LUIS AYALA, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed December 11, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00873-CR
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LUIS AYALA, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 195th District Court
Dallas County, Texas
Trial Court Cause No. F88-94819-MN
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O P I N I O N
Before Justices McClung, Lagarde and Ovard
Opinion By Justice McClung
        Our opinion of December 5, 1989 is withdrawn and this opinion issued in lieu thereof.
        Luis Ayala appeals his conviction of aggravated assault for which the court assessed punishment at 35 years' confinement. Ayala complains that the trial court erred: (1) in making an affirmative finding that a deadly weapon was used in the commission of the offense absent pretrial notice to Ayala; (2) in finding the evidence sufficient to support the conviction as alleged in the indictment; and, (3) in finding the evidence sufficient to support the identification of Ayala as the person who inflicted the wounds on the complainant. We affirm the trial court's judgment.
        Ayala claims that the evidence presented is insufficient to support the identification of him as the person who inflicted the complainant's wounds. Accordingly, we will examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review holds true for both direct and circumstantial evidence. Carlsen v. State, 654 S.W.2d 444, 449 (Tex. Crim. App. 1983). Still, a conviction based on circumstantial evidence cannot be sustained unless the evidence excludes every reasonable hypothesis except the guilt of the accused. Vaughn v. State, 607 S.W.2d 914, 921 (Tex. Crim. App. 1980). Proof amounting only to a strong suspicion is insufficient. Id. Nevertheless, every fact need not point directly and independently to the defendant's guilt; a conclusion of guilty can rest on the combined and cumulative force of all incriminating circumstances. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).
        The State submits that the complainant's identification of Luis Ayala was sufficient to support the conviction. Although the complainant was not able to positively identify the other offenders, he did identify Ayala as the man who stabbed him. The complainant testified that he was sure that Ayala and his co-defendant, David Ayala, were two of the men who participated in his attack. The complainant testified that the man who stabbed him was wearing a blue jumpsuit and identified Luis Ayala, who was wearing a gray shirt at trial, FN:1 as the man he believed had stabbed him. The complainant later testified:
        Q.    What you remember is the person in the blue jumpsuit stabbed you?
 
        A.    That is how I put it.
 
        Q.    You don't know who was in the blue jumpsuit do you?
 
        A.    I believe I do, yes.
 
        Q.    But you are not certain without any doubt?
 
        A.    I will say I believe I know who it is.
 
        Q.    You believe that it is this man here?
 
        A.    That is who it is. If I say I believe it, then I am sure of it.
 
            THE COURT: That is what you mean when you say that?
 
            THE WITNESS: (Indicates yes.)
 
        While continuing to discuss Ayala, the complainant further testified to the
following:
 
            THE COURT: Is he the one that stabbed you?
 
            THE WITNESS: As far as I'm concerned, yes.
 
            THE COURT: All right.
 
        Q.    (Defense Attorney) As far as you are concerned?
 
        A.    That is what I just said.
 
        Q.    Are you sure he is the one?
 
            THE COURT: Is he the one that stabbed you; he stabbed you, he didn't stab you, or you don't know whether it was him or not?
 
            THE WITNESS: All I can say is that I just told you that if he happened to be wearing that suit that night, okay, that is who stabbed me. That is how I am able to identify him or whatever. That is how I would say it, yes. Looking at him in a different suit, maybe his hair is different, I can't say right now.
 
        Q.    (Defense Attorney) [sic] Can't identify him in court today as the one who stabbed you?
 
        A.    I said that I believe he is, yes.
 
        Q.    But you can't identify him here in court today as the one who stabbed you without any doubt.
 
        A.    To me he is the person.
 
        Q.    To me, to whoever; what I am saying is: Can you in court today without a doubt tell the Judge that without any doubt that this is the man who stabbed you?
 
        A.    I would.
 
        Q.    You would?
 
        A.    Uh huh.
 
            DEFENSE ATTORNEY: That is good enough, thank you. Nothing further.
 
        After his initial testimony, the complainant was recalled the next day by the trial court, mainly to establish whether or not the co-defendant, David Ayala could be positively identified by the complainant. The complainant was also questioned again about his identification of Luis Ayala as the man who stabbed him, and testified:
        Q.    You tell him you are identifying this man in court today?
 
        A.    Yes, sir.
 
        Q.    On your memory of that night?
 
        A.    Yes.
 
        Q.    There is no doubt about it, he is the one?
 
        A.    That is what I said.
 
        Next we turn to the evidence which is contrary to the trial court's findings. At one point during the complainant's testimony he replied; "I will put it this way. I hope he did it. I hope this gets dropped. I hope they get on the street." The complainant further testified that before the offense occurred he had been shooting cocaine. There was also the testimony from complainant's friend, Juan Luna, who was at the scene of the stabbing when it occurred. Luna testified:
        Q.    It's your testimony that Mr. Ayala, Mr. Luis Ayala had no part whatsoever in this disturbance?
 
        A.    No, if he had been there I would have seen him, you know, I would have seen him but he wasn't there at all . . . .
        Although the complainant's way of phrasing his answers was not as firm as it could have been, the record shows that the trial court carefully questioned the complainant and determined that he was positive in his identification of Ayala as the man who stabbed him. It should be remembered that this was a trial before the court, and the trial court did not hesitate to ask any question that it thought would shed some light on the identification of the perpetrators. Although Ayala disputed the complainant's testimony, the trial court, as the fact finder, was the sole judge of the credibility of the witnesses. Bridge v. State, 726 S.W.2d 558, 563 (Tex. Crim. App. 1986). Based on the evidence, the trial court ultimately found Luis Ayala guilty as charged in the indictment. Therefore, we conclude, that the evidence is factually sufficient to support the trial court's findings which were challenged by Ayala. Point of error three is overruled.        
        Points of error one and two will be discussed together. Ayala complains that the trial court erred in making an affirmative finding that a deadly weapon was used in the commission of the offense absent pretrial notice and that the evidence is insufficient to support the conviction as alleged in the indictment. The indictment in this cause alleged in pertinent part:
        Then and there knowingly and intentionally cause serious bodily injury to another, namely, RICHARD GILBERT, hereinafter called complainant, by stabbing complainant with an object whose exact description is unknown to the Grand Jurors . . .
        The recent decision in Ex parte Beck, 769 S.W.2d 525 (Tex. Crim. App. 1989), is dispositive of this point. In Beck, the appellant contended that she was not given notice that use of a deadly weapon in commission of the offense would be a fact issue in her murder trial. The indictment in Beck alleged that the defendant caused the death of the victim by shooting him with a gun. Utilizing the definition of deadly weapon as set out in section 1.07(a)(11)(B) of the Texas Penal Code, the court held:
        It is apparent that any allegation which avers a death was caused by a named weapon or instrument necessarily includes an allegation that the named weapon or instrument was, "in the manner of its use . . . capable of causing (since it did cause) death. [footnote omitted] Thus, applicant had sufficient notice that the weapon alleged is a deadly weapon and that her use of a deadly weapon would be an issue in the State's murder prosecution. (emphasis in original)
        Applying the rationale from Beck, we conclude that Ayala had sufficient notice that use of a deadly weapon would be a fact issue at his trial. Under section 1.07(a)(11)(B), a deadly weapon is "anything that in the manner of its use or intended use is capable of causing . . . serious bodily injury. (emphasis added). As noted earlier, the indictment alleged that Ayala ". . . caused serious bodily injury" to complainant by stabbing him with an object whose exact description is unknown . . . ." This language in the indictment necessarily includes an allegation that the unidentified weapon in this case, was a deadly weapon, because of the manner in which it was used (stabbing) was capable of causing serious bodily injury. Thus, Ayala had sufficient notice that the nature of the weapon alleged in the indictment would be an issue at trial and that the State may seek an affirmative finding on the use of the weapon See Gilbert v. State, 769 S.W.2d 535, 537 (Tex. Crim. App. 1989).
        Turning now to Ayala's insufficiency point and applying the standard previously set out above, we analyze all of the evidence in order to decide whether it is factually sufficient to support the trial court's findings. The record reflects that the complainant did not know the name of the instrument used to stab him. The complainant described the instrument as:
        The instrument was probably about seven inches long and with some kind of either a wooden or plastic handle on them, either a pick or screwdriver and, I mean, you know, what the instrument is. It's something I have seen before in my life. I don't know the name of it.
 
The complainant later said he had seen the instrument in someone's tool box before and described it as being in the category of a screwdriver, punch, or ice pick.
        A member of the grand jury that returned the indictment in this case testified that the complainant was not able to describe the object with which he was stabbed, and that no other witness was able to describe the object, and no one was able to recover the instrument at the scene. According to the grand jury testimony, there was no probability that the weapon would be recovered or that the exact nature of the weapon would be discovered. The grand juror further affirmed that the grand jury exercised all means available to it in determining the type of weapon used and that there was no other investigation which could have been done to determine the description and nature of the weapon.
        Dr. Martha Williams, who performed surgery on the complainant, testified that she could not say with any degree of certainty what the weapon was. Dr. Williams testified that the weapon was a pointed instrument and surmised that it could have been either an ice pick or screwdriver.
        In summary the record confirms that the weapon used was a pointed instrument that could have been a screwdriver, ice pick, punch, or similar instrument, but could not be described with certainty by any witness. No weapon was discovered at the scene and the complainant could not give a name to the instrument at trial.
        Nevertheless, Ayala vigorously claims that the weapon cannot be termed unknown because of the testimony that the weapon was an ice pick. The use of an ice pick was one of the possibilities discussed by the complainant, Mr. Smith, and Dr. Williams. Detective Robinson testified that although the weapon was described as an ice pick in the prosecution report, the term "ice pick" was merely a conclusion drawn by the reporting officer from the wounds he saw. Similarly, the hospital records contain a reference to the complainant being assaulted with an ice pick, and Dr. Williams testified that she could not tell who that information came from, that she would be in a better position to make such a determination since she performed the surgery, and that she could not say what weapon was used.
        Thus, further investigation would not have revealed any specific information as to the type of weapon used. It is clear that the grand jury used reasonable diligence to determine the precise instrument used to inflict the complainant's injuries. Washington v. State, 677 S.W.2d 142, 146 (Tex. App.--Dallas 1984, no pet.). The State made a prima facie showing that the object was unknown to the grand jury because the evidence at trial did not show what type of object was used. Cunningham v. State, 484 S.W.2d 906, 911 (Tex. Crim. App. 1972); Washington, supra, 677 S.W.2d at 145. Therefore, the evidence was sufficient to show that the weapon was unknown to the grand jury.
        The State met its burden of proof to show that the weapon was unknown and that the grand jury used due diligence to ascertain the nature of the weapon. The evidence is sufficient to support the conviction. We overrule points of error one and two.
        The judgment of the trial court is affirmed.
 
 
 
 
                                                          PAT McCLUNG
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
880873F.U05
        
 
FN:1 Although Ayala was not identified by name at this time, Ayala later testified that he was wearing a gray shirt on the first day of trial, which is when the complainant testified that the man who stabbed his was the man wearing the gray shirt at trial.
File Date[12-11-89]
File Name[880873F]