellant used a deadly weapon, (2) the evidence was factually insufficient to show that appellant committed the offense of aggravated assault, and (3) the trial court erred in overruling appellant’s objection to the State’s use of a knife for demonstrative purposes. We affirm. Factual and Procedural Background Francisco Alvarez, the complainant, testified that, on October 26, 2003, he was eating at a restaurant when he heard the alarm on his van sound. When he went outside to the parking lot, he saw appellant attempting to open the door of his van. The complainant asked appellant what he was doing and appellant asked the complainant if the van was his. The complainant told appellant that the van was his, and appellant then pulled a knife and told the complainant that he was going to kill him. When the complainant saw that appellant was going to throw the knife at him, he ran away. Appellant threw the knife at the complainant, which passed close to the complainant’s head. The complainant described the knife as a “silver sword knife,” like a knife used in a kitchen to cut vegetables, and not merely a butter knife. The complainant explained that appellant appeared to be intoxicated at the time of the offense. After appellant threw the knife, the complainant turned around and saw that appellant was pursuing him. The complainant ran to a public phone and called for emergency assistance. Houston Police Officer A. Alcantara arrived on the scene within five minutes, and the complainant and the manager of the restaurant told the officer what had happened. Another officer located appellant at a nearby shopping center, returned to the scene with appellant, and the complainant identified appellant as the man who had threatened him. Officer Alcantara testified that, when he arrived at the scene, the complainant, who was frightened and upset, provided him with a description of the suspect who had threatened him. Another officer quickly located appellant, who matched the description, at a nearby commercial establishment. The officers restrained appellant and returned with him to the scene. The complainant immediately identified appellant as the person who had threatened him. The officers conducted a search of the area, but were unable to locate the knife. Deadly Weapon In his first issue, appellant contends that the evidence is factually insufficient to support a finding that he used a deadly weapon during the commission of the assault. We review a challenge to the factual sufficiency of the evidence by examining all of the evidence neutrally, not in the light most favorable to the verdict, and we will set aside the verdict “only if the evidence is so weak that the verdict is clearly wrong or manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). Unless the record clearly reveals that a different result is appropriate, we must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because the jurors were in attendance when the testimony was delivered. Id. A person commits the offense of aggravated assault if the person intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2004-2005). A deadly weapon is defined as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2004-2005). Although a knife is not a deadly weapon per se, a knife can be found to be a deadly weapon based on the nature of its use or intended use. Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). To determine whether a particular knife is a deadly weapon, courts have considered (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. The physical proximity of the accused and the victim during the commission of the offense may also be considered. See Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). Appellant asserts that, because the knife inflicted no wounds and because the State failed to present evidence showing the knife’s capacity to cause serious bodily injury or death, the evidence was factually insufficient to prove that the knife allegedly used in the commission of the offense was a deadly weapon. However, the complainant testified that the knife was “like a kitchen knife,” and like the kind of knife “used to cut vegetables.” The complainant also testified that the knife was a “silver sword knife,” and not merely a butter knife. Officer Alcantara testified that at the scene, immediately after the incident, the complainant described the weapon used by appellant as a “large knife.” Thus, the State presented some evidence concerning the knife’s characteristics. The complainant also testified that, when he walked over to his van to determine why his alarm was sounding, he discovered appellant attempting to open the van’s door, and that, when appellant saw him, appellant pulled the knife and stated “I’m going to kill you.” The complainant further testified that as he ran away from appellant, appellant threw the knife at him, the knife passed “close to his head,” and appellant continued to pursue him as he attempted to run. While the complainant did not specify how close he was to appellant when he was threatened, the complainant’s testimony also established that he was in relatively close physical proximity to the appellant at the time of the assault. Officer Alcantara testified that, when he arrived at the scene, the complainant was frightened and upset. The State presented evidence that, based on the manner in which appellant used the knife, it was capable of causing death or serious bodily injury, and was, therefore, a deadly weapon. Even though the actual knife was never recovered, the State is not required to introduce the knife into evidence to meet its burden of proof. Victor v. State, 874 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Additionally, the State is not required to show that any wounds were inflicted to prove that a knife is a deadly weapon. Petrick v. State, 832 S.W.2d 767, 770 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Viewing all of the evidence neutrally, we conclude that the evidence was not so weak that the verdict was clearly wrong or manifestly unjust and that the contrary evidence was not so strong that the standard of proof beyond a reasonable doubt could not have been met. Accordingly, we hold that the evidence was factually sufficient to support the finding that appellant used or exhibited a deadly weapon during the commission of the assault. We overrule appellant’s first issue. Factual Sufficiency In his second issue, appellant argues that the evidence was factually insufficient to support his conviction because (1) the only evidence linking him to the offense was the testimony of the complainant, (2) when he was located by the officers several minutes after the commission of the offense, he did not flee and did nothing to otherwise indicate that he was involved in the offense, and (3) the knife allegedly used by appellant was never found. However, the complainant testified that when he confronted the appellant, who was attempting to open the van’s door, appellant pulled out a knife and threatened to kill him. The complainant further testified that when he attempted to run away, appellant threw the knife at the complainant, and that the knife passed close to the his head. Officer Alcantara testified that he arrived on the scene within five minutes after receiving the complainant’s call for emergency assistance, and that other officers quickly located appellant, who matched the complainant’s description of the suspect, at a nearby shopping center. Officer Alcantara further testified that when he returned with appellant to the scene, the complainant identified appellant, without hesitation, as the man who had threatened him. As we have previously stated, credibility issues are for the jury, not this Court. Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). Moreover, the State was not required to present the actual knife used in the commission of the assault nor was it required to prove that appellant attempted to flee when located by the officers. Based on the record presented, we hold that the evidence was factually sufficient to support the jury’s verdict that appellant intentionally or knowingly threatened the complainant with imminent bodily injury and used or exhibited a deadly weapon during the commission of the assault. We overrule appellant’s second issue. Demonstrative Evidence In his third issue, appellant argues that the trial court erred in admitting a knife introduced by the State for demonstrative purposes because “there is a question as to whether the knife’s probative value outweighed any inflammatory effect.” He further asserts that the trial court erred in not instructing the jury that the knife introduced by the State was being introduced solely for demonstrative purposes. It is within the trial court’s discretion to admit into evidence a similar type weapon or instrument used in the commission of an offense if it is relevant and material to an issue in the case, is not overly inflammatory, and the original, if available, would be admissible. Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. 1981); Fletcher v. State, 902 S.W.2d 165, 166 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). The introduction of a weapon described as “like,” “similar to,” “pretty much the same,” “more or less the same,” “something like,” “not unlike,” “comparable to,” or “resembling,” or described by the use of comparable words is admissible as an aid to the jury in interpreting and understanding oral testimony adduced at trial. Simmons, 622 S.W.2d at 113-114; Fletcher, 902 S.W.2d at 167. The lack of positive identification of a weapon or instrumentality used during the commission of an offense affects its weight rather than its admissibility. Id. Here, when the State first offered the knife for demonstrative purposes, appellant objected that the State had not established that the offered knife was similar to the knife used during the assault. The trial court sustained appellant’s objection. The complainant then provided a description of the knife and testified that the knife offered by the State looked “something like” the knife used by appellant, but the complainant could not testify whether the knife used by appellant was the same size as the offered knife. The State again offered the knife “for demonstrative purposes only.” The trial court admitted the knife, for demonstrative purposes, over appellant’s objection. Whether and how appellant used or exhibited a knife during the commission of the assault was a relevant and important issue in the case, and the record indicates that the knife introduced by the State was used to assist the jury in understanding the complainant’s testimony. Furthermore, the knife allegedly used in the offense, which would have been admissible, was not available. And while the complainant could not testify that the knife offered by the State was an exact replica of the knife used during the assault, nothing in the record indicates that the probative value of the knife was substantially outweighed by unfair prejudice or any possible inflammatory effect. Tex. R. Evid. 403; Simmons, 622 S.W.2d at 113. Thus, we hold that the trial court did not abuse its discretion in admitting the knife for demonstrative purposes. In regard to appellant’s contention that he was entitled to a limiting instruction that the knife was admitted solely for demonstrative purposes, we note that “when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Tex. R. Evid. 105(a). However, “in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.” Id. Here, appellant did not ask the trial court to give such an instruction and, therefore, has waived this complaint on appeal. Id.; see also Waters v. State, 743 S.W.2d 753, 758 (Tex. App.—San Antonio 1987, no pet.). We overrule appellant’s third issue. ConclusionWe affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Chief Justice Radack and Justices Jennings and Hanks. Do not publish. Tex. R. App. P. 47.2(b).