Ehiemua, Romeo Ehiemua v. State

Affirm and Opinion filed January 6, 2005 Affirm and Opinion filed January 6, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-03-00944-CR ____________ ROMEO EHIGIE EHIEMUA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 230th District Court Harris County, Texas Trial Court Cause No. 928548 O P I N I O N Appellant Romeo Ehigie Ehiemua was charged by indictment with two counts of aggravated sexual assault. The jury returned a general verdict of guilty and assessed punishment at 20 years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant asserts six points of error on appeal. In points of error one through four, appellant contends the evidence is legally and factually insufficient to support his conviction under the first and second paragraphs of the indictment because the State failed to prove he threatened complainant with force and violence. In his fifth and sixth points of error, appellant argues the evidence is legally and factually insufficient to support his conviction because the State failed to prove the knife used constituted a deadly weapon. We affirm the judgment of the trial court. FACTUAL BACKGROUND The complainant, S.I.,[1] a high school senior, was alone at a bus stop when appellant drove up, got out of his car, and tried to talk to her. When she did not respond, appellant put a knife next to her leg. Appellant told S.I. she had an attitude problem and if she made him mad, he was going to shed her blood. He pushed S.I. into his car and drove to a house to drop off a child who was riding in the back seat. Appellant parked in the street and walked to the front door with his shoulders and head turned so he could still see her. As appellant was walking to the door, S.I. inconspicuously tried to open the car door but could not. A person answered the door, appellant handed over the child, and he returned to the car. Thereafter, appellant drove S.I. to his apartment. When appellant exited his vehicle, S.I. attempted to escape through his driver-side door, but appellant grabbed her. S.I. began to scream and appellant pulled her toward his apartment. Before reaching the door of his apartment, S.I. managed to free herself from his grasp, started to run, and fell forward scraping her elbow. Appellant dragged S.I. inside, placed her on the couch, and locked the door. Inside, appellant went to the kitchen and returned with a larger knife. He held the knife within arm=s length of S.I. forehead and yelled at her. He then led her to his bedroom while holding the knife at her back. Inside his bedroom, appellant told S.I. to disrobe. S.I. refused until appellant raised the knife and told her he was Agoing to get it over with because she was giving him a hard time.@ After S.I. undressed, appellant did the same and played a pornographic videotape on his television. Appellant told S.I. to replicate the acts in the video. Still crying, S.I. told appellant she did not know how to. Appellant pushed S.I. on the bed, approached her while holding the knife in his hand, and placed his penis in her mouth. After making S.I. perform oral sex, appellant asked S.I. to lie back on the bed and open her legs. She obeyed but told him the knife made her uncomfortable. Appellant placed the knife beside the bed and told S.I. he would let her go if she cooperated, and if she did not, he would kill her. Appellant spread her legs and had vaginal intercourse with her for approximately twenty minutes. During that time, S.I. continuously tried to shut her legs and falsely told him she had a disease. After intercourse, appellant made S.I. take a shower as he watched. After her shower, appellant=s attitude improved. He told S.I. it would not matter if she told anyone about the encounter because he was an undercover detective. Appellant then drove her to a mall, gave her a card with his name and number, and left. S.I. called her sister for a ride home. In the car, S.I. told her sister she had been kidnaped. When S.I. and her sister arrived at their house, her sister called the police. S.I. met with the police and went to the hospital where she was given a rape kit test. SUFFICIENCY OF THE EVIDENCE In all six of appellant=s points of error, he contends the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n.12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App.1993). The jury is the sole judge of the credibility of the witnesses, and chooses whether to believe or disbelieve all or part of a witness=s testimony. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.1991). Therefore, if any rational trier‑of‑fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In conducting a factual sufficiency review, we view all the evidence in a neutral light, without favoring either party. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000). We will set aside the verdict only if (1) the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); Roy v. State, Nos. 14-02-00909-CR, 14-02-00910-CR, 2004 WL 1607489, at *4 (Tex. App.CHouston [14th Dist.] July 20, 2004, no pet.). When reviewing the evidence, we must give appropriate deference to the jury findings in order to avoid intruding on the fact-finder=s role as the sole judge of the weight and credibility of the evidence. Johnson, 23 S.W.3d at 7. Therefore, unless the record reveals a different result is appropriate, we Amust defer to the jury=s determination concerning what weight to give contradictory testimonial evidence, because resolution often turns on an evaluation of credibility and demeanor.@ Id. at 8. Here, to secure a conviction for aggravated sexual assault in accordance with the indictment, the State must prove the defendant intentionally or knowingly either: (1) caused penetration of the female sexual organ of another by any means, without that person=s consent, or (2) caused the penetration of the mouth of another person by the sexual organ of the actor, without that persons consent. Tex. Pen. Code Ann. ' 22.021(a)(1)(A)(i), (ii) (Vernon 2003) (emphasis added). The lack of consent can be proven by the threat or use of physical force or violence. Id. ' 22.011(b)(1), (2). Aggravated sexual assault also requires proof of an aggravating element. See id. ' 22.021(a)(2)(A)(i)B(vi). In the instant case, the first paragraph of the indictment alleges two additional elements, either of which is sufficient to support aggravated sexual assault. The two additional elements are the defendant: (1) by acts or words placed the victim in fear that serious bodily injury would be imminently inflicted on her; and (2) used and exhibited a deadly weapon in the course of the same criminal episode. In the second paragraph of the indictment, the additional aggravating element is that defendant used and exhibited a deadly weapon in the course of the same criminal episode. A. Consent: Threat of Force and Violence In his first, second, third, and fourth points of error, appellant contends the evidence is legally and factually insufficient to support his conviction under the first and second paragraphs of the indictment because the State failed to prove that he threatened the complainant with force and violence and that he used force and violence. Specifically, appellant argues the only evidence that he made a threat was S.I.=s testimony. He denied making a threat and said it was consensual. Appellant=s first two points of error challenge the legal and factual sufficiency of the evidence supporting the jury=s conclusion appellant=s penetration of complainant=s mouth and female sexual organ was without her consent. As noted above, Texas Penal Code section 22.021 refers back to section 22.011 for purposes of determining whether the aggravated sexual assault was without the consent of the other person. See id. ' 22.021(c) (referring to section 22.011(b)). That section contains ten factors used to determine lack of consent to a sexual assault. The State used factor two which is as follows: the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat. Id. ' 22.011(b)(2). S.I. testified she did not consent to any sexual act with appellant. She claimed appellant threatened her with two knives. S.I. testified that appellant told her he would Ashed her blood@ and that he would Aend it all.@ Appellant=s knives and threats kept her in fear throughout the ordeal. S.I. believed appellant would carry out the threats if she did not perform the requested sexual acts. When she did not cooperate with appellant=s demands, he brandished the knife and said he was going to Aend it all.@ However, appellant contends the encounter was consensual and that he did not make any threats. The testimony of a victim, standing alone is sufficient to support a conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). AA decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Moreover, the jury is the sole judge of credibility of the witnesses at trial. See Johnson, 23 S.W.3d at 6. There is nothing in the record to suggest the jury=s resolution of this conflicting testimony was not reasonable. Viewing the evidence in a light most favorable to the verdict, we find sufficient evidence to permit a rational trier of fact to conclude appellant threatened S.I. with force and violence beyond a reasonable doubt. Similarly, after considering the evidence in a neutral light, the evidence is not too weak to support the finding of this element demonstrating lack of consent beyond a reasonable doubt, and contrary evidence was not so strong to conclude the reasonable doubt standard could not be met. Therefore, appellant=s first and second points of error are overruled.[2] B. Aggravated Sexual Assault: Use of a Deadly Weapon In his fifth and sixth points of error, appellant argues the evidence is legally and factually insufficient to support his conviction because the State failed to prove the knife used constituted a deadly weapon.[3] Specifically, appellant claims the evidence is insufficient to prove he used a knife, or, if a knife was used, that the knife in question was a deadly weapon. A knife is not a deadly weapon per se. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). However, the State may show a knife to be a deadly weapon if the manner of its use or intended use is capable of causing serious bodily injury or death. Hawkins v. State, 605 S.W.2d 586, 588 (Tex. Crim. App. 1980). 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, such as verbal threats and gestures; (3) the nature or existence of inflicted wounds; (4) the testimony of the knife=s life-threatening capabilities; and (5) the physical proximity of the accused and the victim. See Thomas, 821 S.W.2d at 620; Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d); Wade v. State, 951 S.W.2d 886, 892 (Tex. App.CWaco 1997, pet. ref=d). Although injuries are among factors to be weighed, wounds need not be inflicted before a knife can be found to be a deadly weapon. Miller v. State, 846 S.W.2d 365, 369 (Tex. App.CHouston [14th Dist.] 1992, no pet.). In support of his argument, appellant contends: (1) the knives were never recovered; (2) the complainant was not injured by a knife; and (3) there was no testimony regarding the length of the blades or their relative sharpness. We find no merit in appellant=s argument. First, the State is not required to offer the deadly weapon into evidence to meet its burden of proof. Victor v. State, 874 S.W.2d 748, 751 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (citing Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. [Panel Op.] 1982)). Second, it is not necessary that the knife inflict wounds. Birl v. State, 763 S.W.2d 860, 863 (Tex. App.CTexarkana 1988, no pet.); see Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). Finally, contrary to appellant=s contention, there was testimony regarding the length of the blades and their relative sharpness. In the present case, S.I. testified appellant used two knives in his assault. S.I. testified to the size of both of the knives. The first knife was six inches long and used to force S.I. into his car.[4] The second knife, retrieved from appellant=s kitchen, was seven to eight inches long and used to threaten S.I. to submit to his demands. Appellant repeatedly threatened S.I. with both of the knives. He held the first knife at S.I.=s leg and threatened to Ashed her blood.@ Appellant held the second knife within arm=s reach of S.I.=s forehead, put it to her back while leading her to his bedroom, brandished it when S.I. would not undress,[5] and held the knife while forcing her to perform oral sex. S.I. testified that throughout the ordeal, the use of the knife kept her in fear. However, appellant claims the encounter was consensual and that he did not use a knife. The record reflects S.I. suffered no physical wounds from the knife. There is nothing in the record to suggest the jury=s resolution of this conflicting testimony was not reasonable. Viewing the evidence in a light most favorable to the verdict, we find sufficient evidence to show beyond a reasonable doubt that appellant used or exhibited a deadly weapon during the sexual assault. Similarly, after considering the evidence in a neutral light, the evidence is not too weak to support the finding the knives were deadly weapons beyond a reasonable doubt, and contrary evidence was not so strong to conclude the reasonable doubt standard could not be met. We overrule appellant=s fifth and sixth points of error. The judgement of the trial court is affirmed. ____________________________ John S. Anderson Justice Judgment rendered and Opinion filed January 6, 2005. Panel consists of Justices Anderson, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] To protect the victim=s identity, in the opinion we refer to her by her initials. [2] Because we determine the evidence is legally and factually sufficient to prove appellant threatened the complainant with force and violence, we need not determine whether the evidence is sufficient to establish appellant used force and violence. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). Thus, we do not reach appellant=s third and fourth points of error. [3] A deadly weapon is anything manifestly designed, made, or adapted for the purposes of inflicting serious bodily injury; or, 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)(A),(B) (Vernon 2003). [4] S.I. testified she saw the point of the knife and thought it was sharp. [5] While wielding the knife, appellant told S.I. he was Agoing to get it all over with because she was giving him a hard time.@