Boston, Rozele Eugene v. State

Affirmed and Opinion filed October 10, 2002 Affirmed and Opinion filed October 10, 2002. In The Fourteenth Court of Appeals ____________ NO. 14-01-01133-CR ____________ ROZELE EUGENE BOSTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 853,496 O P I N I O N Appellant Rozele Eugene Boston was convicted of felony burglary. The trial court found that the knife used during the commission of the burglary was a Adeadly weapon@ under the Texas Penal Code. Appellant does not challenge the burglary conviction, rather, he limits his appeal to the trial court=s finding. We affirm. I.  BACKGROUND In his sole point of error, appellant argues there was legally insufficient evidence or, in the alternative, factually insufficient evidence to support the trial court=s deadly weapon finding. In August of 2000, appellant entered the Baytown home of Shari Barger without her permission. He was subsequently charged with felony burglary. The District Attorney filed a notice of intent to seek an affirmative finding that the knife appellant used during the burglary constituted a deadly weapon. Appellant waived his right to trial by jury and entered a plea of not guilty. After a bench trial, the trial court found appellant guilty of burglary and found the deadly weapon enhancement to be true. Testimony supporting the enhancement came from Barger=s twelve year old son, B.B. At trial, B.B. testified that on the night of the burglary he was in his bedroom when he saw a light in his eyes and then the outline of someone=s headCwhich did not surprise him as he assumed the person was his mother=s boyfriend. After seeing the light a second time, B.B. saw appellant, who forced B.B. into the living room. On the night of the incident, B.B. only told police that a knife appeared on his bed during the course of the burglary. At trial, B.B. offered a few more details, most notably that he saw appellant carrying a knife about an arm=s length away from him. He testified that the weapon put him in great fear after appellant Ashowed it to [him].@ B.B. stated he was afraid appellant would cut him and that he would not live through the burglary. According to B.B., he tried to scream, but appellant covered his mouth to silence him and then ordered him, ADon=t say a word or I=ll put a bullet in your brain.@ Appellant then fled the scene after forcing B.B. to assist him in carrying items from the house to an automobile. II.  STANDARD OF REVIEW Reviewing courts invoke differing tests to determine whether the evidence adduced meets the legal and factual sufficiency tests. See Johnson v. State, 23 S.W.3d 1, 11 n.13 (Tex. Crim. App. 2000) (noting that appellate courts must be Apersistently mindful@ in distinguishing between the standards for legal and factual sufficiency reviews). When an appellant challenges both the legal and factual sufficiency of the evidence, the reviewing court addresses the legal sufficiency challenge first because an affirmative finding on that issue will result in rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. See Nickerson v. State, 69 S.W.3d 661, 668 (Tex. App.CWaco 2002, pet. ref=d). In conducting a legal sufficiency review, an appellate court must view the evidence in the light most favorable to the prosecution and determine if any rational fact finder could have found the crime=s essential elements to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court will examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, the appellate court may not reverse the fact finder=s verdict on grounds of legal insufficiency. See id. In reviewing for factual sufficiency, an appellate court will examine all the evidence without the prism of Ain the light most favorable to the prosecution,@ and will set aside the fact finder=s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). However, an appellate court conducting a factual sufficiency review must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. at 648. Accordingly, we are only authorized to set aside the fact finder=s finding in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. III.  THE KNIFE AS A DEADLY WEAPON Appellant argues that the knife in question cannot be a deadly weapon under the statutory definition. The Texas Penal Code defines a Adeadly weapon@ as either (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) 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) (Vernon 1994 and Supp. 2002). A well-settled rule of Texas criminal jurisprudence is that a knife is not a deadly weapon per se or by design. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991); Nickerson, 69 S.W.3d at 670. However, a knife can be a deadly weapon if in the manner of its use or intended use it was capable of causing death or serious bodily injury. See Tex. Pen. Code Ann. ' 1.07(a)(17)(B); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). Thus, a knife, as an Aassaultive instrument,@ may be considered a Adeadly weapon@ under the Penal Code=s second definition. See Herbert v. State, 631 S.W.2d 585, 586 (Tex. App.CEl Paso 1982, no pet.); but see Miller v. State, 846 S.W.2d 365, 369 (Tex. App.CHouston [14th Dist.] 1992, no pet.) (noting that some varieties of knife can be deadly weapons by design and could qualify under the first definition). Each case must be examined on its own facts to determine whether the fact finder could have concluded from the surrounding circumstances that the knife was used or was to be used as a deadly weapon. Brown v. State, 716 S.W.2d 939, 947 (Tex. Crim. App. 1986). Appellant contends the kitchen knife in question cannot be considered a Adeadly weapon@ by design. The Court of Criminal Appeals has observed: Kitchen knives, utility knives, straight razors, and eating utensils are manifestly designed and made for other purposes and, consequently, do not qualify as deadly weapons unless actually used or intended to be used in such a way as to cause death or serious bodily injury within the meaning of [the statute]. Whether a particular knife is a deadly weapon by design, a deadly weapon by usage, or not a deadly weapon at all, therefore, depends upon the evidence. Thomas, 821 S.W.2d at 620. The State does not argue the knife in question is a deadly weapon by design, and appellant characterizes it as Awhat appears to be a kitchen knife.@ Therefore, the essential question becomes whether there is sufficient evidence to show the appellant used the knife or intended to use it in such a way that it was Acapable of causing death or serious bodily injury.@ See Alvarez v. State, 566 S.W.2d 612, 614 (Tex. Crim. App. 1978); Danzig v. State, 546 S.W.2d 299, 302 (Tex. Crim. App. [Panel Op.] 1977). Although its deadly capabilities constitute the Aevidentiary linchpin,@ other factors become relevant when considering a knife=s usage in any Adeadly weapon@ analysis. See Wade v. State, 951 S.W.2d 886, 892 (Tex. App.CWaco 1997, pet ref=d) In ascertaining whether a particular knife is a deadly weapon by its actual or intended usage, we consider several factors articulated by Texas courts, including: (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) the testimony of the knife's life‑threatening capabilities. See Garcia, 17 S.W.3d at 4. Also relevant are the surrounding circumstances of the knife=s usage, such as any verbal threats by the defendant, the distance between the defendant and the victim, and any witness description of the knife. Wade, 951 S.W.2d at 892. Intent to cause serious bodily injury may also be shown by evidence of Aassertive conduct@ by the attacker wielding the knife. Id. at 892 n.2. Though injuries are among the aforementioned factors to be weighed, wounds need not be inflicted before a knife can be found to be a deadly weapon. Miller, 846 S.W.2d at 369; Ford v. State, 828 S.W.2d 525, 527 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d). IV.  THE KNIFE IN QUESTION In arguing that the knife cannot be a Adeadly weapon,@ appellant seizes upon an alleged conflict in B.B.=s testimony. Interviewed the night of the burglary, B.B. mentioned only that he saw a knife at the end of his bed that had not been there when he went to sleep. At trial, however, he testified that he saw the knife in appellant=s hand and that it was an arm=s length away from him, which caused him great distress. Appellant emphasizes B.B.=s particular phrasing at this point: AHe just showed it to me.@ Appellant=s argument is two-fold: If the knife was just on the bed during the course of the burglary, it was simply Aa knife on a bed@ and therefore not a Adeadly weapon.@ If the appellant actually held the knife, however, then he merely possessed it, as the only witness remarked that Ahe just showed it to me.@ Assuming arguendo that B.B.=s initial statement to police conflicts with his trial testimony, any factual conflict would be resolved by the fact finder. Having waived his right to a trial by jury, appellant chose the trial court as the finder of fact. When sitting as the sole trier of fact, the trial court becomes the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987). He is authorized to accept or reject any or all of the testimony of the witnesses for either the State or the accused. Id. When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prosecution. See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Thus, by affirmatively finding that the knife was indeed a deadly weapon, the trial court chose to believe B.B.=s trial testimony over any alleged discrepancies that appellant sought to illicit during cross examination. Despite appellant=s contention that simply Ashowing@ the knife to the victim removes it from the realm of the statute, this court observed almost a decade ago that Amerely showing a knife to a victim constitutes >use= of the knife@ under the statute. See Soto v. State, 864 S.W.2d 687, 691 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d).[1] In stating that proposition in Soto, this court relied upon Tisdale v. State, in which the defendant came within physical contact of the victim and held a knife Awithin arm=s reach of the victim=s face and torso.@ 686 S.W.2d 110, 115 (Tex. Crim. App. 1984) (on rehearing) (en banc) (AThe evidence presented shows that appellant=s >use= of the knife was by showing it to his victim.@). In its original opinion, the Tisdale court noted that the defendant made no gestures with the knife and merely held it in his right hand. Id. at 111B12. The Tisdale court originally found such evidence insufficient to support a finding that the knife was a deadly weapon under the circumstances for fear that a contrary holding would elevate a knife to a deadly weapon per se. Id. at 112. However, on rehearing, the court observed that Awhere one person uses or exhibits a knife during the course of a robbery in order to threaten or place another in fear of imminent bodily injury or death, a rational trier of fact could find beyond a reasonable doubt that the knife was a deadly weapon in the manner of its use or intended use.@ Id. at 114. Thus, presentment of the knife coupled with the fear of the victim are sufficient to constitute a threat by the accused. See Soto, 864 S.W.2d at 692 ; see also Hatchett v. State, 930 S.W.2d 844, 848B49 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (noting that defendant=s threatening statement and close proximity were factors contributing to weapon=s deadliness). In Billey v. State, the Amarillo Court of Appeals wrote: [E]vidence is sufficient if a knife is capable of causing death or serious bodily injury or if it is displayed in a manner conveying an express or implied threat that serious bodily injury or death will be inflicted if the desire of the person displaying the knife is not satisfied. Where the victim testifies that he or she was in fear of serious bodily injury or death, a verbal threat by the accused is not required for the fact finder to conclude that threats were actually made. 895 S.W.2d 417, 422 (Tex. App.CAmarillo 1995, pet. ref=d). According to B.B.=s trial testimony, appellant threatened him with death and covered his mouth with a sock-covered hand, a harrowing experience for any individual, especially a young boy late at night. There can be little doubt that a burglar=s use of a kitchen knife to silence a child victim in his home meets the deadly weapon test under the case law. Under these circumstances, we cannot disagree with the trial court=s finding that the knife was a deadly weapon by its actual or intended usage. CONCLUSION We find the evidence legally and factually sufficient to support the trial court=s finding. Based on the evidence adduced at trial, a rational trier of fact could conclude that the enhancement was proven beyond a reasonable doubt. Further, the fact finder=s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant=s sole point of error. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Opinion filed October 10, 2002. Panel consists of Justices Edelman, Seymore, and Guzman. Do Not Publish C Tex. R. App. P. 47.3(b). [1] In his brief, appellant contends that it is Anot reasonable@ that Appellant would threaten to put a bullet in the head of a child while holding a knife and not a gun. Thus, according to that bizarre non-sequitur, the knife cannot be a Adeadly weapon@ by its usage because the threat referenced a nonexistent firearm and not a dagger. We find this argument unpersuasive.