Craig Leonard Junious v. State

Opinion issued June 21, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00954-CR ____________ CRAIG LEONARD JUNIOUS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1018937 MEMORANDUM OPINION A jury found appellant, Craig Leonard Junious, guilty of the offense of aggravated assault, (1) and, after he pleaded true to the allegations in two enhancement paragraphs that he had two prior felony convictions, the trial court assessed his punishment at confinement for twenty-five years. In two points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction. We affirm. Factual Background Kimberly McGee, the complainant's sister, testified that on March 5, 2005, the complainant came to her house at around 2:30 or 3:00 a.m. She stated that this was unusual because normally the complainant spent the whole night with her boyfriend, appellant, and "we know for a fact when she comes home in the middle of the night like that, something is wrong." When the complainant arrived at the house, although not crying, she appeared upset, scared, and nervous. After speaking with the complainant and going back to bed, Kimberly heard appellant "beating at the door." Appellant continued knocking until the complainant went to the front door, and, at this time, Kimberly got out of bed. After the complainant answered the door, she and appellant argued. The complainant "was very scared" and told appellant to leave the house. Kimberly further testified that from the hallway, she could see straight out to the front door. As she was coming down the hallway, she saw the complainant trying to get appellant out of the doorway, telling him to "get back, do not come in here." Appellant, with his right hand, pulled a knife out of his pocket. Kimberly described the knife as "[l]ike, a steak knife." The complainant held up appellant's arm, and appellant appeared to be "[t]rying to stab" the complainant. When asked if she could tell whether appellant was trying to stab her or the complainant, Kimberly testified, "At that point it looked like he was trying to stab [the complainant]." Kimberly explained that, at that instant, she was not close enough to be hit by the knife. Upon her warning the complainant that appellant had a knife, appellant reacted by "pushing [the complainant] out of the way and he start[ed] coming for [Kimberly]." Kimberly's daughter and daughter-in-law "[h]ollered out and screamed out." Kimberly told her daughter to call for emergency assistance, and the complainant's son eventually tried to help them. Then, after appellant came to Kimberly, they "squabbled a little bit, with [the complainant] still in between" them. Kimberly tried "[t]o get the knife away" because it appeared that people were in danger of being cut and the complainant "was holding the blade of the knife." Kimberly saw the complainant's hand get cut, but she was unable to remove the knife from appellant's hand. Eventually, they "fell to the floor" with the complainant "at the bottom," appellant "in the middle," and Kimberly "on him." The complainant was "pinned down" on the bottom, and others in the house held down appellant. When police officers arrived, they were able to remove the knife from appellant's possession. Kimberly explained that appellant's actions made her feel threatened, based not only on the knife, but also on past events. After appellant's arrest, Kimberly signed an affidavit of nonprosecution. Jackie McGee, the complainant, testified that on the night of March 5, 2005, she and appellant had walked to a club and were there for approximately four hours. She explained that appellant had been her boyfriend for "about nine or ten months" and she would spend "[e]very night at his house" and "go home, get some more change of clothes and . . . go back." While they were at the club, appellant became upset after the complainant "was hugging on some old mens." She explained that "[h]e was angry at the club, then [appellant] was still kind of--calmed down when [they] got to [appellant's] house, but he still kind of angry and he got to want to fight." After they both lay down to sleep, the complainant got up at 3:00 a.m., left appellant's house, and walked to her sister's house, located "three or four blocks away." At the time, she was not afraid, but she went to her sister's house in order to "let [appellant] cool off" and because she had to go to work the next day. Once inside, as she was getting ready to take a bath, she heard a knock at the door. Appellant "pushed the door open" and, after he entered the house, the complainant "tried to push" him to get him out of the house. The complainant heard her sister warn her that appellant had a knife, and she saw appellant get a knife out of his pocket, but could not recall which pocket. (2) After appellant pulled the knife out of his pocket, she told appellant, "No, baby, give me the knife," and appellant cut her with the knife. Appellant came down with the knife, and she received the cut on her hand because she "was trying to take" the knife. (3) She described the cut as "just a little slice." Eventually, Kimberly arrived at the scene. During cross-examination, the complainant testified that after she opened the door, appellant came in, tried to move her out of the way, and Kimberly came out of the hallway. Kimberly and appellant "start[ed] hitting," and "they just had him on the floor and they was around." She noted that she was never on the floor. She told the others in the house not to all jump on appellant and he would calm down. The complainant also asked for someone to call for emergency assistance. She explained that when appellant was "on the floor and they was on him, he come out his pocket with a knife" and told everyone he had a knife. Others in the group had a stick, but she "wouldn't let them hit [appellant] because they was too many on him." When appellant pulled out the "steak knife," she was "[n]ot really" afraid that he was going to stab her or cause serious bodily injury. When the complainant grabbed appellant's hand, the knife cut her, but she suffered no other wounds. In fact, she thought that the officers arrested appellant because he was intoxicated. The complainant explained that she did not think appellant was going to stab her, did not think appellant was going to cause serious bodily injury, and she was not afraid of appellant that morning. Houston Police Department Officer M.B. Malone testified that, on March 5, 2005, he responded to a call for an "assault in progress." When he arrived at the scene, approximately three minutes after being dispatched, a female at the door "motioned" for Malone to come into the residence. The female "appeared as if she wanted [Malone] to get there in a hurry." When he entered the house, he saw a "fairly large pile of people in the hallway," with "a female laying [sic] on her back on the floor" and appellant "on top of her, on his chest, laying [sic] on top of her." Appellant "was on his stomach" and "[h]is arms were outstretched." Malone was later able to identify the female on the floor as the complainant. When asked whether it appeared that anyone was assaulting appellant, Malone stated that it "appeared more as if [appellant] was being restrained or held down." Appellant "had a knife in his hands," which Malone described as a "regular kitchen steak knife." After examining the knife on the witness stand, Malone testified that, in his opinion, there was blood on the knife "based upon what [he] saw at the scene, the apparent injury on the complainant's hand," and "[w]hat appeared to be blood on the knife at the scene that particular night." He explained that by the time he arrived at the scene, the complainant had "already wrapped her hand with some type of gauze or cloth or something," and that her hand "appeared to have been bleeding." Officer Malone further testified that he talked to the complainant "briefly in the house after bringing [appellant] out to the police car." He then spoke with the complainant again outside of the home. The complainant appeared to be upset, and she told him that "earlier in the night they were at a club." She said that appellant "had been using crack cocaine that night and had got into an argument." She walked home from the club, and a "[c]ouple hours later" appellant "appeared at the front door." The complainant opened the door to speak with him, but appellant "forced his way in the house." Both she and her sister asked appellant to leave, but he refused. He then "pulled a knife from one of his pockets and came at them with the knife." The complainant told Malone that she got the cut on her hand when "she had attempted to defend herself by putting her hand up and [appellant] swung the knife and sliced her hand." When Malone spoke with the complainant, "[s]he seemed as if she had been crying," was "trembling," "kind of paused when she spoke," and appeared afraid that appellant was going to hurt her. At that time, the complainant indicated to Malone that she wanted appellant prosecuted. She also wanted a protective order entered against appellant. Standard of Review We review the legal sufficiency of the evidence by viewing 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. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We note that the trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). "Threat" to Complainant In his first point of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated assault because the evidence is insufficient to prove that appellant "threatened [the complainant] by the use or exhibition of a deadly weapon." 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. 2006). Appellant argues that the State failed to meet its burden to prove that he intended to place the complainant "in apprehension of imminent bodily injury by the use and exhibit[ion] of a knife" because "[a]ll through the record [the complainant] testifies that she was not afraid, not threatened or in fear of the knife." He asserts that the "presence of the knife did not instill fear or threaten" the complainant. Appellant also argues that it would be "reasonable to conclude that the threat, if any, was directed toward the [complainant's] sister, [Kimberly]," because the evidence shows that Kimberly did not like appellant and disliked his presence inside her home. However, we note that it is not necessary that the complainant actually be placed in fear of imminent serious bodily injury; it is the appellant's threat, made with the intent to place the complainant in fear of imminent serious bodily injury, that constitutes the offense. Trevino v. State, 752 S.W.2d 735, 736-37 (Tex. App.--Eastland 1988, pet. dism'd). Here, Kimberly testified that the complainant held up appellant's arm as he tried to stab the complainant. Kimberly told her daughter to call for emergency assistance, and the complainant's son tried to help Kimberly and the complainant. Kimberly tried to take the knife away from appellant because she was afraid of people being cut and the complainant was holding the blade of the knife. It was not until police officers arrived at the scene that the knife was removed from appellant's possession. Kimberly also testified that, based on his use of the knife and past events, appellant's actions made her feel threatened. Officer Malone testified that when he arrived at the scene, the complainant appeared to be upset, had been crying, and already had wrapped her hand "with some type of gauze or cloth." Malone also stated that the complainant appeared afraid that appellant was going to hurt her, and she indicated to him that she wanted appellant prosecuted. Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that appellant threatened the complainant by the use or exhibition of a deadly weapon. Furthermore, viewing the evidence neutrally, we conclude that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof in support of the verdict is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is legally and factually sufficient to prove that appellant threatened the complainant by the use or exhibition of a deadly weapon. We overrule appellant's first point of error. Deadly Weapon In his second point of error, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated assault because the State did not prove that "the knife allegedly used by [a]ppellant was a deadly weapon." 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. 2006). Although a knife is not a deadly weapon per se, a knife may be a deadly weapon based on the nature of its use or intended use. Miller v. State, 177 S.W.3d 1, 4 (Tex. App.--Houston [1st Dist.] 2004, no pet.); 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 State can, without expert testimony, prove a particular knife to be a deadly weapon by showing its size, shape and sharpness, the manner of its use, or intended use and its capacity to produce death or serious bodily injury. Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). The physical proximity of the accused and the victim during the commission of the offense may also be considered. See id. Whether a particular knife is a deadly weapon depends upon the evidence presented at trial. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). Appellant argues that the State failed to prove that the knife was a deadly weapon because the knife was "a steak knife"; the "testimony describing [a]ppellant's use of the knife is brief, vague, and very non descriptive"; although "the knife was admitted into evidence, none of the State's witnesses testified about its sharpness"; the "nature or existence of the wound in this case does not qualify as serious bodily injury" because the "wound was so minor that [the complainant] did not even infer that she suffered pain"; there "was no testimony from either of the State's witnesses as to the capabilities of the knife as being life threatening or its ability to inflict serious bodily injury"; and there "was no testimony that [a]ppellant used threats or words." A "steak knife" is "a knife with a serrated blade." The New Oxford American Dictionary 1666 (1st ed. 2001). It is true that the complainant did testify that she was not afraid of appellant and did not think that appellant was going to stab her or cause serious bodily injury. When appellant pulled the knife out of his pocket, she told him, "[n]o, baby, give me the knife." The complainant described the laceration that she received on her hand as "just a little slice." Although she testified that she received the cut because she was trying to take the knife out of appellant's hand, she also testified that she was acting in "self-defense." Moreover, Kimberly testified that, as the complainant and appellant were arguing, the complainant "was very scared" and appellant appeared to be "trying to stab" the complainant. Appellant's actions made Kimberly feel threatened, based not only on the knife, but also on past events. Additionally, Officer Malone testified that the complainant appeared to have been afraid that appellant was going to hurt her. The complainant told him that she received the cut on her hand when "she had attempted to defend herself by putting her hand up" and appellant "swung the knife and sliced her hand." Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that, based on the manner in which appellant used the steak knife, it was capable of causing death or serious bodily injury and was a deadly weapon. Furthermore, viewing the evidence neutrally, we conclude that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof in support of the verdict is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is legally and factually sufficient to prove that the steak knife used by appellant was a deadly weapon. We overrule appellant's second point of error. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Nuchia, Jennings, and Higley. Do not publish. Tex. R. App. P. 47.2(b). 1. See Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2) (Vernon Supp. 2006). 2. On re-direct examination, the complainant testified that appellant pulled out the knife "[w]hen he came through the door." 3. On re-direct examination, the complainant testified that she got cut when she put her hand up to defend herself.