Francisco Aramdula Tucker v. The State of Texas--Appeal from 385th District Court of Midland County

Opinion filed August 9, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00084-CR

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FRANCISCO ARAMDULA TUCKER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR30803

  O P I N I O N

Francisco Aramdula Tucker appeals his conviction by a jury of the offense of aggravated assault with a deadly weapon by causing bodily injury. The jury assessed his punishment at twenty years in the Texas Department of Criminal Justice, Institutional Division. Tucker contends that the evidence is legally and factually insufficient to support his conviction. We affirm.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Joann L. Biscarro testified that on May 22, 2005, she and her daughter went to her sister=s house to take her lunch. She said that, when she arrived, her sister opened the door for her and was happy to see her. She indicated that, after she put down a bag of groceries, she went back downstairs to pick up the sandwich she had brought her sister. She related that, when she got back upstairs, Tucker attacked her Aout of the blue@ before she had the opportunity to give her sister the sandwich. She testified that he stabbed her once near her heart, once near her liver, and once in her right arm. She said, AI would have been dead, because it was too close to my heart and it was too close to my liver.@ She confirmed that she was so scared that she thought she was just going to die there.

Joann testified that, after stabbing her, Tucker pushed her all the way down the stairs. She said that her daughter ran up to her when she was at the bottom of the stairs. She indicated that, when her daughter started to go up the stairs, she told her, ANo, Tracy. Look, I=m full of blood, Tracy.@ She stated that, when her daughter asked Tucker why he had done that to her mother, he said, AI=ll kill you; I=ll kill you, too.@ She estimated that the knife was a big knife, about eight inches long and two inches wide. She said that, when she asked someone for a towel, they refused saying Tucker had Athreatened me not to help you.@ She insisted that she had not seen Tucker for three years before the stabbing.

Tracy Biscarro, Joann=s twenty-three-year-old daughter, testified that she and her mother went to visit her aunt Margarita. She testified that, when her mother went up to take her sister a sandwich, she saw her hit her back on the rail and fall head first down the stairs. She related that her mother never went inside the house at that time. She indicated that, when she looked up, she saw her aunt at the door but no one else. She said that, when she ran over to where her mother was, she could see she was bloody from head to toe. She related that she then saw Tucker standing, facing her with a bloody knife in his hand. She testified that it was long and thick, almost like a butcher knife. She said that he told her that, if she got any closer, he would kill her. She indicated that, when she went to help her mother to the car, her mother was Acovered from blood@ and that she Awas losing too much blood.@ She related that, before the ambulance arrived, her mother started to tell her things, Alike if she didn=t make it, she wanted,@ and started telling her about her nephew and family back in Dallas because Ashe thought she wasn=t going to make it.@

Tucker testified that he had lived with AMargarita Tucker@ in the same residence for about seven years. He indicated that his wife=s family did not like him. He said that, after Joann had come in and put down some clothes and groceries, she came in the residence a second time and went into the kitchen where he was. He related that she told him to get out of the apartment or she was going to call the police and have him put in jail or she was going to call the owner of the apartment so they would evict him. He indicated that, after the argument, Joann grabbed a kitchen knife and tried to stab him in the back. He said that he called the police. He said she got stabbed while they were struggling over the knife. He related that she fell on the stairway after running out of the apartment. He denied that Joann=s daughter started up the stairs. He also denied coming out of the apartment.

Tucker acknowledged on cross-examination that Joann=s stab wound close to the liver was dangerous. He further acknowledged that she was bleeding but that there was no blood inside the apartment. Tucker stated that, when he called 911, he told them that he thought he needed to go to jail. He admitted that in his statement to police he said that he got the knife from the kitchen. He also indicated that he told police that he stabbed Joann because she forced him to when she grabbed him, rather than saying it was because she was trying to stab him. Finally, Tucker acknowledged that stabbing someone as he had stabbed Joann could have killed them.

We hold that the evidence is legally and factually sufficient to support Tucker=s conviction. Tucker contends that a knife is not a deadly weapon per se and that the evidence is insufficient to show in this case that the knife was a deadly weapon. A Adeadly weapon@ is defined as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or 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. Penal Code Ann. ' 1.07(a)(17)(B) (Vernon Supp. 2006). ASerious bodily injury@ is bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. ' 1.07(a)(46) (Vernon Supp. 2006).

Tucker primarily relies on the opinions in Danzig v. State, 546 S.W.2d 299 (Tex. Crim. App. 1977), and Denham v. State, 574 S.W.2d 129 (Tex. Crim. App. 1978). In Danzig, the defendant stabbed the complainant with a Asmall penknife@ with a blade Aabout three to four inches long.@ Danzig, 546 S.W.2d at 300. The complainant was bleeding profusely. Id. The complainant testified that eight stitches were required to close his wounds. Id. There was no medical testimony concerning the nature or extent of the complainant=s wounds, although the wounds were near vital areas. Id. The court held that the evidence was insufficient to support the conviction, noting that the State must present some evidence, normally through expert testimony, that the weapon was used or intended to be used in such a way that it was capable of causing death or serious bodily injury. Id. at 302. Subsequently, in Denham, the court overruled Danzig to the extent that it required expert testimony to establish in a given case that a weapon is a deadly weapon. Denham, 574 S.W.2d at 131. In Denham, the evidence was undisputed that the defendant stabbed the complainant with a butcher knife, the blade of which was seven or eight inches long. Id. at 130. The complainant testified that he was in fear of his life and that he felt that the knife used was a deadly weapon. Id. at 131. The court held that the evidence was sufficient. Id.

Tucker argues that Denham overruled Danzig on other grounds, but we disagree because Danzig=s conclusion that the evidence was insufficient appeared to be based on its assumption, overruled in Denham, that the State would normally be required to produce expert testimony on the issue of whether the weapon used was a deadly weapon.

In the case at bar, the evidence showed that Tucker stabbed Joann several times with a large knife that had a blade approximately eight inches long and two inches wide and that she bled profusely. She thought she was going to die. Furthermore, Tucker himself acknowledged that stabbing someone in the way he stabbed Joann could have resulted in death. We also note that there is evidence that, while brandishing the same weapon, Tucker threatened to kill Joann=s daughter. Denham supports our conclusion that the evidence is sufficient to support the conviction. Tucker also contends that the evidence is legally and factually insufficient because the State did not produce evidence to overcome his theory of self-defense. A rational jury could have believed Joann=s version of events rather than that of Tucker. Tucker seems to contend that Joann=s testimony, being that of only one witness, is insufficient to overcome his own. He presents no authority in support of such a contention, and we are not aware of any. We overrule both issues on appeal.

The judgment is affirmed.

PER CURIAM

August 9, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.