Jamerson, Mary Lee v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed February 27, 2003

Affirmed and Memorandum Opinion filed February 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00150-CR

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MARY LEE JAMERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 883,652

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M E M O R A N D U M O P I N I O N

Appellant Mary Lee Jamerson appeals her aggravated-assault conviction. Appellant argues the evidence is legally and factually insufficient (1) to prove appellant used a deadly weapon and (2) to sustain appellant s aggravated-assault conviction. We affirm.

I. Factual and Procedural Background

  Officer Drey of the Houston Police Department responded to an emergency call from a private home. When he arrived at the residence, the complainant was standing at the end of the driveway holding a bloody towel to her left shoulder. She reported that appellant had stabbed her and indicated appellant was inside the house. After paramedics arrived to tend to the complainant, Officer Drey attempted to talk to appellant, but appellant could not provide a coherent account of what had happened. The only other person in the house at the time of the incident was the complainant s four-year-old son, who was sleeping. Officer Drey arrested appellant, and she was later charged by indictment with aggravated assault. Appellant pleaded not guilty and testified that she acted in self-defense. The jury found appellant guilty. After appellant pleaded true to two enhancement paragraphs, the trial court assessed punishment at 35 years confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issues Presented and Standard of Review

In her first and second issues, appellant argues the evidence is legally and factually insufficient to prove the knife she used to stab the complainant was a deadly weapon. In her third and fourth issues, appellant argues the evidence is legally and factually insufficient to sustain her conviction because the State allegedly failed to rebut appellant s assertion of self-defense.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The verdict may not be overturned 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). The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the jury resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have

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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 contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of in the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). This concept embraces both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 11. Under this second formulation, we essentially compare the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder s role as the sole judge of the weight and credibility given to any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

III. Analysis and Discussion

A. Was the evidence legally and factually sufficient to support a finding that the knife appellant used was a deadly weapon?

We must decide whether any rational trier of fact could have found beyond a reasonable doubt that appellant committed aggravated assault. A person commits the offense of assault if she:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person s spouse;

 
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person s spouse; or

 
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
 

Tex. Pen. Code 22.01. A person commits aggravated assault if she uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code 22.02(a). A deadly weapon is defined as:

(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 1.07(a)(17).

In this case, the knife was not admitted into evidence and the record contains conflicting evidence as to the type of knife appellant used.[1] The complainant s hospital record states it was a full length kitchen knife. The complainant testified that it was a small butcher knife with a black handle, suitable for dicing vegetables or chopping meat. Appellant testified it was like a little butter knife and its blade was about two-and-a-half inches long.

Although a kitchen knife or eating utensil is not a deadly weapon per se under subsection A of section 1.07(a)(17), it becomes a deadly weapon if its use or intended use renders it capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). The manner in which appellant used the knife and the complainant s wounds establish it was a deadly weapon. See Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App. 1991); see also Wade v. State, 951 S.W.2d 886, 892 (Tex. App. Waco 1997, pet. ref d) (stating surrounding circumstances, including distance between defendant and victim, any verbal threats, and any witness description of the knife are relevant to deadly weapon determination).

The complainant testified that appellant banged on the complainant s bedroom door while she was sleeping and yelled until she came out. In one hand, appellant held a lit cigarette and in her other hand, she clutched a knife behind her back. According to the complainant, the two women were standing just outside the complainant s bedroom door in close proximity to each other. They exchanged profanities in their discourse about a previous disagreement.[2] When the complainant refused to apologize to appellant, appellant said, I ve got something for you, and then stabbed the complainant twice. The complainant punched appellant in the head after appellant stabbed her and then the complainant ran to the garage to call the police.

At trial, the complainant described the knife as suitable for chopping meat, and gestured to show the length of the blade. The complainant and the State s attorney also demonstrated for the jury appellant s proximity to the complainant and the angle from which she stabbed the complainant. The record does not reflect the information these demonstrations conveyed to the jury. Because this court has no way of knowing the substance of these demonstrations, in conducting a legal sufficiency review, we presume the undescribed acts supported the jury s verdict. See Rogers v. State, 756 S.W.2d 332, 336 37 (Tex. App. Houston [14th Dist.] 1988, pet. ref d); see also Gaona v. State, 733 S.W.2d 611, 613 n.1 (Tex. App. Corpus Christi 1987, no pet.) (stating appellant has the burden of providing a sufficient record for appellate review if he wishes to complain of matters which are affected by testimonial descriptions).

Although appellant stabbed the complainant twice, the medical records and the complainant s testimony showed four wounds spanning the front of the complainant s left shoulder and upper arm. Both times appellant stabbed the complainant, the knife went through her and thus created two exit wounds in addition to the entry wounds. Medical treatment included a tetanus shot, stitches, and painkillers. In her initial account to Officer Drey, the complainant reported that appellant had tried to kill her. In the patrol car, as Officer Drey drove appellant to jail, appellant told Officer Drey she stabbed the complainant and that she would do worse when released from jail. Viewing this evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have concluded the knife appellant used to stab the complainant was a deadly weapon. See McDuff, 939 S.W.2d at 614. Moreover, the record shows that the jury s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we find the evidence is legally and factually sufficient to sustain appellant s conviction, and we overrule appellant s first and second issues.

B. Was the evidence legally and factually sufficient to rebut appellant s self-defense claim?

In her third and fourth issues, appellant argues the evidence is legally and factually insufficient to sustain her aggravated-assault conviction because the State never rebutted appellant s assertion of self-defense beyond a reasonable doubt. Appellant s argument is ill-founded because the State does not have to disprove self-defense beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 14 (Tex. Crim. App. 1991). Once the defendant meets her initial burden to produce evidence sufficient to raise the issue of self-defense, the State has the burden of persuasion to disprove the self-defense evidence, but this is not a burden of production. Id. The issue of self-defense is a fact issue for the jury and a verdict of guilty is an implicit finding rejecting the defendant s self-defense theory. Id.

Appellant testified that just before the incident, she was outside, and the complainant s son came outside and told appellant the complainant was going to put her fists on appellant. Appellant allegedly went back inside the house and was in the kitchen washing dishes when the complainant entered and punched appellant with her fists three or four times. Appellant testified that there was no previous dispute between her and the complainant and that she stabbed the complainant in the kitchen in self-defense. Officer Drey testified that appellant had a large, visible lump on her forehead. Given that there was blood near the bedroom door and no blood in the kitchen, Officer Drey concluded the stabbing did not occur in the kitchen, as appellant alleged. He further testified that he arrived at the scene approximately fifteen minutes after the complainant called for help and that appellant smelled of alcohol and seemed intoxicated. Appellant was uncooperative and kicked the back windows inside the patrol car until the rubber lining fell off of the window. Officer Drey called an ambulance to take appellant to Ben Taub hospital because she complained of asthma complications. En route to the hospital, appellant removed an intravenous needle paramedics had inserted and refused to let them reinsert it. In the hospital waiting area, appellant shouted profanities at other patients and threw tubes containing her blood samples to the floor. Ultimately, the hospital released appellant because she refused medical treatment. Officer Drey then took appellant to the police booking station.

We conclude that a rational jury could have found against appellant on the self-defense issue and found appellant guilty of aggravated assault beyond a reasonable doubt. We find the jury s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule appellant s third and fourth issues.

Having overruled all of appellant s issues, we affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed February 27, 2003.

Panel consists of Justices Hudson, Frost and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] Officer Drey testified that there were four clean, wet knives in the kitchen when he arrived, but he never identified any of the knives as the weapon. The complainant testified that she searched thoroughly for the knife but never found it.

[2] The stabbing happened at dusk on a summer evening. The complainant testified that at approximately noon on the same day, she and appellant disagreed whether the complainant s son was allowed to serve himself water from a dispenser on the refrigerator.