Grover, Bryant v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 15, 2005

Affirmedand Memorandum Opinion filed December 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00672-CR

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BRYANT GROVER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 970,039

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

A jury convicted appellant of the offense of aggravated assault on a family member by threatening bodily injury with a deadly weapon. The jury found appellant=s sentence was properly enhanced by two prior felony convictions and sentenced him to twenty-eight years in prison. In his sole issue on appeal, appellant challenges the legal sufficiency of the evidence supporting his conviction. We affirm.

I. Factual and Procedural Background

Appellant resided with his wife, Sharon Harris, and her three daughters. On the morning of December 3, 2004, appellant and Harris argued over a message left on appellant=s cell phone. The argument subsequently evolved into a physical confrontation. Two of Harris=daughters, Courtney, age thirteen, and Brittany, age fourteen, were in the home and heard the couple shouting. The children confronted both appellant and Harris and the fighting temporarily subsided. Afraid that appellant would strike her again, Harris left the home and appellant followed her in another vehicle. About five minutes later, Harris returned home and appellant arrived shortly thereafter. Courtney saw appellant going up the stairs with a lighter and an extension cord covered with a paper towel. Courtney began to shout, AHe=s going to burn the house down!@ Harris, Courtney, and Brittany immediately ran outside onto the front lawn. Appellant then came outside and pulled Harris back into the house. He threw her to the ground and began to choke her. In an effort to rescue their mother, Courtney attempted to stab appellant with a kitchen knife, while Brittany tried to choke him by poking him in the throat. Appellant, who was wearing a heavy jacket, was not hurt by Courtney=s stabbing attempt because the blade bent on impact. Brittany=s actions prompted appellant to release his grasp on Harris, who quickly stood up and ran into the kitchen. Appellant then pushed Brittany into a table and followed Harris into the kitchen, took several knives, and ordered Harris, Courtney, and Brittany to go into the garage. While holding a knife in one hand, appellant stated that he was going to kill Harris and then kill himself.

Appellant then ordered the three to go upstairs. Believing that appellant was going to kill Harris, both daughters and their mother spent time saying goodbye to each other in Courtney=s bedroom. As they were talking, they noticed that appellant, who had been pacing around the house asking for roll tape and razor blades, was suddenly quiet. Harris emerged from the bedroom to find that appellant had attempted to hang himself in the stairwell using the extension cord. She attempted to cut him down with a knife that was found at the top of the stairs, but was unsuccessful. While still holding the knife, Harris and her daughters then left the house and ran to a nearby convenience store. On route to the store, Harris hid the knife she had taken from the home in the ground under a tree near her neighbor=s yard.

When they arrived at the store, Courtney and Brittany shouted to the store clerk that their stepfather was trying to kill them. Harris called 911 from the store. Appellant suddenly entered the store and demanded to see his wife, but left the store after a few moments. An officer arrived at the store in response to the 911 call. Harris informed the officer that her husband had tried to kill her and had attempted suicide. The officer drove the three back to Harris= home to continue his investigation. After it was clear that appellant was not at home, Harris showed the officer the knife she had hidden in the yard. Appellant was charged with aggravated assault.

Harris and her daughters spent the next two nights at Harris= mother=s home before returning to their home in Spring. Within the next few weeks, appellant reconciled with Harris and began to stay at her home. Although Harris did not want to press charges, appellant was arrested on February 10, 2004. A jury convicted appellant of aggravated assault with a deadly weapon and, after finding that he had been previously convicted of two felony offenses for possession of a controlled substance and for assault on a public servant, sentenced him to twenty-eight years in prison.

II. Discussion

In appellant=s sole issue, he argues the evidence is legally insufficient to sustain his conviction because (1) there is no testimony the knife he exhibited when threatening Harris was a deadly weapon; and (2) there is no evidence that the knife that was admitted at trial is the same knife he used when making the threat.

A. Standard of Review

When conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the verdict, a 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); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). During this process, we do not re evaluate the credibility of witnesses or the weight of the evidence, and we will not substitute our judgment for that of the fact finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). We affirm the judgment if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997) (en banc).

B. Analysis

1. Is the Evidence Legally Sufficient To Show That the Knife Was a Deadly Weapon?

A person commits the offense of assault if he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he knows or reasonably should believe that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. ' 22.01 (Vernon 2005). Although assault is generally a misdemeanor offense, the felony offense of aggravated assault results when either a serious bodily injury is inflicted, or when a deadly weapon is used or exhibited. ' 22.02. Appellant appears to concede that he threatened Harris with imminent bodily injury, and also does not contest that the threat was made intentionally or knowingly. Rather, appellant argues the evidence presented is legally insufficient to sustain a felony conviction for the aggravated circumstances.

Appellant first asserts there is no evidence the knife appellant used when making the threat is a deadly weapon. Under the Texas Penal Code, a Adeadly weapon@ includes Aanything 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 2005). When there is no actual injury alleged to have been caused by the knife, the State must show the knife=s capacity to cause death or serious bodily injury by showing the manner of its use, the size of the blade, threats made by the accused, or the physical proximity between the accused and the victim. Soto v. State, 864 S.W.2d 687, 691 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d) (citing Blain v. State 647 S.W.2d 293, 294) (Tex. Crim. App. 1983) (en banc)). The State may do so by offering testimony pertaining to the size of the blade, the blade=s appearance of sharpness, the use of any brandishing motions, or the victim=s fear of serious bodily injury or death. Blain,647 S.W.2d at 294 (emphasis in original).

Harris= daughter Courtney testified that appellant made the threats with the knife blade Apointed out.@ Although she stated appellant did not lunge at any of them with the knife, she noted that he was approximately two feet away from them at the time he made the threats. In response to appellant=s threats, Courtney stated that she threw herself on top of Harris to protect her because she believed appellant was serious about the threats. She also testified that Harris said Agoodbye@ to Brittany and her when they were upstairs.

Harris= other daughter Brittany testified that appellant threatened them with the knife held Ain different ways.@ She described the knife as Apointed,@ Aabout this long,@ and Akind of curved@ with a silver blade and a black handle. She stated that he Awaved them . . . back and forth@ as he talked, but did not lunge at them. Brittany=s also testified that she believed appellant=s threats were serious, and that she also had a Agoodbye@conversation with her mother.

Harris, who did not want to press charges against appellant, testified as an adverse witness. She could not remember how appellant was holding the knife, but stated that she felt scared when appellant threatened her while standing Amaybe fifteen feet@ away from her. She acknowledged that she believed appellant would follow through with his threats and that she had shared that belief in an emotional conversation with her daughters.

In sum, the State introduced testimony as to the size and appearance of the blade, the motions made by appellant, the physical proximity between appellant and Harris, and Harris= belief in the veracity of the threat at the time it was made. Appellant, however, argues this evidence is insufficient to establish that the knife was capable of causing serious bodily injury or death, because (1) appellant was fifteen feet away from Harris and her daughters when he threatened them; (2) Aappellant made no gestures or pointed any knife at anyone;@ and (3) Athere was no testimony regarding the size of the knife, how sharp it was, the length of the blade, or its shape.@

We do not find these arguments persuasive. First, although Harris testified that appellant stood at a distance of fifteen feet, Courtney testified that he stood only two feet away. The weight to be given contradictory testimony is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Gemoets v. State, 116 S.W.3d 59, 70 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Harris testified that she was appearing only because she would go to jail if she did not testify, that she did not seek to press charges against appellant, and that she did not want to see her husband incarcerated. It is entirely reasonable that a jury gave greater weight to the testimony of a teenage girl who willingly confronted the accused in court, than to the testimony of an adverse witness with an expressed desire to see him released. Second, even if appellant did not gesture or point the knife, all three witnessesCincluding HarrisCtestified that they believed appellant was going to follow through on his threat. A rational jury could conclude that testimony showing Courtney=s initiative to throw herself on top of Harris in an effort to keep appellant from stabbing Harris was sufficient evidence to show that appellant=s threat to kill Harris was made with an instrument capable of causing serious bodily injury. Finally, appellant=s third point is contrary to the record, because Brittany testified as to the knife=s size, color, and shape.

In support of his argument, appellant relies on Alvarez v. State, 566 S.W.2d 612 (Tex. Crim. App. [Panel Op.] 1978). In Alvarez, a police officer attempting to break up a fight ordered all the participants to drop their weapons. Id. at 613. Alvarez, who was holding a wooden-handled hook-type linoleum knife, refused to cooperate. Id. He advanced to within three or four feet from the officer, at which time the officer pointed his service revolver at Alvarez and ordered him again to drop the knife. Id. Alvarez then took a swing at the officer with the knife, and the officer responded by shooting Alvarez in the leg. Id. Alvarez continued to advance until the officer informed him that he (the officer) was going to have to kill Alvarez, at which time, Alvarez surrendered. Id. at 614. The Court held there was insufficient evidence that the linoleum knife was capable of causing death or serious bodily injury. Id. Appellant argues that his conduct was much less egregious than that of Alvarez, and asks us to hold that the evidence is insufficient to establish that the knife he used was not a deadly weapon.

It was not the type of weapon that led the Court to its holding, however, but the distance between the defendant and his putative target. The Eighth Court of Appeals addressed a scenario similar to the instant case in Herbert v. State. 631 S.W.2d 585 (Tex. App.CEl Paso 1982, no pet.). Herbert also involved a domestic dispute in which a husband threatened to kill his wife with a kitchen knife. Id. at 586. As here, the complainant suffered no physical injuries from the knife. Id. The husband, however, did hold the knife to his wife=s throat when he threatened to kill her. Id. On appeal, the husband also relied on Alvarez. Id. But, the court distinguished Alvarez as follows:

The critical evidentiary factor [in Alvarez] was the distance between the actor and the complainant at the time of the assault. Brandishing a . . . linoleum knife at a distance of four feet did not constitute a manner of use posing a sufficient threat of serious bodily injury or death to justify the verdict. From both a practical and legal standpoint, the effective range of the weapon is of primary consideration in categorizing the instrument as deadly. This, more than any other factor, has led to the different treatment of firearms and knives in making this determination. The distance factor, alone, distinguishes . . . Alvarez from the present case.

Id. Viewing the facts in a light most favorable to the verdict, appellant threatened Harris and her daughters with a kitchen knife when standing approximately two feet away. Because the scenario in this case is much closer to Herbert than Alvarez, we find the holding of the former to be more persuasive. Accordingly, we hold that the evidence is legally sufficient to sustain a conviction for aggravated assault.

2. Is the Evidence Legally Sufficient To Show That the Knife Admitted at Trial Was the Knife Used When the Threat Was Made?

Appellant also argues that there is insufficient evidence to show that the knife entered into evidence at trial was the knife used by appellant when making the threat. At trial, the State introduced the knife Harris hid under the tree when leaving her home. Appellant alleges that no testimony was introduced at trial to link that knife to him, and asks that we reverse for that reason.

Even assuming this argument to be correct, it is not necessary that the weapon used be introduced into evidence at trial for the state to meet its burden of proof. See Morales v. State, 633 S.W.2d 866, 868B69 (Tex. Crim. App. [Panel Op.] 1982) (affirming a conviction when the court Aknew nothing about the size and shape of the knife,@ but heard testimony as to the manner of its use); see also Herbert, 631 S.W.2d at 586. As discussed above, the testimonial evidence presented to the jury was legally sufficient to sustain the conviction.

Because we find that a rational jury could have found all the elements of aggravated assault beyond a reasonable doubt, we affirm appellant=s conviction.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 15, 2005.

Panel consists of Justice Fowler, Edelman, and Guzman.

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