Alex T. Ytuarte v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-98-00887-CR
Alex T. YTUARTE,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County
Trial Court No. 95-CR-5267
Honorable Bill M. White, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: March 29, 2000

AFFIRMED

Alex Ytuarte was convicted of aggravated assault with a deadly weapon and sentenced to seven years confinement by a jury. In one point of error, Ytuarte appeals his conviction by challenging the sufficiency of the evidence. We affirm the judgment of the trial court.

Facts and Background

Ytuarte was indicted for an aggravated assault upon his wife, Virginia. She testified that on the day in question, she looked out the window of her house and saw Ytuarte pulling wires out of her car. He then charged towards the front door. Although Virginia held the door in an attempt to keep him out, he broke through the door, pulled her down onto the floor, and repeatedly punched her in the face. As he was beating her, he made insulting remarks and stated, "I'm going to kill you." The children, Alex Jr. and Martina, were present during the attack and they attempted to rescue their mother. Virginia testified that at one point one of the children said, "Mom, Mom, he has a knife." She saw something coming at her, but was unsure of what it was. The object was knocked out of Ytuarte's hands and flew across the room. While she wasn't sure what got knocked out of Ytuarte's hands, she thought it was a knife and believed he was going to stab her. Both Martina and Alex Jr. testified that they saw Ytuarte take out a knife and raise it above their mother, and then Alex Jr. hit the knife out of his hands with a stick. Eventually, Virginia broke free, and she and her children managed to escape from the house.

The police officers who were called to Virginia's house testified that she had several visible scratches and abrasions on her face, and her nose was swollen. She made a statement to the officers that her ex-husband assaulted her, pulled a knife, and threatened to kill her. When the officers apprehended Ytuarte, he was carrying a lock-blade knife with a four inch blade.

This is the second time this case has come before our court for review. On October 24, 1996, Ytuarte was convicted of aggravated assault and sentenced to six years confinement. On June 3, 1998, this court reversed Ytuarte's conviction holding that the trial court erred by refusing to include an instruction in the jury charge on the lesser included offense of simple assault. Ytuarte v. State, No. 04-96-00912-CR (Tex. App.-San Antonio, June 3, 1998, no pet.) (not designated for publication), 1998 WL 281840. The case was remanded to the trial court where a jury again found Ytuarte guilty of aggravated assault, and this time sentenced him to seven years confinement. Ytuarte now appeals that conviction.

Standard of Review

In analyzing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether a rational jury could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Because it is the province of the jury to determine the facts, any inconsistencies in the testimony should be resolved in favor of the jury's verdict in a legal sufficiency review. Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).

When properly raised, this court also has jurisdiction to examine the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 131-132 (Tex. Crim. App. 1996). 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 against the great weight and preponderance of the evidence as to be manifestly unjust. Id. at 129.

The sufficiency of the evidence is measured against the offense defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." Id.

Argument

Ytuarte contends that the evidence is both legally and factually insufficient to prove the offense as charged in the indictment. Specifically, the indictment alleged that Ytuarte committed the offense of aggravated assault by knowingly and intentionally using a deadly weapon:

[N]amely: A KNIFE, THAT IN THE MANNER OF ITS USE AND INTENDED USE WAS CAPABLE OF CAUSING DEATH AND SERIOUS BODILY INJURY, and did then and there knowingly and intentionally THREATENED IMMINENT BODILY INJURY to VIRGINIA YTUARTE, hereinafter referred to as complainant, by ATTEMPTING TO STAB THE COMPLAINANT WITH SAID DEADLY WEAPON.

The State was not required to allege that the offense was committed by attempting to stab

the complainant in order to charge Ytuarte with aggravated assault with a deadly weapon. See TEX. PENAL CODE ANN. 22.02(a)(2) (Vernon 1994)(providing that a person commits an aggravated assault with a deadly weapon by using or exhibiting a deadly weapon during the commission of the assault). However, "by attempting to stab," is not merely surplusage, it is descriptive of that which is legally essential; specifically "threatened imminent bodily injury." Wray v. State, 711 S.W.2d 631, 634 (Tex. Crim. App. 1986). Where the State chooses to include an unnecessary description of a material element of the offense in the indictment, the State is bound to prove the description alleged. Pizzini v. State 981 S.W.2d 367, 368 (Tex. App.-San Antonio 1998, pet. ref'd). Therefore, because the indictment alleged the attempted stabbing of the complainant, the State was required to prove the attempted stabbing of the complainant beyond a reasonable doubt. Id. at 368.

Ytuarte argues that the evidence is both legally and factually insufficient to prove that he threatened imminent bodily injury to Virginia by attempting to stab her with a knife, or to prove that he used the knife by attempting to stab Virginia. He directs the court to the evidence that Virginia never clearly identified the knife, nor did Martina shout that he was attempting to stab her mother with a knife; although she did warn her mother that he was in possession of a knife. In addition, he points out that Alex Jr. testified that he knocked the knife out of Ytuarte's hands when it was not in motion. These facts, he argues, negate the threat and use of the knife by attempting to stab Virginia.

However, we disagree with Ytuarte's analysis of the evidence. Ytuarte attacked Virginia, threatened to kill her, pulled out a knife, her daughter warned her of the knife, she saw something she believed was a knife, and testified she believed he was going to stab her. In addition, the children testified that he did in fact raise a knife above the complainant which was knocked out of his hands by Alex Jr. Shortly after the incident, the police arrested Ytuarte with a knife in his back pocket. Based on this evidence, a jury could infer that Ytuarte intended to stab Virginia with the knife, and was prevented from doing such only by the defensive actions of Alex Jr. knocking the knife out of Ytuarte's hands. Therefore, because the overwhelming evidence was both legally and factually sufficient to support the jury verdict, we affirm the judgment of the trial court.

Tom Rickhoff

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